More truthiness from John Ibbitson

John Ibbitson leaps to the defence of the US entertainment industry and their bid to hold back the tide of history. It is not clear at all what harms are being caused by the existing Copyright Act and why it should be fixed to make rich US entertainment corporations even richer.

To channel Dean Baker, copyright laws are an interference in the free market, but historically we have enacted them to achieve a balance between the ability of artists to make a living and users to benefit from that work. In the era of big global corporations, however, copyright is getting pulled far too much to the side of copyright owners. The US has led the way, due to heaps of corporate money in the halls of Washington.

The good news: little action on this file. Despite efforts to label file sharing as “piracy”, it is still legal in Canada. And that is a good thing.

It’s Canada’s copyright Kyoto


Last week, Heritage Minister Bev Oda and Industry Minister Maxime Bernier met to work out a final agreement on a new copyright act. They failed. The Americans are not amused.

Canada is now only a couple of months away from being labelled an international pariah, though the shame will be more symbolic than real.

First of all, why should we care if the US does not like our copyright laws, which, it should be mentioned, are in compliance with our international trade commitments. Just because the US government is captive to the Disneys and Sonys of the world, who want to enjoy fat profit streams from works produced decades ago, I do not get why Canada should cave in to that pressure.

Back in the Canada-US free trade agreement, Canada gave up significant ground on intellectual property at the request of the Americans. This was supposed to be in exchange for guaranteed access to the US market, and we have seen what a joke that turned out to be.

For the better part of a decade, this country has been trying, without success, to bring its copyright laws into compliance with those of other developed states. Canada signed the World Intellectual Property Organization treaties in 1997, which updates protections for intellectual property in a digital age.

But we have turned into a country that signs anything and does nothing. While the United States and European Union have rewritten their copyright laws to comply with the WIPO treaties, this country has dithered, delayed and deferred. The Chrétien government sloughed the matter off; the Martin government produced a bill that never made it through the House; the Harper government is struggling to come up with its own legislation.

Think of it as Canada’s copyright Kyoto.

WIPO treaties are just one venue whereby the US pushes their rules onto other countries. They are not the same as international law. For Ibbitson to compare an agreement that only serves to further enrich US entertainment corporations to Kyoto, which is about having a habitable planet a hundred years from now, is preposterous.

The file is incredibly complex — the meeting between ministers Bernier and Oda failed largely because both ministers, who are very smart, were unable to comprehend the outstanding issues well enough to reach a decision on them — but it boils down to this: Copyright owners, from garage bands to Disney, want strict prohibitions on practices and technologies that allow people to record, copy and download copyrighted works without paying for them. Their champion is the Heritage Minister.

Garage bands? Please. If anything those benefit from file sharing as it creates audiences for them to play to (which is where most of the money is made anyway). Plus file sharing is in proportion to existing popularity, so there are likely few losses at the garage band side of the market. This game is about the big players.

The Industry Minister, however, represents the ordinary user, the educator, the entrepreneur, who wants the greatest possible latitude in exploiting the knowledge and information available on discs, the Web and in databases. Consensus has, to put it mildly, been difficult to achieve.

I had thought that Industry was on-side in upgrading the Copyright Act. I am glad to hear that they are seeing the bigger picture.

The federal government could continue to avoid doing anything — not doing anything is the default position for the Government of Canada on any issue — except the Americans are losing patience. They see Canada as a haven of pirates and infringers, unwilling to protect intellectual property, of which America is the world’s largest exporter.

For example, the Yanks claim Canada is a global leader in illegally recording and distributing movies.

U.S. Ambassador David Wilkins has lobbied both Mr. Bernier and Ms. Oda, and recently sent a stern letter to Prime Minister Stephen Harper. For the Americans, intellectual-property protection is now the most important irritant in Canada-U.S. relations. If Ottawa doesn’t act, and soon, the Americans are expected to put Canada on a “priority watch list,” which would be their way of declaring that this country is a deadbeat.

What that would mean in real terms remains to be seen: Canada is a net importer of American cultural material, so the Americans’ ability to impose sanctions would be limited. This isn’t softwood, folks. What the issue really points to is the price Canada pays for perpetual minority government. The U.S. wasn’t very happy with the Martin government’s legislation — they thought it didn’t offer sufficient protection for copyright holders — but at least it was something. That attempt, however, died on the order paper.

Ibbitson concedes that there is little the US can do under international trade law because we will not kowtow to its demands, then argues that we must kowtow to its demands.

In the current situation, even if the Industry and Heritage ministers are able to resolve their differences, any legislation introduced this spring would not make it through the House and Senate until the autumn, and that’s only if the Liberals decided not to “study” — read oppose — the bill.

With each failure, American frustrations will grow, along with pressure for linkages — taking action in other trade areas to punish Canada for failing to pass a new copyright act.

What should matter to all of us, though, is Canada’s reputation before the world. If the best we can do on this, as on so many other files, is shrug and say, “Sorry, the federal government is too unstable for us to act,” what does that say?

When did Canada become Italy?

We should care about our international reputation when it comes to things like Kyoto. But I just do not get why Ibbitson so desperately feels the need to shill for an industry that wants to sue teenagers for sharing music. Hopefully, the minority government will continue and Canada can be a good international example by not doing what the Americans tell us to protect the narrow interests of a handful of insider mega-corporations.


  • Hi Marc,
    I read John’s article on line this am and wrote an opinion. There were other things going on between the lines, such as only with an majority govt can we rectify this situation, so I suggested that it was a good time to go for pp as then parties would have an interest in working more cooperatively rather than jocking for position.
    I also responded to him about them retaliating against us in other areas, and said that well, if this is going for tit for tat, well we can just turn off the oil tap! I know that may not be realistic but we do have a card these days. I also mentioned that peace in our land at any cost – such as with the soft wood lumber deal – was not going well. As we know, the amer lumber lobby is making noise again. that was short lived.
    anyway, thanks for letting me know that “in compliance with our international trade commitments”, as of course, John forgot to mention this. so why is he shilling for Corp american, or perhaps he actually doesn’t know we are in compliance? Either way, he sounded like he was acting like an american lobbyist.

  • Thanks very much for this analysis, Marc — helpful and amusing at the same time.

  • Great post and excellent points.

    I love how those from the copyright owners camp (and lets be very clear — creators and owners are 2 different species, owners always talk about artists’ rights, when advocating for stronger protections) tend to couch all of this in “rights” discourse. Copyright isn’t of course a “right” in the sense of a natural right at all. It’s a bunch of laws created for a certain purpose — to create an incentive to create. It creates an asset (which is simply a bundle of legal rights) that can be sold or licensed to create income. This is intended to reward the creator for his or her effort. That’s it. End of story. There are no absolutes, and there is no “correct” level of copyright protection than there is a “correct” set of laws that would impact real property interests (easements, environmental, what have you). Rather, there is a set of policy goals that can be achieved through the contours of the law. The rights of creators and owners should be balanced against the benefits of access.

    The WIPO stuff tries (and it is the only trade regime that attempts to do this) to force countries to have a certain specific laws. This is for the benefit of owners, and allows for no tailoring for domestic policy goals. This benefits owners in more advanced nations that have more developed r&d, technology and knowledge based industries at the expense of firms in developing nations who simply produce the licensed products. Strict intellectual property regimes and protectionist laws make it difficult to adapt existing technologies.

    IP laws are a necessary evil, however, the question is whether the strong rights regime advocated by the Americans necessarily achieves optimal utility. I suspect not, but what do I know.

    Michael Geist has a great blog on this topic that I’d recommend to anyone interested in up to the minute discusions of IP policy from a Canadian perspective.

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