Michael Geist
Vancouver Sun
Tuesday, June 17, 2008
Last week's introduction of new federal copyright legislation ignited a firestorm with thousands of Canadians expressing genuine shock at provisions that some MPs argued would create a "police state." As opposition to the copyright bill mounts, the most commonly asked question is "Why"?
Why, given the obvious public concern with the bill stretching back to last year, did federal Industry Minister Jim Prentice plow ahead with rules that confirm many of the public's worst fears? Why did a minority government introduce a bill that appears likely to generate strong opposition from both the Liberals and NDP with limited political gain? Why did senior ministers refuse to even meet with many creator and consumer groups who have unsurprisingly voiced disappointment with the bill?
While Prentice has responded by citing the need to update Canada's copyright law in order to comply with the World Intellectual Property Organization's Internet treaties, the reality may be that those treaties have little to do with Bill C-61.
Instead, the bill, dubbed by critics as the Canadian Digital Millennium Copyright Act (after the U.S. version of the law), is the result of an intense public and private campaign waged by the U.S. government to pressure Canada into following its much-criticized digital copyright model. The U.S. pressure has intensified in recent years, particularly since there is a growing international trend toward greater copyright flexibility, with countries such as Japan, New Zealand, and Israel either implementing or considering more flexible copyright standards.
The public campaign was obvious. U.S. Ambassador to Canada David Wilkins was outspoken on the copyright issue, characterizing Canadian copyright law as the weakest in the G7 (despite the World Economic Forum ranking it ahead of the U.S.).
The U.S. Trade Representatives Office (USTR) made Canada a fixture on its Special 301 Watch list, an annual compilation of countries that the U.S. believes have sub-standard intellectual property laws. The full list contains nearly 50 countries accounting for 4.4 billion people, or approximately 70 per cent of the world's population.
Most prominently, last year U.S. Senators Dianne Feinstein and John Cornyn, along with California Governor Arnold Schwarzenegger, escalated the rhetoric on Canadian movie piracy, leading to legislative reform that took just three weeks to complete.
The private campaign was even more important. Emboldened by the successful campaign for anti-camcording legislation, U.S. officials upped the ante at the Security and Prosperity Partnership meeting in Montebello, Que., last summer. Canadian officials arrived ready to talk about a series of economic concerns, but were quickly rebuffed by their U.S. counterparts, who indicated that progress on other issues would depend upon action on the copyright file.
Those demands were echoed earlier by the USTR, which, according to documents obtained under the Access to Information Act, made veiled threats about "thickening the border" between Canada and the U.S. if Ottawa refused to put copyright reform on the legislative agenda.
Faced with unrelenting U.S. pressure, the newly installed industry minister was presented with a mandate letter that required a copyright bill that would meet U.S. approval. The government promised copyright reform in the October 2007 Speech from the Throne, and was set to follow through last December, only to pull back at the last hour in the face of mounting public concern. (Disclosure: I created the Fair Copyright for Canada Facebook group that has more than 60,000 members and played a role in this public opposition.)
In the months that followed, Prentice's next attempt to bring the copyright bill forward was stalled by internal Cabinet concerns over how the bill would play out in public. The bill was then repackaged to include new consumer-focused provisions, such as the legalization of recording television shows and the new peer-to-peer download $500 damage award.
The heart of the bill, however, remained largely unchanged since satisfying U.S. pressure remained priority number one. Just after 11 a.m. last Thursday, the U.S. got its Canadian copyright bill.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.
He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
