Earlier this month, a Montreal man was convicted of illegally recording a movie in the theatre, and sentenced to 2 ½ months in jail. This case is significant, not only because it represents the first conviction under Canada’s newly updated copyright laws pertaining to pirating movies from theatres and distributing them, but also because the man convicted, Geremi Adam, may have been single handedly responsible for Montreal being called “[an] epicenter of piracy” by the American Federal Bureau of Investigation [ . . . ] a label which could have far reaching consequences for all Canadians.

Canada: the land of pirates

In 2008 the American-based International Intellectual property Alliance (IIPA) began petitioning the then-U.S. Trade Representative, Susan Schwab, to add Canada to her list of countries with the worst record of intellectual property theft.

In its request the IIPA cited Canada’s failure to update its copyright legislation and bring its laws inline with the World Intellectual Property Organization (WIPO) treaties Canada signed in 1997.
According to IIPA, Canada was responsible for US$511 million, or just under three per cent of the US$18 billion in entertainment dollars lost directly due to the theft of intellectual property, or piracy, from the American entertainment industry in 2007. While this pales in comparison to the more than US$2.8 billion the IIPA claims China is responsible for, it likely played a role in Canada’s inclusion in the White House’s list of the top 12 countries which have failed to protect American producers of copyrighted materials, which was released in April 2009. Other countries on the list included China, Russia, Indonesia and Pakistan.

In his May 1, 2009 article “Obama is proving a dangerous man for Canada,” National Post political columnist Don Martin called Canada’s inclusion on the list “ridiculous,” citing the piracy markets of other “blacklisted” countries, and saying that the “very public piracy epidemic [in those countries] is simply not matched in Canada.”

Despite the accusations of Canada’s legal indifference to intellectual property theft, Canada has been trying for more than five years to update its copyright laws, with only minor success.

Five years of Canadian copyright reform

In 2005 then-prime minister Paul Martin’s Liberals introduced bill C-60, which proposed to reform Canada’s copyright laws, bringing them more in line with the American’s Digital Millennium Copyright Act. The bill, which had been a source of controversy, died when the Conservative Party of Canada defeated the minority Liberal government in early 2006.
In 2008 then-industry minister Jim Prentice introduce bill C-61, which was the Conservative government’s version of copyright reform. The bill came under widespread criticism, and was called “unfair” for Canadians by consumer advocacy organizations, artists, privacy watchdogs and education groups.

Critics argued that the bill did not represent the interests of average Canadians, and was heavily influenced by Canada’s entertainment industry. According to critics, C-61 would have made the everyday practices of using Personal Video Recorders (PVR’s) to “time shift” television and transferring songs from compact discs to MP3 players illegal, and represented a failure on the part of the Conservative government to consult with Canadians about laws which would have a direct influence on their lives.

One outspoken critic of C-61 was University of Ottawa Internet law professor Michael Geist, who, when the bill was first leaked in December 2007, started a Facebook.com group for Canadians who were opposed to the copyright reform bill in its state at the time. After tens of thousands of Canadians joined the group in a matter of weeks Minister Prentice held off introducing the bill until the following June.

When C-61 was finally introduced in June 2008 it looked little different from the bill that Geist spoke out against in December, and still lacked the public consultations which were a major source of contention when the bill was originally leaked. C-61 died when Parliament was dissolved on Sept. 7, 2008, sparking a federal election.

During the election, Geist encouraged Canadians to ask candidates to pledge that if elected they would introduce balanced copyright legislation, which took the opinion of everyday Canadians into account. All Green Party members, a third of NDP candidates and a handful of Liberals signed the pledge.

In Summer 2009 Industry Minister Tony Clement began holding public consultations on copyright reform in the form of public hearings and town-hall style meetings, but a new version of bill C-61 has not been announced. Despite the change in the government’s approach to copyright reform a new international treaty called the Anti Counterfeiting Trade Agreement (ACTA) is currently being negotiated, and threatens to impose new laws on Canadians who “misuse” copyrighted materials.

For your eyes only

Contrary to Clement’s stated desire to consult Canadians on changes to copyright law, ACTA, an international trade agreement currently being negotiated between the U.S., Canada, Japan and a host of other countries, may make those consultations worthless if Canada chooses to follow a similar path as the U.S., which appears to be planning to impose ACTA as an “Executive Agreement” which does not have to go through legislators to be adopted or enforced.

As the name suggests, ACTA was originally designed to help curb the flow of forged products, such as designer watches and handbags, and medicines across international borders, however the treaty eventually grew to accommodate intellectual property, and its distribution on the Internet.
Developing a true picture of what ACTA proposes to enforce has been difficult since the talks take place behind sealed doors, sometimes in secret locations, and all documents pertaining to the treaty are subject to non-disclosure agreements — something the American government insists is necessary for “national security” reasons.

From what has been gleaned about ACTA, through limited official releases and leaked documents regarding the substance of the talks, the provisions most important to Canadians have to deal with the trading of intellectual property on the Internet, digital rights management (DRM) software and the criminal consequences of violating the law.

According to leaks originally posted on sites such as Wikileaks.org, the treaty could impose a French style “three strikes” rule, which would mandate disconnecting anyone accused of illegal file sharing from the Internet after a series of warnings. This proposed law in France has met with harsh criticism from the country’s Constitutional Council, which claims that the law countermands a “central principal” of French law: innocent until proven guilty, since the burden of proof lies with the accused when refuting claims of illegal file sharing. The council used this “unconstitutionality” to toss out the proposed new law.

Another provision that has fallen under criticism is the possible inclusion of criminal charges for circumventing DRM software, such as converting a DVD you own to play on an iPod or other digital media device, or even transferring music from a compact disc to an MP3 player.

Recently, members of the European Parliament voted 633 to 13 calling for ACTA transparency, specifically mentioning the provisions that would impose a “three strikes” rule, and calling for the full release of ACTA documents to the public.

Clement, in statements to parliament, stressed that while the Canadian government was taking part in ACTA negotiations — sometimes at the same time as the government was, paradoxically, holding public consultations on creating “made in Canada” copyright law — they would not take precedent over our own laws, and will be “subservient” to domestic rules, and called claims that ACTA would rob Canada of the right to set its own copyright laws “fear-mongering.” This has caused some to question why ACTA is being negotiated at all.

Geist feels that despite Clement’s assurances, ACTA will give the American government, which is already very critical of Canada’s copyright policies — or lack thereof — a foil with which to further pressure the government of Canada into adopting and enforcing laws which are not in the best interest of Canadians.

Hopefully the recent calls by EU representatives for more transparency in the ACTA negotiations will be echoed by our own leaders, and eventually lead to this treaty, which arguably could have a massive impact on the lives of everyday Canadians, being negotiated in an open forum, where Canadians can hold our representatives accountable for their actions as they represent our interests on the international stage.