Tories poised to repeat Bill C-61 copyright legislation, Geist says

The federal government is poised to introduce a new copyright bill within the next six weeks that will include American-inspired anti-circumvention measures and reject flexible fair dealing, Michael Geist says. Geist, a digital rights advocate and the Canada research chair of Internet and e-commerce law at the University of Ottawa, posted on his blog Wednesday that the Conservative government is planning “a virtual repeat” of its former Bill C-61. Geist wrote that bill would introduce strong protection for “digital locks”—or digital rights management (DRM)—like those found in the United States’ Digital Millennium Copyright Act, and reject a flexible fear dealing approach to copyright. Canada’s fair dealing provisions in the Copyright Act currently create exceptions for private study, research, criticism, review and news reporting, as specified in the act. User groups have argued that fair dealing should be more illustrative than specific, so that it facilitates documentary filmmaking and covers activities such as format shifting, recording television shows, teaching, and parody. Geist’s blog posting is likely to generate a consumer backlash before the government has introduced its copyright reform bill. Bill C-61, which died in Parliament due to the 2008 federal election, was put on the House order paper on Dec. 7, 2007, signaling its imminent introduction. But before Bill C-61 was officially released, in late 2007 Geist rallied pro-user advocates on his blog to join a newly created Fair Copyright for Canada Facebook group, which gained 40,000 members by March 2008. Grassroots activism grew online, and in December 2007, a couple dozen activists showed up at then-industry minister Jim Prentice’s Calgary office to pepper the minister with questions. The bill was then put on hold in early 2008, and not introduced until June 2008. “We have not yet tabled legislation,” Matthew Deacon, a spokesman for Heritage Minister James Moore, said in a statement by email. “People ought not judge legislation they have not read. We made our commitment to copyright legislation clear in the Throne Speech, and we will keep our commitment.” The speech from the throne said the government will “strengthen laws governing intellectual property and copyright” to protect the rights of researchers and artists. Last summer, the government held copyright consultations to help inform new legislation, which drew more than 8,000 online submissions and involved Industry Minister Tony Clement and Heritage Minister Moore in public discussions. Industry Canada says 65 per cent of the submissions consisted of form letters based on eight different source letters. Clement says he intends to introduce a copyright reform bill before Parliament’s summer recess. Observers expect the bill to be tabled in early June. Early this year, the government said that Moore and Clement were taking stock of the consultation comments received last summer. “First, the bill represents a stunning reversal from the government's seeming shift away from C-61 and its commitment to a bill based on the national copyright consultation,” Geist wrote in the blog post Wednesday. “Instead, the consultation appears to have been little more than theatre, with the PMO and Moore choosing to dismiss public opinion.” James Gannon, a copyright lawyer and associate with the McCarthy Tétrault law firm, told The Wire Report that it is premature to say the coming legislation dismisses opinions expressed in the consultations. “There was a very wide range of opinions that were expressed during the consultations,” Gannon said. “These guys , their job is to come out with legislation that is in the interest of Canada and the Canadian economy.” But Geist told The Wire Report that the majority of comments received during the consultations criticized the proposals in Bill C-61. “I think the numbers and the submissions speak for themselves,” he said. “I think the overwhelming majority of people who took time to speak out did so in a manner saying that they did not think that Bill C-61 was the right direction.” Geist added that he is confident in his sources. “I’ve got no motivation to be wrong on this,” he said. “I’m going to look like a fool, quite frankly, if I’m wrong.” Barry Sookman, a partner with McCarthy Tétrault and a lobbyist for major content owners such as the Hollywood studios and the recording industry, said that he believes the leaks are inappropriate. He said Geist is trying to influence public opinion and “put pressure on the government to change a decision that is already made.” Some observers have speculated that the ongoing negotiations surrounding the Anti-Counterfeiting Trade Agreement (ACTA) are influencing Canada’s next copyright bill. It’s believed that some decision makers do not want to table a bill that is too far out of step with Canada’s trading partners or the final ACTA text. Bill C-61 proposed anti-circumvention provisions aligned with the DMCA, but the former Liberal government’s Bill C-60 in 2005 proposed conditional anti-circumvention provisions that tied liability to the intent to infringe copyright. Bill C-60 also died on the order paper due to an election. A repeat of Bill C-61 would probably be in line with the interests of Internet service providers (ISPs), however. The bill proposed a “notice and notice” system of ISP liability, in which rights holders notify ISPs of alleged violations on their networks, and ISPs forward the notice to the alleged copyright infringer. User groups also criticized Bill C-61 for not expanding fair dealing to cover uses like parody, appropriation art or digital sampling. Documentary filmmakers and broadcast news reporters had also expressed concern that protection for DRM locks could negate existing fair dealing rights on content with DRM. Sookman said that while the bill may not propose American-style “fair use,” it could propose specific exemptions to offer more flexibility. “It’s really premature to say that the government hasn’t listened to Canadians,” he said. “Until you see the bill you can’t say that.” But Geist said he is now discouraged because he genuinely believed in the government’s consultations. “To come back with a bill that, on the core issues, is largely unchanged, really does suggest that that entire consultation was just theatre,” he said. “Maybe I was naïve, but I genuinely believed the ministers when they talked about a ‘made in Canada’ solution.” In the spring of 2008, Geist created a list of “copyright MPs” who won by a narrow margin in the 2006 election and represent ridings with colleges or universities. Geist argued that their electoral fortunes could be linked to their positions on copyright. In another recent blog post, Geist wrote that Moore has been pushing for a copyright reform bill similar to Bill C-61. “The PMO was forced to make the call after Canadian Heritage Minister James Moore and Industry Minister Tony Clement were unable to reach consensus on the broad framework of a new bill,” Geist wrote in Wednesday's blog post. news@thewirereport.ca

Tories poised to repeat Bill C-61 copyright legislation, Geist says

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Tories poised to repeat Bill C-61 copyright legislation, Geist says

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