Guest post by Jeremy Buhler, SLAIS LIBR 561 Information Policy Class 

“The Conservatives will introduce a copyright reform bill substantially similar to C-61.”  This statement was the largely unspoken subtext framing the small-group discussions on intellectual property at the 2008 BCLA Information Policy Conference.  Because the anticipated legislation is expected to be similar to C-61 the group spent most time discussing that bill, a retrospective exercise that was still useful to a novice like me.  Abstracting from the questions and concerns raised, there are at least three characteristics of C-61 that we should watch for and oppose in any descendent bill:

1. The bundling with provisions that do not belong in copyright legislation.  Think service bundling with lock-in.  C-61 covers DRM measures and educational licensing agreements in ways that limit existing rights and exceed Canada’s international copyright obligations.  The over-representation of these or any other issues should raise red flags: why is this here?

2. Emphasis on commercial rather than creative interests.  The copyright debate is sometimes framed as a compromise between creators and consumers.  In the past this may have been the case, but in C-61 the real compromise is between consumers and industry (publishers, content providers, copyright collectives, etc).  Pay close attention: will new legislation really support content creators or is talk about artists a smokescreen for bias toward industry?

3. Shifting responsibility from individuals to service providers.  Should libraries be required to ensure digital copies of copyrighted material self-destruct after 5 days?  Should ISP’s be responsible for the content posted or accessed by their customers?  We didn’t think so - individuals need to be accountable for their own actions.  Be on the lookout for any measure that forces service providers to double as law enforcers.

How should we respond to the threat of regressive copyright reform?  Group consensus was to “keep making noise.”  Last year’s successful opposition to Bill C-61 has established a viable resistance model, but I sensed a hint of complacency in our acceptance of old battle tactics. The campaign against C-61 was largely defensive, but until Son of C-61 rears its head we have a chance to make offensive, proactive “noise”.  Michael Geist’s copyright pledge may be a good lead to follow.

Guest post by Michael McCarthy, of the SLAIS LIBR 561 Information Policy class

With those words, Doyen of the Digital Domain, Michael Geist, flew into town last Thursday (October 23, 2008) and, among other things, explained how digital advocacy played a pivotal role in mobilizing Canadians against Bill C-61.

Geist began by reminding us how last October’s Throne Speech said that technology, and this copyright legislation, would “ensure a prosperous future.” It wasn’t an easy sell for the government. Within days, Geist had organized a Facebook campaign to mobilize opposition. Fair Copyright for Canada’s Facebook network grew from one hundred members on the first day to 92,322 today.

YouTube also played a starring role in the campaign. A competition was organized, the self-explanatory “C-61 in 60 Seconds.” (See the winning entry). Twitter, Google Earth, and a host of other web 2.0 networks meshed to galvanize the opposition. As Geist said, before the campaign, “People didn’t think these things affected them on a day to day basis.” (BTW, check out our local grassroots coalition partner, Vancouver Fair Copyright).

Canadians connected on this issue. Torontonians took to the streets in protest. Pancake Protesters showed up at the Calgary Stampede. Thousands of hard copy protest letters arrived on Parliament Hill. All of this seems, well, somewhat unCanadian in a country presumed to be apathetic on such issues. In retrospect, the opposition to C-61 seemed vaguely reminiscent of 1960s-style activism overlaid with the instantaneity of the Internet.

In some ways, C-61 served as a test case for how the Internet will play its role in the future of citizen engagement. Geist’s final slide read: “SILENT NO MORE.” Opposition to the proposed bill also seemed to tap into a latent nationalism: it was US vs. the U.S. Yet, the bigger question remains: Are we, in fact, already the “51^st State”?

Geist stated that the Conservative government “had a pretty clear media strategy,” and that they were confident On June 12^th when C-61 was introduced. They were also “very happy with the [media] coverage” (no surprise there). However, a week later, with the grassroots’ focus on individual rights, things started heading south for the bill.

A key point made was that it wasn’t until the grassroots had done the homework that the mainstream media took up the issue. This culminated in a Globe and Mail article, “Ottawa accused of caving in to Hollywood on Copyright.”

At this point in his presentation Geist asked: “How did copyright become cool?” In a classic understatement, Geist said “I certainly blogged about it.” Copyright became cool in no small way due to his effectiveness as a change agent. Geist reminded us that “This [copyright law] is driven by political choices, not policy choices.”

As Paul Whitney told our class during his visit on October 8^th, the CLA, due to differences of opinion within the association, doesn’t do enough on the issue. Michael Geist, on the other hand, can make a definitive statement. And he has. I can’t think of anyone who has done more to further debate on Canadian copyright law than Geist. In many ways, he is the public face of the issue. His 60-minute presentation took us on a whirlwind tour of Bill C-61’s convoluted history and ended on an upbeat prognosis for the future, at least as far a social networking and political change are concerned. I particular liked his take on what’s at stake here: “our digital future is about our creative future.”

The proposed legislation is available for your reading (dis)pleasure at

http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3570473&Language=e&Mode=1&File=27

Canada, the United States, the European Commission, and six other countries are secretly negotiating a trade agreement that could sacrifice fair dealing and privacy rights, violate civil liberties and the due process of law, and have a chilling effect on free speech, all in the name of strengthening intellectual property laws.

The Anti-Counterfeiting Trade Agreement is only getting attention now because a discussion paper with some details of the agreement was leaked to Wikileaks on Thursday. Since then, there have been two stories about ACTA on Slashdot and articles in a number of Canadian newspapers, including the Globe and Mail and various components of the Canwest empire.

Among other things, ACTA would:

• make infringement a criminal, rather than a civil matter (you can go to prison for trivial non-commercial infringement under ACTA);
• give border guards the authority to search your possessions for infringing content, and confiscate and destroy your laptop or iPod if they decide it has infringing content on it;
• require ISPs to spy on their customers’ online activities and block access to infringing content; and
• allow governments to share personal information about their citizens, evading domestic privacy laws.

These provisions are excessive. First of all, IP protections already quite strong, and existing agreements like TRIPS already cover the concerns ACTA is intended to address. Proponents of the new treaty have presented no evidence that it is necessary. The proposals stem from an unquestioned assumption that stronger IP rights are a good thing, despite vociferous objections from the library community, public interest groups, and ordinary people who feel that IP laws are already too harsh and unbalanced. Unsurprisingly, ACTA apparently makes no attempt to safeguard fair dealing or other end user rights — it’s all about defending the interests of intellectual property owners, with no recognition that copyright and similar laws are supposed to strike a balance between creators’ and users’ interests.

But it’s the new powers proposed to defend owners’ interests that are most alarming. Of particular concern is the plan to turn border guards and ISPs into copyright cops. Border guardsa and ISPs are not qualified to determine what qualifies as infringing content. Border guards in particular are paid to blindly enforce poorly designed rules (as anyone who’s had their toothpaste or hair gel confiscated at a security checkpoint can tell you). They are not IP experts, and no matter how well-trained they may be, they are not qualified to evaluate whether or not you have the right to have a copy of some song on your iPod.

The same is true of the ISPs, as we’ve seen over and over again in the years since the DMCA came into effect in the United States. ISPs have neither the time nor the expertise to judge infringement claims on their merits; as a result, they end up taking infringement claims at face value. In the US, where a notice-and-takedown system prevails, claims of copyright infringement are frequently abused to attack people exercising their free speech rights. The Chilling Effects Clearinghouse documents hundreds of these abuses. ACTA would only make the problem worse by expanding it to other countries — including Canada.

Underlying these concerns is the plain fact that the ACTA proposals would violate the due process of law. Border guards would be permitted to examine, seize, and destroy your property without judicial oversight or proof of guilt. ISPs could cut off your Internet access, not even because you’re a proven infringer, but because some random entity claims you’ve infringed their IP rights. That’s not how things are supposed to work in a democratic society.

But of course, there’s nothing democratic about ACTA. The agreement itself has been developed behind closed doors. It will likely be tabled for discussion at the upcoming G8 meeting this July, but so far no draft text has been released for public scrutiny. Civil society groups have been systematically excluded from the process of drafting the agreement (private industry lobby groups, by contrast, have apparently been involved from the beginning). There was a three-week consultation period in April, but if the government is only giving the public three weeks to respond to something, you can be sure they’re not particularly interested in what the public has to say. Organizations with limited resources, like BCLA, often can’t research the subject, draw up a response, and submit it within that period.

Even the structure of the agreement is anti-democratic. It’s being negotiated among powerful developed countries with strong intellectual property regimes. Developing countries, which have a very different IP agenda, have so far been excluded from the discussion. If ACTA is enacted, those countries will be forced to sign on, and are expressly forbidden from renegotiating the terms of the agreement when they do so.

ACTA is a bad piece of work. It’s unnecessary, unbalanced, and excessive; its development and proposed implementation are profoundly undemocratic; and it will seriously undermine fundamental rights and principles like privacy, free speech, and the due process of law — all in the service of narrow private interests. Librarians, and all Canadians, should oppose this alarming agreement.

UPDATE, May 30: Michael Geist reports that ACTA is “gaining steam, with a binding international agreement likely by the end of the year.”

Back in June, a group of activists in the Lower Mainland distributed a parody issue of the Vancouver Sun, highlighting what they saw as the paper’s strong pro-Israel bias. As you can see, it was extremely well-executed. When I saw a copy at a local cafe, it took me a few moments (and a closer examination of the content) to realize that it was a parody. This press release from the Palestine Media Collective has more details.

Unfortunately, the giant media corporation that owns the Vancouver Sun is suing the parody’s creators.

A writ of summons filed by CanWest Mediaworks Publications alleges that long-time left-wing activist Mordecai Briemberg, other unidentified activists and Horizon Publications conspired to produce and distribute a phoney edition of The Vancouver Sun on June 7, 2007. […]

The suit said the defendants were “motivated by hostility to the principal shareholders of the plaintiff and by a desire to undermine, or hurt, the business of the plaintiff and its principal shareholders.”

The plaintiff’s writ, submitted by lawyer David Church, said Briemberg and six other unidentified people are involved in anti-Israeli, pro-Palestinian media activities.

The writ alleges that the defendants “harbour antagonistic views towards the plaintiff, its principal shareholders and the reporting and editorial opinions expressed in the plaintiff’s publications, including in The Vancouver Sun.”

Just as a reminder, CanWest owns the Vancouver Sun, the Vancouver Province, the Vancouver Courier, the Victoria Times-Colonist, the National Post, the Ottawa Citizen, and a few dozen other major and minor Canadian newspapers — not to mention Global (one of the major Canadian television networks) and several cable TV channels. Clearly they have trouble with the concept of dissenting opinions.