CCER Refutes Lawyers Opinion on Canadian Copyright Consultation

The Canadian Coalition for Electronic Rights has posted a response to a recent opinion posted by Richard Owens, a lawyer whose been involved in, among others, the Canadian Intellectual Property Council.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

If there was anything most in the copyright debate in Canada can agree on, it’s that the consultation held last year has had quite an impact on Copyright – an impact being felt to this day. The copyright consultation put together by the government of Canada sought to take the pulse of opinion of Canadians on the issue of copyright and, potentially, copyright reform. As word got out about the consultation, it highlighted, among other things, the important role social media can have on a given debate.

The results were that the copyright consultation had one of the biggest responses from Canadians ever. An overwhelming majority of Canadians that participated said that they were against another copyright reform bill similar to that of previous bills as put forth a few years ago. The response frustrated those who were for restricting copyright because they were among a very small minority in the debate.

Now, a lawyer who is affiliated with the Canadian Intellectual Property Council which supported Bill C-61 has issued an opinion that the consultation was a “failure”. Among his arguments were that Canadians didn’t understand the issue and, therefore, do not have a legitimate opinion on the issue.

In a democratic society, all people should have a right to an opinion – that’s the point of democracy. An open consultation like that of the copyright consultation is an excellent way to extend peoples democratic voice. Not everyone has a doctorate in science, does that mean that those without that degree can’t argue that a radioactive leak in their water supply is objectionable? Not everyone is a doctor in Canada, does that mean that those who aren’t a doctor are not permitted to be a part of the abortion debate? Not everyone is a lawyer, does that mean only lawyers should have a say on changes to criminal law? Well, not everyone has a degree in law, does that suddenly mean those who don’t have a law degree are unable to have a voice in the copyright debate? No.

Another argument was that a lot of the responses came from letter forms (or templates) from the Canadian Coalition for Electronic Rights (CCER). Since they were not original writing, Owens suggested that they should be treated less respectably as suggested when he said, “Form letters are useful to some degree, but they are hardly the outpourings of hearts and minds filled by circumspect contemplation of the minutiae of copyright law.” (Page 4) . The CCER responded saying, “Mr. Owens’ criticisms and accusations represent a direct attempt to discredit and silence the voice of thousands of Canadians who made submissions to the 2009 public consultations on copyright using a form letter made available by the CCER.”

CCER commented further, “The template letter which is the basis for each submission is editable in its entirety allowing submitters to add, remove or modify any part of the letter’s content. The content of the letter itself is far from unreasonable and seeks changes to Canada’s copyright regime that are balanced and equally beneficial to consumers and creators.”

To further the points made by CCER, to write something that appears to be up to Owens standards requires years and years of writing training. I personally wrote my response as an original response, but I’ve personally been writing p2p news for over 4 years – and that’s a follow-up to the additional 4 years of extra writing experience on top – over 8 years of writing experience. It’s not reasonable to expect that kind of experience and training from every Canadian who wants to issue an opinion on copyright. Not every musician is a writer even. Additionally, not every musician, which Owens praises in his anecdotal “90%” in favour of restrictive copyright laws, is a lawyer. Are all of those musicians who are in favour of restricting copyright up to Owens standard of knowledge on copyright law? Unlikely. Those in favour of restricting copyright law could be just as uninformed as those who are for a more open standard of copyright law.

Really, the more one reads through the document, the more flaws one can find in the arguments given. Here’s another argument:

The problem with the CCER Submissions is not only that many likely come from non-Canadians, but also that it is impossible to tell — because the Submissions are all sent through a single CCER IP address — how many are duplicate Submissions. To submit multiple form letters was nearly as simple as clicking “send” multiple times. Twenty letters could come from one home computer; or, from Venezuela, Spain, or Japan.

At the same time, what if there were Canadians coming from abroad who have a legitimate concern and stake in the copyright debate? According to the Vancouver Sun in 2009, over 3 million Canadians were living abroad. That doesn’t even count how many Canadians go on vacation abroad. If a Canadian had a stake in the copyright debate, but is currently residing outside of Canada, that could easily account for many potential foreign IP addresses.

Not only is the argument that somehow there are foreign interests involved skewing numbers flawed, but completely ironic. The most wealthiest stakeholders in the copyright debate (and, most would argue, have an unfair amount of control in the debate) are foreign entities. The big four members of the Recording Industry Association are Sony, Warner, EMI and Universal. All of them are not Canadian based. What about members of the MPAA? 20th Century Fox isn’t Canadian. It’s difficult to even attempt to argue that Disney, Paramount, Warner, Universal Studios and Sony pictures are Canadian based either. What about members of the Business Software Alliance? How many of their members are Canadian based? The key question is, how much control do they have in Canada’s copyright debate? As seen in the last two copyright reform bills, quite a lot of control if you ask me.

Here’s another argument by Owens,

This is especially ironic when the overwhelming majority of form letters originated with an association of modchip distributors and were publicised internationally by sites which generate traffic from the unauthorized distribution of works protected by copyright.

That is not to discount many who are part of the open source movement who have a legitimate stake in the debate as well. This argument falls back on to the attempt to simplify the debate to nothing more than people downloading unauthorized copied of content when the debate is far more complex then that. There are those who use MythTV who have a stake in this. What about those who want to make back-up copies of legitimate paid for movies? What about Linux users wanting to enjoy commercial content? How about those who want the right to privacy and not be monitored 24/7 at the ISP level? What about people who hack computer systems trying to perfect security? Would people like the hacker that managed to retrieve hours of lost police footage once thought lost become criminal too because he may have circumvented something?

Owen also makes the wild accusation that everyone in the consultation was most likely a criminal:

the over-arching concern is still that the Submissions were made on behalf of a shadowy organization, the members of which may be criminals


The RCMP is of the position that modifying a console and computer is considered an illegal act under Section 342.1 of the Criminal Code and is punishable by imprisonment for up to ten years

The argument doesn’t stand a chance of surviving scrutiny because it makes a very unsubstantiated claim (no credible proof was put forth saying that everyone who used the CCER letter form was put forth that said that they were all criminals) and relies on the opinion of the RCMP, not a court of law, to argue that CCER users were criminal. Even the RCMP can lose on a court of law when they fully believe in something. It’s doubtful that Owens can prove that the RCMP have never been disappointed or surprised in a court decision.

The conclusion isn’t really anything to go on:

Most troubling, the Consultation was systematically abused by a clandestine group of mod-chip manufacturers, foreign websites administrators and international BitTorrent users, principally through the CCER

This claim was not proven in the paper and relies on opinions and assumptions, nothing concrete.

Clearly the Consultation process showed that international online social networks can damage, rather than enhance, Canadian participative democracy, if online public consultations are not properly designed and implemented.

Those arguing for more restrictive copyright laws in Canada have shown a clear pattern of behaviour of closed door policies and secret meetings and lunches with ministers too. The other extreme isn’t exactly a shining example of listening to Canadians either when most of the stakeholders have been shut out as clearly seen in the last town hall meeting during the copyright consultation which most agree was an act of stacking the deck.

The fact that there were so few female and Francophone Submissions is particularly troubling.

This argument is pretty much a text-book example of a red herring argument and has nothing to do with the issue at hand. So this argument too fails.

participants need to be informed of the legal and factual context in which they are making their Submissions. Despite their small number, many of the substantive individual Submissions were
thoughtful, passionate and well written. Unfortunately, the vast majority of them based their comments on misinformation, gross simplifications or fear mongering.

Personal disagreement with a submission does not invalidate that submission. The consultation was about how policies should be created, not what they are now. Name calling adds no credibility to this argument and the paper only produces three or four examples out of thousands of submissions that Owens argues is factually incorrect.

An online public consultation on a highly technical and complex area of law might provide some degree of useful context, but by and large it can accomplish little that will be of direct application. Much more useful is to solicit the opinions of the members of the communities that are truly informed.

This would defeat the purpose of a “public” consultation and would reduce it down to the status of a private consultation at best while shutting out many key stakeholders. An artist is trained to be an artist, not a lawyer, law professor or politician. Does that make an artist not a valid stakeholder, its hard to say anything but no, but this is precisely what Owens is practically arguing, to shut out artists, among others, in the copyright debate.

Owens has an opinion and he is certainly entitled to it. Unfortunately for him, it’s an opinion that is shared by a small minority of people. Owens did not adequately come to terms with this fact. What is dangerous is the idea that one opinion can magically shut out numerous other valid opinions. That is something that should not happen in a democratic society like Canada. At the end of the day, any reasonable analyst would treat this paper with a grain of salt because the analysis in the paper is little more than a host of presumptions and unsubstantiated claims. The more you study the paper, the more logical or technical flaws or outright name calling and insults. At the end of the day, you just can’t treat this paper seriously.

Further reading: Michael Geists response

Drew Wilson on Twitter: @icecube85 and Google+.

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