Committee Recommends Putting the Screws to Piracy

Let’s face it, when it comes to lobbying Canada for copyright laws similar to the United States, the going has been tough for the past several years.

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

History shows that there have been many attempts.

First there was the discovery case where the CRIA (Canadian Recording Industry Association) tried to obtain the identities of Canadian internet subscribers in a John Doe lawsuit like in the United States. The CRIA lost the case because of many reasons, one of which includes the fact that Canadians already pay a blank media levy. So if the latest hits are burned to a CD, Canadian consumers are in fact paying the CRIA for the music.

Second was Bill C-60 during the last Canadian government. Sam Bulte may have ended up being the face targeted by many advocates who disagreed with what the bill represented. The bill quite possibly could have found its way to the House of Commons thanks to the lobbying powers of the big four record labels as well as CMPDA (Canadian Motion Picture Distributors Association) and a select few other organizations. The bill died when the government fell, essentially allowing opposition to win by default.

In essence, when Sam Bulte didn’t win her seat back, her party failed to win the election. Additionally, blow after blow on the publicity front may have represented a major loss for major copyright industry.

With Captain Copyright shelved and an increased awareness of things like DRM, what’s a copyright industry to do with a country like Canada today? Obviously, it’s a tougher nut to crack these days.

Well, a change of tactics is a good start. Obviously, one piece of legislation to rule them all isn’t going to work. Many Canadians now views the CRIA like a Death Star at this point. So perhaps learning from this could be of help in formulating the next plan. First, change the face from the music industry to the movie industry. Then start feeding in legislation in small doses instead.

So, first comes along the MPAA (Motion Picture Association of America.) For six months, they lobbied for Canada to “get tough” on camera piracy. Unfortunately for the Motion Picture Industry, there’s already a PR setback – the lobbied piracy statistics never added up.

No matter, a bill known as Bill C-59 was tabled. Who would support people going into a theatre and filming a movie off the screen and selling it on the street anyway? Unfortunately for the lobbyists, another setback occurred. The MPAA issued a press release that listed the countries that camera piracy incidents occurred – none from Canada. To add to that, some suggest that by the time the release was issued saying how successful camera piracy was thwarted, some users were already clicking on ‘download’ to the latest Spiderman movie. The effectiveness of Bill C-59 seemed to be turning out to be a real Tyler Durden at this point. Many advocates, by now, are noting that this is a very “thin wedge” to get more controversial legislation into the House of Commons.

In the mean time, Bill C-59 was fast-tracked to the senate. There’s even another bill being tabled that would create a ”secretariat”, who would represent the film industry right in the midst of the government. While merely a private members bill, the possibility is there that it could be passed – even though private members bills have a hard time passing in the first place.

So what’s next? The latest move seems to be coming from recommendations (PDF) by “The Standing Committee on Industry, Science and Technology.” The recommendations include essentially paying particular attention to incidences of piracy (where it comes from, how many incidences, etc.)

While broad, the recommendations get broken down further. Some of which include:

“· [2.]That the Government of Canada enact legislation that clearly defines trademark counterfeiting as a specific criminal offence under the Trade-marks Act.

· [3.]That the Government of Canada create a criminal offence for manufacturing, reproducing, importing, distributing and selling counterfeit goods.

· [4.]That the Government of Canada make the manufacture, sale, and distribution of fake labels of authenticity an offence in the Criminal Code.

· [5.]That the Government of Canada enact legislation clearly defining offences for commercial circumvention activities and making persons who distribute pirated digital works and who manufacture and/or distribute circumvention devices for commercial gain liable.

· [6.]That the Government of Canada remove the Copyright Act from the list of excluded Acts contained in the Regulations Excluding Certain Indictable Offences from the Definition of “Designated Offence” (Proceeds of Crime).

· [7.]That the Government of Canada strengthen civil remedies for counterfeiting and piracy infringements.

· [10.]That the Government of Canada increase damages and penalties under the Copyright Act.

· [11.]That the Government of Canada provide the Canada Border Services Agency (CBSA) and law enforcement officials with the express authority to target, detain, seize, and destroy counterfeit and pirated goods on their own initiative and in accordance with due process and Canadian law. The CBSA should also implement policies promoting the detection of such goods, such as mandatory reporting of brand information with shipments.

· [16.]That the Government of Canada immediately encourage prosecutors to seek more significant penalties for counterfeiting and piracy violations, including imprisonment.

· [17.]That the Government of Canada ratify the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty.

· [18.]That the Government of Canada make provisions for the release of information and samples to intellectual property rights holders for the purposes of determining whether detained goods are counterfeit or pirated and enabling intellectual property rights holders to exercise civil remedies.

· [19.]That the Government of Canada establish an Intellectual Property Crime Task Force, a partnership between government and industry, composed of police officers, customs officers, and federal prosecutors to work with intellectual property business leaders in order to guide and coordinate anti-counterfeiting and anti-piracy efforts in Canada.”

The report continues with more information, but the recommendations being made have many thinking that this may be the first sign of Canada’s version of the DMCA (Digital Millennium Copyright Act.)

While several recommendations have the language that it is targeting physical piracy, embedded into many have some element, at least, that could be targeted at file-sharers in general.

Michael Geist comments, “this report dramatically escalates the pressure for one-sided copyright reforms that mirror DMCA-style laws.”

One of the recommendations suggests that there should be an “Intellectual Property Crime Task Force” which suggests that there should effectively literally be a copyright and trademark police force.

Then there’s recommendation 18 which suggests that any information available would be released for “determining whether detained goods are counterfeit or pirated and enabling intellectual.” For those unfamiliar with the lawsuits of 2003 in Canada, CRIA (Canadian Recording Industry Association) filed 29 John Doe lawsuits against alleged file-sharers. The record companies failed to gain access to the personal information of these file-sharers because of privacy reasons. If recommendation was put in place, it would overturn the discovery case and open the doors for more lawsuits. Being the vague nature of this recommendation, one can speculate that ISP’s could possibly end up being obligated to hand over personal information over to copyright holders for the express purpose of suing or settling with individuals – a practice widely used by the RIAA (Recording Industry Association of America)

What’s more interesting is that while such a request is being made, recommendation 17 suggests that Canada ratify the WIPO (World Intellectual Property Organization) treaties. WIPO in itself has been an extremely controversial topic for many given the history of, among other things, the broadcast treaty which would automatically make television stations copyright holders of whatever is being broadcasted on television. An even stickier subject is the effects it would have on podcasting and other user generated content.

One may wonder about recommendation 11 considering it’s saying that police forces should have the ability to “target” and “destroy” alleged content while at the same time, recommend due process. One may ask, ‘how can someone make an on-the-spot summary judgment while be subject to due?’

The recommendations suggest that the mere act of distribution should be illegal – at least, one could view recommendation number 3 that way. Could this be applied to file-sharing – namely uploading? One may wonder if that was already ruled as illegal given that the discovery case in fact ruled that uploading copyrighted content is illegal already. It’s downloading that is, essentially, legal in Canada.

The report, in general, was also shot down by CIPPIC (Canadian Internet Policy and Public Interest Clinic) who notes, “the report’s recommendations – which do not even mention the word “balance” – address issues that range far beyond commercial copyright infringement, including the ratification of the WIPO Internet Treaties and the strengthening of civil remedies for copyright infringement. The government is required to respond to the report in the fall.”

It’s an interesting turn of events that went from Bill C-60 to the recommendations of today. This seems to prove the “thin wedge” theory many have noted as more pressure is applied to Canada.

One organization which is mentioned several times in the report is The Canadian Anti-Counterfeiting Network (CACN) who threw overwhelming support over the recommendations. In a report, CACN reportedly said that the government should act on these recommendations as quickly as possible.

How fast can legislation move through the government? Bill C-59 made it through from the House of Commons to the senate in 80 minutes, so “fast” can mean faster than it would take to fly from British Columbia all the way to Ottawa. Of course, one should note that Bill C-59 also had support of every single party. If such recommendations were actually adopted, there’s a chance that some parties could also disagree with it. While government is in recess, it leaves plenty of time for organizations and people to talk to legislators. It also leaves time for some publicity maneuvers by various copyright organizations as seen in the MPAA’s so-called piracy statistics throughout the major media outlets.

Drew Wilson on Twitter: @icecube85 and Google+.

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