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Is Prentice's Copyright Bill Born in the U.S.A.?

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With Industry Minister Jim Prentice preparing to unveil his controversial copyright bill, there has been considerable speculation about the role that the U.S. government has played in pressuring Canada to move on the copyright file.  U.S. Ambassador to Canada David Wilkins has been very vocal, repeatedly, if misleadingly, claiming that Canada's copyright laws are the most lax among the G7 nations.  

While the influence of the U.S. government in crafting a Canadian version of the U.S. Digital Millennium Copyright Act has been a recurring theme, what has gone largely unnoticed is the role that some Canadian lobby groups have played in quietly encouraging the U.S. to step up the pressure.  Indeed, according to documents recently obtained under the Access to Information Act, last spring Canadian Recording Industry Association President Graham Henderson met with Wilkins' counterpart - Canada's Ambassador to the United States Michael Wilson - to encourage him to pressure both governments to prioritize U.S. style copyright reforms.

The private May 2007 meeting led some government officials to openly question why the Ambassador would be willing to meet with CRIA on such a sensitive file.

A report on the meeting noted that Henderson told Wilson that "everything the Embassy hears from stakeholders on IP issues is true." He added that the government should prioritize the ratification of the World Intellectual Property Organization's Internet treaties, remarking that the only prior attempt to address the issue - the Liberal government's failed Bill C-60 - died before the lobby group was "able to fix it in parliamentary committee."

Henderson also dismissed the privacy related concerns associated with copyright reform (recently reiterated by Privacy Commissioner of Canada Jennifer Stoddart in public letter), arguing that the government should not concern itself with the issue.

The internal reports on the meeting reveal not only efforts to fan the flames of U.S. pressure on Canada, but also the skepticism of policy makers with the U.S. and lobby group claims   within both Industry and Canadian Heritage. The briefing note jointly prepared by the two departments for Wilson advises that "the Government is aware that TPM [technological protection measures] enforcement is strongly requested by some rightsholders such as CRIA.  However, many Canadians have raised concerns over public interest issues such as their potential impact on privacy, innovation, competition, and consumer choice."

It also downplays U.S. criticism of Canadian law, stating that the U.S. Trade Representative Special 301 Report, which Prentice has presumably relied upon to support claims that Canada's trading partners have criticized the current copyright law, was "essentially based on U.S. stakeholders' submissions on alleged denials of adequate or effective intellectual property protection."

In fact, an early draft of the document went even further, cautioning that this issue has "raised considerable world wide controversy and media attention over the years, where all countries who have been trying to implement TM [technical measures] legislation have had to go through the slow process of carefully balancing the public interest."

The concern expressed by tens of thousands of Canadians is that calls for balance have not been heard, drowned out by the vocal lobbying from the U.S. and well-connected lobby groups.

The Conservative government campaigned in 2006 on a platform of government accountability and transparency to put an end to these forms of secretive influence.  If the copyright bill proceeds without addressing public concerns and before conducting the promised House of Commons review of the WIPO Treaties, Canadians will be left to ask whether Prentice's plan is a made-in-Canada solution or, as it appears, a bill that was born in the U.S.A.

 
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at www.michaelgeist.ca.