Saturday, October 18, 2008

Ottawa Centre: "Didn't you hear us last time?"

I think it is fair to say that a lot of people across Canada are scratching their heads this week, wondering what the point of this election was--what it accomplished.  I suspect there are actually some answers to those questions, but they will probably take time to emerge.  In the long view, this election may be thought of as a significant one, perhaps as the time when it became obvious that the structural divisions that befuddled the right for the past 15 years have now taken firm hold of the centre-left.  However, in the short run all that is immediately evident is that the Canadian electorate rejected the opportunity to make any major changes to things, and instead voted quite firmly for the status quo.

Nowhere is this more evident than in the Ottawa area, where every single riding returned an incumbent MP.  Within the region, Ottawa Centre wasn't satisfied merely to produce the same outcome as the previous election.  No, we apparently did our darndest to produce the same vote counts as for the previous election.  Take a look...

2006 2008 Change
NDP 24609 25399 790 3.21%
Liberal 19468 16633 -2835 -14.56%
Conservative 15105 15065 -40 -0.26%
Green 6765 6348 -417 -6.16%
Marijuana 387 378 -9 -2.33%
Marxist-Leninist 69 95 26 37.68%
Communist 102
-102 -100.00%
Independent 121
-121 -100.00%
Rejected 324 266 -58 -17.90%
Total 66950 64184 -2766 -4.13%

Aside from a group of about 2800 Liberal voters who apparently chose to sit on their hands (the drop in total vote being remarkably close to the drop in the Liberal vote), the differences are in the noise.  Fewer than 800 votes changed hands (1.2% of valid votes cast), and they all went to the incumbent.

One could take that as a rebuke to the electoral process itself--or at least a rejection of the decision to call an election.  ("Damn it, we voted like this, and we meant it!  Now stop bothering us.") But the overall turnout remains pretty high in Ottawa Centre.  At 71%, it is well above the national average, at least.  So if Ottawa Centre voters are perhaps hide-bound traditionalists, they remain engaged hide-bound traditionalists.

Thursday, October 16, 2008

Post-Electoral Numerology

This election has had the lowest voter turnout in Canadian history  What does that mean?  Among other things, it means that all of the major parties had fewer votes cast for them in this election than in the election of 2006--even those who increased their vote share.  Of the Federally-funded parties, only the Green Party saw an increase in absolute number of votes.

These two charts display the change of total votes received by each party.  First, as a difference from the election of 2006, and second as a trend over the past three elections.  If you are a Liberal strategist, that trend line should have you sweating profusely, and possibly muttering darkly about the end times.  That's a decline of 1.35 Million votes or 27% in four and a half years.  (Exercise for the reader: if these trends continue, when does the Liberal vote drop below that of the NDP?)  But really, nobody--except perhaps the Greens--should be taking solace in these numbers, if for no other reason than that the Quarterly Allowance payments under section 435.01 of the Canada Elections Act will decline commensurately.

The Conservatives can, of course, look forward to having the fact that only 22.2% of eligible voters supported them raised every time they try to claim to have a mandate to govern.  Jack Layton's concession speech on election night didn't include this number--but probably only because it wasn't yet known at that point.  He certainly emphasized the Conservative's minority status, and how this imposed a requirement to seek the consent of parliament.  It would be consistent with his usual practice to at least rhetorically acknowledge a similar requirement for the consent of the populace.

Many people are pointing at the results of this election as evidence of the need for electoral reform--typically with some kind of proportional representation system being held up as the way to re-engage the electorate.  It might work.  I'm not convinced.  The argument seems to turn on whether the resulting parliament would be more appealing to the current non-voter, which seems impossible to predict.  In any case, pure proportional representation reduces the voter's choice to selecting a party--which isn't all that helpful if none of the parties actually represent the voter's interests.  I think, if I had absolute freedom to construct an electoral system, I'd prefer to outlaw parties and put the emphasis on choosing specific representatives, personally.  For that matter, various reality TV shows demonstrate that it would probably be feasible to have direct voting on specific issues on a regular basis, which could render the representative moot.

However, before getting too side-tracked by a consideration of theoretical electoral systems, there are other questions to ask about how this one worked, particularly with respect to strategic voting.  Two questions I was asking myself on election night were: A) did the Bloc Québécois prevent a Conservative majority; and B) did the Green party split the "pro-environment" vote in any meaningful way?  To explore these questions, consider the following table.

Actual No BQ NDP + Green Liberal + Green Liberal + NDP Liberal + NDP + Green

Conservative 143 156 138 130 114 91

Liberal 76 110 72 98 155 179

NDP 37 40 46 33 - -

BQ 50 - 50 45 37 36

GRN 0 0 - - 0 -

Other 2 2 2 2 2 2

On the left are the actual seat numbers from this election, as of this morning.  The remaining columns are hypothetical results derived from the reported vote counts under various hypotheses.  

The first column--labelled "No BQ"--awards every seat won by the Bloc to which ever candidate came second in that riding.  One can argue about how accurate this is as a model of what the vote would be if the BQ didn't run.  Effectively, it assumes that the second choice of Bloc voters is not distributed significantly differently than the first choice of other voters, within each riding.  In fact polling data suggests that Bloc voters have a preference for the NDP as a second choice.  So this analysis may overestimate the Conservative seat count for this hypothesis, and underestimate the NDP.  But with that caveat, the result is that the Conservatives would pick up enough seats to reach a majority.  So, yes, there is some justification for a claim that the BQ prevented a Conservative majority.

The next two columns show the seat counts if all of the Green party votes were rolled in with either the NDP or the Liberals.  While there are a number of ridings that swing in this analysis, it isn't enough to substantially change the outcome.  In both of these scenarios, the Conservatives still win a minority government, with a gain in seats relative to the previous election.

By contrast, the last two columns demonstrate that if the NDP vote was rolled into the Liberal party (with or without the Green vote) it would be enough to convert the Conservative minority into a Liberal majority.  This is not at all surprising, since it amounts to introducing a two-party scenario into a first-past-the-post vote count.  The Conservatives are a lot more likely to win their seats outright that the other parties--they received more than 50% of the votes cast in 55% of the ridings they won, where the other parties did so in more like 20% of ridings they won.  But with only 37.6% of the popular vote, geographic concentration works against you; excess votes in a riding you have already won are of no use in winning other seats.

It's also not desirable, I would argue, to reduce the entire spectrum of possible electoral choice to Conservative vs. not-Conservative.  In fact, if it is necessary to do so in order to prevent the Conservatives from winning, this would seem to support the legitimacy of the Conservative victory.  Their mandate, however thin, does represent a functional coalition of votes that agree to support that platform; whereas the coalition one would have to assemble to defeat it contains some rather substantial policy differences.

Which suggests that there is little more to be gained by leveraging strategic voting against the Conservatives.  For another party to take power, without collapsing into a two-party system, they will have to pull votes from the Conservatives, or from the growing pool of non-voters.  


Tuesday, October 14, 2008

President Bush signs PRO-IP Act

President Bush signed S.3325, now known as the Prioritizing Resources and Organization for Intellectual Property Act, or PRO-IP Act, into law on Monday Oct. 13, 2008.  This signature comes despite the bill still mandating the creation of an IP Enforcement Coordinator office within the White House--something the administration had previously characterized as "objectionable on constitutional separation of powers grounds".  As I have mentioned previously, one of the roles for this office will be to coordinate international pressure tactics, intended to promote an enforcement-oriented approach to IP law around the world.  The law will also authorize appropriations to fund enforcement activities at the local and national levels.

Beyond the creation of additional bureaucracy, the primary impacts of the law are: 
  • to increase the statutory damages and other remedies for civil counterfeiting cases; 
  • to prohibit the importation or exportation of "copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable"; and,
  • to add broad new forfeiture requirements, allowing the US government to seize "[a]ny property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense" under criminal copyright infringement statutes.
The latter provision is troubling, since it is rather broad, and could on its face be interpreted as allowing the seizure of any and all communication infrastructure involved in distributing infringing material.  While it is perhaps unlikely that the US government would (or could) attempt to seize the entire network infrastructure, it seem likely that innocent third parties will suffer when shared resources are affected.

This bill was supported by the RIAA, the MPAA, the US Chamber of Commerce, and the AFL-CIO.  It was opposed by Public Knowledge, the Electronic Frontier Foundation, the American Library Association, and at one point, the Bush administration itself.  However the most controversial aspect of the bill--a provision that could have diverted public resources into pursuing civil actions on behalf of (and to the benefit of) private rights holders--was dropped.

Friday, October 10, 2008

Brian McGarry has a bad day

“Do you think Brian wears a toupée? I know that's a shallow question, but...” I was sitting with Nik Maak—author of the blog Kill Everything—in the auditorium of Glebe Collegiate. An Ottawa Centre all-candidates meeting had just wrapped up, and he was talking about Brian McGarry. Nik doesn't particularly like Mr. McGarry. I shook my head, and maybe mumbled something. But, before I could really answer, he was continuing. “If Gilligan and Mr. Howell had a love child, that's him. You know. He's kinda goofy, but kinda mean at the same time.” (Or maybe he said “stern”. I don't really remember.) I reflected on this for a moment.

“Yeah, and there's a bit of a physical resemblance, too” I admitted. “I guess that's why I think it's his real hair. He seems like the kind of guy who would grow hair like that.” It seemed unkind to be picking on McGarry—he hadn't had an entirely successful evening, after all. But he brings it on himself. His performance that evening practically demanded mockery.

Mike Cassidy happened to be sitting behind Nik. Before the meeting started, I overheard him say “He's really one of the more decent Conservative candidates...” It was clear he too was talking about McGarry. I'm not sure whether he meant in this election, or compared to candidates Cassidy had faced before. He had been leader of the Ontario NDP before Bob Rae. Like Bob Rae, he moved on to federal politics; but unlike Rae, he stayed with the NDP. He won Ottawa Centre in the federal election of 1984 by a margin of 54 votes. Presumably he's seen his share of Conservative candidates. But you also have to figure that if Mike Cassidy is being sympathetic to a Conservative, that Conservative isn't seen as much of a threat.

* * *

The format for this meeting was odd. There were the usual opening statements, then two prepared questions: one from a student; one from a community association representative. So far so good. The community associations and high school were hosting, so you'd expect them to give themselves some kind of panel questions. It was the way the floor questions were handled that was odd. There were no microphones. Instead, students collected written questions, which were then read by the moderator.

The goal, we were told, was to keep things moving quickly—to avoid wasting time at the microphones—so as to get to as many questions as possible. I'd come with a vague plan to ask a question about ACTA, but I didn't have anything written down. I was just going to wing it. So I tried, twice, to write something out while simultaneously taking notes. It didn't really work. So my question didn't make it into the pool.

My question was going to be something like this: The Canadian government has been participating in negotiations to establish an Anti-Counterfeiting Trade Agreement (ACTA) for the past year. This treaty process has been widely criticized as being secretive, and undemocratic. Although the content of this treaty is unknown, it is rumoured to require member nations to divert public funds into the enforcement of private Intellectual Property rights, on behalf of rights holders—a proposition that was recently rejected by the Departments of Justice and Commerce in the US. In fact, Senators Leahy and Specter, authors of a bill that would have implemented such a provision published an open letter last week decrying the secrecy and the breadth of these treaty negotiations. When two of the strongest proponents of IP enforcement regimes, as well as most proponents of IP liberalization agree that the ACTA process is severely flawed, is it not time for the Canadian government to consider opening it up to a little public scrutiny?

It's too long, of course. I was working on editing it. Oh well. The thing is, you can probably predict what answers the candidates would have given, anyway. Still, it might have been nice to get them on the record on the subject.

Nik had a question too. He had brought his in written form, so was ready to toss it right into the basket when the students came around. His question, more or less, was why should we take seriously candidates who don't care to engage the electorate? The pointy end of that stick was directed at Penny Collenette, as much as it was at McGarry. Both of them begged off several of the “all-candidates” meetings, over the course of this campaign.

The moderator said she'd received more than 75 submissions. By the time Nik asked about McGarry's hair, we'd heard 42 of them. Nik's wasn't one of them. Somebody else asked a question about Conservative secretiveness and gag orders on local candidates, though. McGarry's response was adamant: there was no gag order on him. He'd answer any question, any time, with honesty and integrity. How this was going to happen when he'd elected not to attend six of the eight scheduled debates or all-candidates meetings in the riding wasn't clear.

To his credit, his campaign office was the only one that responded directly to my copyright policy questions. The response didn't really answer them—it was a canned statement about how “the Conservative government consulted widely with Canadians and stakeholders and delivered a made-in-Canada approach that struck a balance between protecting the rights of consumers while respecting the rights of creators and copyright owners” and how “[i]f elected, Brian will certainly ensure that your opinions on this matter are heard clearly from within the Government.” But it was a response. (For the record, I also received an invitation to a Policy Parlour discussion from Jen Hunter's assistant. I guess you could consider that a response, too.)

I'm still picking on McGarry. I can't help it. In response to a question about how to make communities more livable, most of the candidates talked about financial transfers to municipalities; McGarry talked about having been a school board trustee. When asked about the decline of voter participation, McGarry quite earnestly announced that he wasn't going to fine people for not voting. (Nobody had raised this possibility.) When asked what platform items might have to be delayed in the event of a severe economic downturn, McGarry's response was “I know what you want me to say: cut the arts! Well no way.” He then went on to talk about cutting four-lane highways. And when asked about whether he'd been interested in politics as a child, he went off on some tangent about how he used to be a Liberal, and how it was a shame he couldn't be one anymore. But the absolute topper has to be the question about abortion rights, to which he answered that one should “celebrate most cases.”

Time and time again, he kept saying things that were just plain weird. Things that left me scratching my head, wondering what he was thinking—why he would say that.

One thing I have to say, though: both Paul Dewar and Penny Collenette remarked on how respectful the evening had been. Collenette went so far as to call it a “new model for politics”. I suppose that as far as the candidates were concerned, it was reasonably respectful. But I didn't feel a lot of respect from the audience directed towards Brian McGarry. When he mentioned a hearing problem, while asking for a somewhat strange and hostile question to be repeated to him, there was laughter, and not the laughing-with-you kind. That seemed uncalled for.

After all, it clearly wasn't his day.

Thursday, October 9, 2008

ChoiceBot for the Canadian Election

Here's a fun toy: it's a ChoiceBot that has been set up for the Canadian election.  ChoiceBots are decision-assisting tools that help break down a choice into various questions where the alternatives are laid out so you can rate them.  In this case, the questions are various policy issues, and the alternatives are drawn from the party platforms.  It doesn't seem to have been updated after the release of the Conservative platform--a number of issues show "Not announced on party website" for them--but you can of course ignore the write-up that's presented and reflect on your own understanding of the policies and platforms.  Anyway, it's kind of fun to play with, and it might be useful for exploring second choices or other strategic voting questions (if you're so inclined).  Enjoy.

Wednesday, October 8, 2008

Illegal election advertising in Ottawa Centre?

While out for a walk this afternoon, I came across a number of makeshift signs for John Akpata of the Marijuana Party, like the one pictured here.  This one is on the north side of Albert St., at the intersection with Preston.  There are others around.  As can be seen in the photo, the signs appear to be leftover Greg Laxton signs from the 2007 Ontario election, with Mr. Akpata's name painted on them, apparently by hand.

Because the signs are hand-painted, there's some variation, but generally the Green Party name, and in some cases the logo, are pretty recognizable.  So much so that my first thought when I saw one of these signs from a distance was "Why is Akpata trying to pretend he's running for the Greens?"  From up close, it's easier to see that these are old Laxton signs from the Green Party of Ontario, not the federal party.  So my second thought was that this was quite resourceful, and a good way to re-use the material.  But my third thought was to wonder if it was legal.

I don't think it is.  The Canada Elections Act requires that election advertising indicate who authorized it, and these signs do not.  (The statement of authorization by the Green Party of Ontario is obviously invalid, and I don't think anyone is intended to believe otherwise.)  So, depending on whether these signs were placed by someone acting on behalf of Mr. Akpata (or the Marijuana Party), or by a third party, they would seem to be in contravention of section 320 or 352 of the Act.  In either case, whoever put them up would be potentially "liable on summary conviction to a fine of not more than $1,000 or to imprisonment for a term of not more than three months, or to both." [Canada Elections Act, section 500(1)]

One of the reasons for this requirement is that there are spending limits for election campaigns.  If election advertising can't be traced to its source, it would be impossible to actually monitor campaign spending.  So while I strongly doubt that Mr. Akpata or the Marijuana Party have the means or the intent to try to violate the spending rules, it's not a trivial matter.  Other people or groups potentially do.  So it's possibly a shame that this kind of creative re-use of waste materials can't be encouraged, but the law must apply equally to all.

UPDATE: I asked Mr. Akpata for comment.  His response, in part, was: 
i am not responsible for the signs.  i did not do this, nor did i encourage nor comission any person to do this.  apparently some person took it upon themselves to show support to me as a candidate.  i will be forwarding this to blair longley "leader" of the marijuana party to see what if any action i should take.

Friday, October 3, 2008

Thoughts on the Canadian Leaders' debates

Every time I watch one of these things I have to remind myself that for some voters, this event probably is the election campaign.  Our campaigns are short enough that if you're not a news or politics junkie, it's relatively easy to miss them.  (Well, most people would at least notice the signs, or some of the other advertising.)  The nationally televised debates are the one high profile event in the campaign.  If you're going to pay attention to anything related to the election, you're probably aware of them.

So the parties know they have a lot riding on them.  It may be their one chance to reach a potential swing voter.  And these days, it's all about the swing voter.  The leaders aren't speaking to their supporters.  Nor are they necessarily speaking to people who are familiar with the issues, the context, or the facts.  It's a tough job: you have to push your preferred message as much as possible while still presenting some semblance of answering the questions you've been asked.  And you have to react to what everyone else says.  All in real time.  I don't envy them.

In that sense, I think all of the leaders did a reasonable job in both debates.  They communicated some key elements of their platforms; they got in some jabs at each other; and they didn't screw up in any glaring ways.

Most observers seem to think that Stephane Dion had the most to gain (or lose) from last night's English language debate--particularly coming on the heels of what was perceived as a strong performance in the French debate.  Personally, I don't think he capitalized on the opportunity all that effectively.  He did a reasonably good job of appearing calm, confident, and (I suppose) prime-ministerial.  He did communicate pretty well in English--better than he often has in the past.  And he did a reasonably job of displaying empathy for voter's concerns.  But his defences against Mr. Harper's attacks on the accounting of the Green Shift financial numbers just didn't really seem entirely effective to me.  (Not that the attacks themselves were particularly subtle.  When Paiken specifically asked about this, the exchange can I think be accurately summarized as: It's a tax increase.  Not true!  Is so!  Is not!)  And with Jack Layton undermining his credibility with the occasional jab (the one about the 43 times the Liberals supported the Conservatives in the last Parliament seemed to land rather solidly) it just didn't seem like a performance that could really sway the vote in a large way.

Speaking of Jack Layton, he still reminds me of a used car salesman, but a little less so than in previous debates.  He wasn't quite as strident as he sometimes is.  But his sweater jokes weren't anywhere near as cutting as Elizabeth May's well-timed "Where is it?" in reference to the Conservative platform.  His attacks on Harper were generally the most aggressive, along with Gilles Duceppe.  That will work to his advantage, among some voters.  And he did a decent job of undermining M. Dion at the same time.  Ultimately I think he has to be reasonably satisfied with his performance.

M. Duceppe has little to gain or lose in the English debate, so he always gets to have a little more fun with it than the others.  But he just didn't seem to be quite on his game this year, compared to the last election.  He was more inclined to scrap with Harper than the others, and did force him to acknowledge a few things: that current Conservative manufacturing tax credits aren't refundable; that Québec really doesn't have its own UNESCO seat; and that the early justifications for the war on Iraq turn out to have been based largely on false information.  But he had help from Elizabeth May in eliciting the latter admission, and the UNESCO bit was really a non sequitur that didn't have a lot of impact.  And for much of the rest of the debate, it almost seemed like he was just going through the motions.  Still, his line about "I won't be PM, and neither will three of you" was a good one.

Elizabeth May definitely demonstrated that she deserved to be there.  She had reasonably policy-based answers to the questions and didn't hesitate to get into the cut and thrust, either.  Her line about the situation in Afghanistan being "too important to deal with in a history-free-zone" was a gem.  She was the only one who called Mr. Harper on the fact that he didn't really seem to have anything to say about the economy, despite his insistence that it be given extra time.  And, as I mentioned above, her "where is it?" was probably the best sucker punch of the whole debate.

Which brings me to Stephen Harper.  His style doesn't resonate very well with me, personally--he always seems to be arguing by assertion--but I think he did a decent job of seeming prime-ministerial.  He remained largely un-perturbed when the others attacked him, and he stuck to his message.  His response to most attacks seems to be to just say they aren't true, without offering any particular evidence; that seems weak to me.  Others must see it differently, since the talking heads on the various panels often seem to use it too, lately.  I think Mr. Harper's performance must have played well to his supporters, and he avoided any major gaffes.

Conclusion: Harper wins by not losing.  Dion loses by not winning.  Everyone else shores up their support, and maybe siphons some votes away from the Liberals.

Pro-IP Act authors criticize ACTA

US Senators Patrick Leahy (Dem.-VT), Chairman of the Senate Judiciary Committee, and Arlen Specter (Rep.-PA), the senior Republican member of the same panel, have released a joint letter to the US Trade Representative critical of the ACTA negotiations.  Senators Leahy and Specter were authors of the recently-passed, but as-yet unsigned, PRO-IP Act (see my previous comments about this act here and here), and are generally considered to be strong proponents of IP enforcement regimes.  Nonetheless they worry that the treaty may be too broad and too specific, and that the negotiations are insufficiently transparent and proceeding too quickly.

The letter, dated October 2, 2008, notes the senators "are concerned, however, that the ACTA under consideration will prescribe rules for protection so specifically that it could impede Congress's ability to make constructive policy changes in the future."  Their concern "is compounded in this situation by the lack of transparency inherent in trade negotiations and the speed with which the process is moving."  The letter goes on to urge the USTR "not to permit the agreement to address issues of liability for service providers or technological protection measures."  It concludes:
"We urge you not to rush into a new, broad Anti-Counterfeiting Trade Agreement that may have a significant impact on intellectual property protection at home and abroad and which can take effect without formal Congressional involvement. We encourage you to limit the agreement to improved coordination among nations and robust, but flexible standards for civil, criminal, and border enforcement."

The letter comes in the wake of a public forum held by the Bush administration that was designed to assuage fears over the ACTA, which have been widespread.  Recently Public Knowledge and the EFF launched a joint Freedom of Information Act lawsuit against the USTR, seeking the release of documents about the treaty.

See additional coverage here, here, and here.

Wednesday, October 1, 2008

Agree-a-thon in Ottawa Centre

Ottawa Centre is a fairly diverse and politically active riding, as these things go. So at election time, it tends to put-on a fair number of different all-candidates debates--including some that one might call special interest debates. Last night, at the Ottawa Public Library, there were two. The first--arguably the main event--was hosted by Capital Xtra and EGALE, and dealt with Gay/Lesbian/Bi/Trans/Queer issues. The second was hosted by PSAC, and focused on issues of interest to public servants.

I'm not gay, and I haven't worked for the public service in many years, but I thought it might be of some interest, and I didn't have anything else in particular to do that evening. So I grabbed my netbook, and headed over to the library. I thought about trying to liveblog it, but I wasn't sure my battery would last the three hours, particularly with the wireless on, so I just took some notes instead. (Actually, I don't even know if there is wifi in the auditorium, anyway.)

In hindsight, that's probably just as well. Brian McGarry, the local Conservative candidate, declined the invitation to participate. Reportedly his wife is ill, so it might not have been part of the broader pattern of Conservative candidates declining to engage with the electorate during this campaign. And arguably it doesn't matter--in its entire history, the riding of Ottawa Centre has been held by a Conservative for a grand total of five months (Robert de Cotret, PC, who won a by-election in 1978, and then lost the seat again in the general election of 1979). But regardless, his absence removed most of the debate.

Instead, what took place was mostly an agree-a-thon between Paul Dewar (NDP, incumbent), Jen Hunter (Green Party), and Penny Collenette (Liberal Party). There were some themes that emerged in the candidates' responses to the questions, and some general patterns. But the details are perhaps not all that interesting. (If anyone does want the details, my raw notes are here.) The general pattern was this: Paul Dewar was the most familiar with the issues; Penny Collenette did more Harper-bashing, and seemed to be working from a script more of the time (at one point seeming to apologize for having an independent thought); Jen Hunter was clearly not working from a script, but might have benefited from one.

Which is not to say that the candidates always agreed on the policy questions--they didn't. For example, when asked about their positions on maintaining (or increasing) funding for HIV/AIDS research, Dewar gave a straight commitment to increase funding levels to at least $100 Million/year, and to fund new vaccine work from a separate pool not to be counted against that sum; Collenette stated there was no specific dollar figure in "her" platform for HIV/AIDS research funding, but that there was an overall $500 M/year commitment to increased research funding across the board; and Hunter said that prevention was a priority for the Green Party, and apologized for not having anything more specific to say on the subject. But on the question about abortion access, and attempts to enshrine fetal personhood within the law the candidates really had nothing to disagree about. Where they differed on that response had mostly to do with how much indignation they put into it.

Some of the policy differences that did exist were relatively subtle--on marijuana, Hunter spoke in favour of outright legalization, while the other two only offered decriminalization (and Collenette only for small quantities, with no definition of "small"). Others were arguably more substantial--on access to education, Collenette offered increased access to student loans (without a means test on parental income); Dewar offered a flat $1000/year grant for all undergraduate students; and Hunter offered automatic debt forgiveness for students who graduate. (Nobody asked for costing on any of these positions; it wasn't that kind of crowd.)

Naturally, there were some amusing moments of political theatre, too. One I enjoyed came when Hunter remarked about looking at things from the perspective of an opposition member "facing a sea of blue". Dewar and Collenette both visibly cringed, and at least one of them said "No!" out loud. (Hunter paused, then said "Well, not in Ottawa Centre. I get that! The audience laughed, appreciatively.)

One strange moment came relatively late in the first debate: Collenette, in response to a question about criminalization of HIV transmission asked if it was true that transmission rates were spiking among young women. "If that's true, it would be terrible to criminalize it," she said, or something to that effect. One of the panelists (Nicholas Little, I think) jumped on this, asking why only for young women and not gay men? Collenette got a little flustered, saying that wasn't what she meant but that as a woman it resonated that way for her and "sometimes we get to speak for ourselves, as women". Dewar essentially came to her rescue, jumping in with something reasonable that I didn't write down. Then Collenette asked the panel how many convictions there had been. They didn't know, but this kicked off something of a back and forth discussion amongst the candidates, the panelists and the moderator. It was all very collegial, and more than a little odd for a campaign debate.

Speaking of gaffes, it would be remiss of me not to point out that when an audience member asked a question about the SPP, Collenette not only didn't know that those negotiations had been kicked off by the Martin government, she didn't believe it and argued with the questioner about it. Dewar had a bit of a defensive moment when talking about voting in favour of the Conservative Tackling Violent Crime Act. Hunter didn't exactly have gaffes, she just wandered into non sequitur pretty frequently, got cut off for exceeding her time allotment, and generally seemed a little disorganized.

The quote of the night came from Penny Collenette. "The Liberal Party doesn't have a position on anal sex" is not a sentence one hears in most political debates.

The second half of the "debate" was, if anything even less controversial. All three candidates more or less fell over themselves to praise the quality of the Public Service. There were some differences of policy. Dewar was firmer against outsourcing and contracting out. The other two, while agreeing that there needed to be a core of permanent full time (and presumably unionized) public servants, figured there needed to be some degree of flexibility in staffing. But they all agreed that the present government was bargaining in bad faith, and that contract negotiations needed to be more respectful. There seemed to be something of a contest going on about who could use the word "respect" the most.

Dewar didn't harp as much as he might have on the fact that it was a Liberal government that was behind the major cuts during the Program Review of the 90s, but he did bring it up. He was also the only one with visual aides. Hunter had the "huh?" moment, when she responded to a question about selling off government buildings with a discussion about tele-work. And they all got in a few digs at McGarry for not being there to defend the government's record.

Sunday, September 28, 2008

US Dept. of Justice rejects role in civil enforcement of IP

As has been reported elsewhere, the US Department of Justice responded rather critically to S.3325. The EFF has a copy of the letter. There are two principle complaints: first, that the DoJ has better things to do with public funds than provide pro bono legal representation for rights holders in enforcement actions; and second, that the mandated U.S. Intellectual Property Enforcement Coordinator (IPEC) office "constitutes a legislative intrusion into the internal structure and composition of the President's Administration."

The letter concludes: "It is our hope that changes will be made so that the President's senior advisors can recommend that the President support the measure." This is, of course, a veto threat. The fact that the letter was co-signed by Lilly Fu Claffee, General Counsel of the US Department of Commerce, can only be seen to underline the force of this threat. This was a strong signal from the administration that the bill would not be acceptable in that form.

The US Senate responded to the first complaint, by dropping that section entirely. The amended S.3325, now called the Prioritizing Resources and Organization for Intellectual Property Act of 2008, no longer authorizes the Attorney General to pursue civil actions on behalf of the rights-holders. This amended bill passed unanimously in the Senate on Friday, September 26, 2008, and now has been moved over to the House of Representatives, where it is on the suspension calendar as a postponed suspension vote and thus could potentially be passed in a matter of minutes, under the procedural rules. (Exactly how this bill qualifies for suspension under the $100 Million threshold, when it contains, by my count, $275 M of appropriations in Title IV and an unbounded ("such sums as may be necessary to carry out this title") appropriation in Title III, isn't clear to me. But then that threshold is not in the House rules; it's something the parties impose on themselves.)

The amended bill does nothing to address the second complaint, and is presumably still "objectionable on constitutional separation of powers grounds" to the Bush administration. Whether this is sufficient on its own to doom this version of the bill remains to be seen. Naturally, the other parts of the bill also remain, including the seizure powers, the increased statutory damages, and the $125 M appropriation for the enhancement of local enforcement activities. RIAA Chairman and CEO Mitch Bainwol is reportedly pleased with this, saying "Additional tools for intellectual-property enforcement are not just good for the copyright community but for consumers who will enjoy a wider array of legitimate offerings."

Public Knowledge issued a statement, saying in part "At a time when the entire digital world is going to less restrictive distribution models, and when the courts are aghast at the outlandish damages being inflicted on consumers in copyright cases, this bill goes entirely in the wrong direction." The comment about the courts is presumably a reference to the recent appeal decision ordering a new trial for Jammie Thomas, which described the statutory damage award in that case as "unprecedented and oppressive," and noted that "it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market." (my emphasis) (See also Howard Knopf's comments on this case here.)

From the Canadian perspective it is worth pointing out that one of the stated purposes of the IPEC office would be to pressure foreign governments to "establish international standards and policies for the effective protection and enforcement of intellectual property rights." Notably, sec. 303(a)(7)(C) would mandate "building a formal process for consulting with companies, industry associations, labor unions, and other interested groups in other countries with respect to intellectual property enforcement." Clearly, the opinions of citizens (of any country) are of little importance, except to the extent that they belong to "interested groups". And groups that would advocate for user's rights--like the Canadian Library Association, for example--are of secondary concern at best.

UPDATE: S.3325 was passed by the House of Representatives, shortly after 4:30 pm, in a vote of 381 yeas to 41 nays (11 not voting). It remains to be seen whether President Bush will sign it, or whether the two-thirds majority support (which is currently present in both houses of Congress) would still be there to override a veto.

Friday, September 12, 2008

Copyright expansion pressure at work in the US

Declan McCullagh had an interesting piece on The Iconoclast yesterday morning, talking about some copyright bills that are working their way through the US Congress, at the moment. One, the Enforcement of Intellectual Property Rights Act of 2008 (S.3325), which was approved by the Senate Judiciary Committee yesterday, would empower the Justice Department to pursue civil lawsuits against "any person who engages in conduct constituting an offense under section 506". Section 506 is the "Criminal Offenses" section, so it's not quite every copyright infringement; McCullagh is wrong on that point, as I read the bill. (But I admit I haven't read it thoroughly, so I may well have missed something.) But it does reduce the standard of proof required to the more relaxed "preponderance of evidence". This is important, since a lot of copyright infringements are difficult to prove beyond a reasonable doubt.

One might ask (and indeed some are asking) why it would be a good idea to spend public funds on civil litigation when the rights holders are demonstrably capable of pursuing their own suits. RIAA alone has launched over 30,000 file-sharing lawsuits in the US, over the past 5 years.

There is more in this bill: provisions about importation and transshipment; provisions about forfeiture and seizure; creation of a new "Intellectual Property Enforcement Coordinator" position within the Executive branch. Much of it seems rather similar to what the RIAA has allegedly proposed be enshrined in the ACTA. This is presumably not coincidental. And yes, it is the kind of thing that gets people talking about whether their iPods will be seized at the border:
Importation into the United States, transshipment through the United States, or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright or would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506.
A second bill, the International Intellectual Property Protection and Enforcement Act (S.3464) may also be of interest to Canadians. It proposes what amount to unilateral trade sanctions against countries that remain on the USTR's Special 301 Report priority watch list for more than one year, and who don't meet the benchmarks of an "Action Plan" designed to "achieve—(I) adequate and effective protection of intellectual property rights; and (II) fair and equitable market access for United States persons that rely upon intellectual property protection."

In 2008, that could be all of the countries on the priority watch list except Pakistan: China, Russia, Argentina, Chile, India, Israel, Thailand, and Venezuela. At least they have all been on the list for more than a year. Canada has been on the (lower priority) watch list for years, and both the MPAA and RIAA have lobbied to have Canada added to the priority list. The sanctions, which could include a ban on US Federal Government procurement of goods or services, cancellation of any preferential trade treatment, as well as restriction of various import/export and development funding programs, would not be automatic. They would be at the discretion of the President.

This bill is being sponsored by Max Baucus (Democrat, Montana) and Orrin Hatch (Republican, Utah). Baucus doesn't seem to have much of a history in IP-related issues. Hatch does. He was behind the controversial INDUCE Act, which critics claimed could outlaw the VCR, the iPod, and even the PC. Also, in a slightly surreal moment from 2003, he suggested remotely destroying people's computers for copyright infringement, while using unlicensed software on his web site.

A number of Canadian critics of the now-defunct Bill C-61 commented on the role that US pressure played in its creation. Clearly the Baucus-Hatch bill demonstrates that the US may be increasing the amount of pressure it applies to its trading partners to conform to its desires in the IP realm. And the Enforcement of IP Rights Act suggests the direction where those desires may be heading. All of which suggests that, whatever the make-up of the next Canadian Parliament, the copyright reform issue will not go away.

Wednesday, September 10, 2008

Shine on, you crazy physics experiment...

It's official, the LHC beam works. And the world didn't end. Not that you'd expect it to--the various doomsday scenarios involving micro-black holes, strangelets or cosmological phase transitions don't come into play until they start colliding the beams. All they did today was verify that they can power the beam up to its injection energy of 450 GeV and steer it around the accelerator. It will be a few weeks before they generate collisions and it will probably be a year or more before they have ramped up to full energy.

While we wait for data (or the end of the world), one way to occupy ourselves is to consider what weight should be applied to those doomsday scenarios? They're not entirely without merit--mostly they're based on reasonable theoretical possibilities. But they've been considered, more than once, already. There was the Relativistic Heavy Ion Collider review, for one. CERN has published its own safety assessment of the LHC, specifically. At some point, one has to find the basic counter-argument reasonably persuasive: particle accelerators don't do anything that nature doesn't already do, and the universe, such as it is, survives just the same.

Of course the details are rather more complicated, if you want to do a thorough evaluation. Which you probably do when the unlikely scenario has potential consequences that involve eating planets. This lesson is often illustrated in Science Fiction literature--in particular I always think of Larry Niven's "The Hole Man" (Hugo winner for Best Short Story, 1975) when these ideas come up. Vonnegut's Cat's Cradle, with it's Ice-Nine is apropos as well. But real life provides lots of examples of unlikely catastrophes that nonetheless happen. So there's clearly some value in reflecting carefully on poorly-understood risks. Here's an interesting discussion contrasting the RHIC report with LA-602, a Manhattan Project paper considering the possibility of runaway thermonuclear fusion in the atmosphere, ignited by a fission bomb.

Still, if you were really concerned about the possibility of the LHC destroying the world, would your response be to file a lawsuit complaining that the Environmental Impact Assessment hadn't been filed? I don't think that would be mine. Granted that I have never read the NEPA, but it doesn't seem likely that complying with its requirements in the first place would have resulted in anything but some paperwork. I would guess that an environmental impact assessment, had it considered the doomsday scenarios, would have concluded that expert opinion mostly suggests they are too implausible to be treated as significant impacts. So the relief being sought, namely an injunction preventing the operation of the LHC, doesn't seem justified. And that's without considering the obvious jurisdiction problems in applying a statute that deals with US Federal Government actions to a project that is under European direction. (Those are being argued, currently.)

Tuesday, September 9, 2008

Green Party v. Broadcast Consortium?

The Leaders Debate Broadcast Consortium has announced that, once again, the Green Party of Canada will not be invited to participate in the nationally-televised leaders debates during this federal election campaign. The stated reason for this decision is that three (of the four) leaders of other parties objected to Green Party representation and were threatening not to participate, and that "it is better to broadcast the debates with the four major party leaders, rather than not at all."

One wonders what might happen if that bluff was called. Would the major parties really choose not to have any televised debates rather than share a stage with Elizabeth May? This seems unlikely.

The Greens have been preparing for this possibility, which only seems sensible, since it has happened before. Just a few days previously they retained Toronto lawyer Peter Rosenthal and that they "will not hesitate to go to the courts to defend democracy in Canada".

One also wonders how they would propose to do that. This case has been tried, and lost, a few times now. In Trieger v. Canadian Broadcasting Corp. in National Party of Canada v. Canadian Broadcasting Corp. and in Natural Law Party of Canada v. Canadian Broadcasting Corp., the courts have consistently refused to intervene to "dictate to the broadcast networks what they should cover and what they should not cover as a matter of newsworthy public political debate during an election campaign."[McKeown J. in Natural Law Party] Campbell J. goes on a some length:
What the applicants are really asking this court to do is to dictate the content and the agenda of the political debate in the forthcoming federal general election. It is for the leaders of the various political parties to decide of their own free will and accord, without any coercion from this court, whom they want to debate and when and on what terms such debates should take place. It is not for this court to dictate the agenda of political debate. It is not for this court, certainly on an interlocutory application of this nature without full opportunity as at trial to canvas the facts and the legal issues, to interfere with the freedom of speech and expression of the various party leaders by dictating the debate format, content or participants. Neither is it up to this court to dictate in any way to broadcast editors what is news and what is not news, subject of course to non-publication orders in criminal cases and a few other exceptional cases. It is up to broadcasters and editors to decide what they wish to publish. Their decisions to cover a particular event or not to cover it are matters, to use the words of the U.S. Supreme Court in Columbia Broadcasting System, Inc. v. Democratic Nat. Committee; Federal Communications Com'n v. Business Executives' Move for Vietnam Peace; Post-Newsweek Stations v. Business Executives' Move for Vietnam Peace; American Broadcasting Companies Inc. v. Democratic Nat. Committee, 412 U.S. 94 at p. 118 (1973), "within the area of journalistic discretion". Those editorial decisions do not amount to the carrying out of any government function.
This would seem to offer a rather broad discretion to the broadcasters and the political parties to negotiate whatever terms for the debates they choose.

In their press release, the Green Party notes that Mr. Rosenthal "won the Figueroa case on election law at the Supreme Court of Canada." This was the case that overturned the 50 candidate rule under the Canada Elections Act. The court, in that case, did hold that the restrictions under that rule "undermine[s] the capacity of some individuals to participate in the political process" and "is inconsistent with the values of Canadian democracy."[Iacobucci J. in Figueroa] But there's an important distinction: this case was about a structural barrier to participation that existed in a Federal law. But the Canada Elections Act specifically exempts political debates from the rules covering "election advertising", and as noted above, the courts have held that they are not a "government function".

So, while it's probably a good opportunity to generate some press, it seems unlikely that a court challenge against the Broadcast Consortium's decision would be successful. Legally, that's probably the right outcome in my opinion, but it's a shame since I would have preferred to see Ms. May participate in the debate.

Monday, September 8, 2008

5 Questions (for candidates) about Copyright

Recently there has been some discussion on a mailing list I'm a member of about questionnaires to solicit candidates' positions on copyright reform, now that the election campaign is officially underway. After contributing my suggestions, I noted that I should probably just go ahead and send my questions off to my local candidates, regardless of what the other participants in the conversation decided to do. So I did. Here's what I sent, minus a short introduction:
  1. Do you agree with the Supreme Court of Canada that "[i]n order to maintain the proper balance between the rights of a copyright owner and users’ interests, [fair dealing, among the other exceptions in the Act] must not be interpreted restrictively." [CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13]?
  2. Do you believe that Canada should implement and ratify the WIPO Internet treaties (the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty)?
  3. If the answer to 2. is "yes", do you agree that the Article 11 WCT obligation (and similar obligation under Article 18 of the WPPT) can, and should, be satisfied without imposing a blanket prohibition on tools and/or technologies that may have both infringing and non-infringing uses?
  4. Do you believe that the current private copying regime for audio recordings defined by Part VIII of the Copyright Act, including the associated levy and collective society is basically fair to both rights-holders and users of recordings?
  5. Do you believe that a creator's right to control their creation includes the right to control or limit a consumer's private enjoyment of property?
I don't really view any of these questions as no-brainers. While one can treat them as a simple yes/no scorecard, there's plenty of room for interesting discussion within these parameters. So I'm curious to see what, if any, response I get from the candidates.

Monday, September 1, 2008

Class action waiver unconsionable in State of Washington

Groklaw is reporting on an appellate court decision from Washington State that upholds a trial court's denial of a motion by AT&T to compel arbitration, under the terms of its Consumer Services Agreement.

I particularly like this sentence from the ruling:
Courts will not be easily deceived by attempts to unilaterally strip away consumer protections and remedies by efforts to cloak the waiver of important rights under an arbitration clause.
The discussion on Groklaw mentions, among other things, that the standard for demonstrating unconscionability vary from state to state in the US. In particular in this case the court didn't have to rule on the question of whether unilateral changes of contract terms were procedurally unconscionable, because in Washington, it's sufficient to demonstrate substiantive unconscionability alone. The court notes:
However, having held below that the entire dispute resolution provision is substantively unconscionable, we find it unnecessary to reach the issue of procedural unconsionablity.
It is worth noting that, in Ontario, where I live, this question probably wouldn't come up anymore--at least not in an analogous context. The Consumer Protection Act specifically provides that:
Without limiting the generality of subsection (1), any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act. 2002, c. 30, Sched. A, s. 7 (2).
A consumer may commence a proceeding on behalf of members of a class under the Class Proceedings Act, 1992 or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding. 2002, c. 30, Sched. A, s. 8 (1).
So, under Ontario law, I believe that the original class action suit would have been explicitly authorized, and the provision in the contract that required arbitration would be unenforceable. (The usual "I'm not a lawyer; this isn't legal advice" disclaimer applies, naturally.)

Saturday, August 30, 2008

Notice bots under DMCA and C-61

The recent order denying the defendants' motion to dismiss in Lenz v. Universal has prompted some discussion of the ruling's implications for automated delivery of takedown notices under section 512 of the DMCA. (See, for example, Techdirt and Freedom to Tinker.)

The question in the Lenz case turned on whether the "good faith belief that use of the material... is not authorized by... the law" [17 U.S.C. § 512(c)(3)(A)(v)] requirement requires the potential complainant to consider Fair Use. The defendants argued that it should not. Judge Fogel disagreed, concluding:
The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.
This is interesting in itself, particularly when you add the extra step and connect it to the liability under Section 512(f); which Judge Fogel does (accepting the plaintiff's claim):
An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.
But there's an additional implication. There are systems out there that promise to automate the identification of infringing content, and the delivery of takedown notices. But, as David Robinson of Freedom to Tinker notes, "it’s hard to imagine a computer performing the four-factor weighing test that informs a fair use determination." So, if this judgment stands, fully automated takedown notices may be illegitimate, and potentially vulnerable to counter-claims.

Since Bill C-61 proposes to establish a conceptually similar liability shield for ISPs in Canadian copyright law, one might be inclined to wonder whether the same argument would hold. The requirements for notices of infringement in this bill are as follows.
(2) A notice of claimed infringement shall be in writing in the form, if any, prescribed by regulation and shall
(a) state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant;
(b) identify the work or other subject-matter to which the claimed infringement relates;
(c) state the claimant’s interest or right with respect to the copyright in the work or other subject-matter;
(d) specify the location data for the electronic location to which the claimed infringement relates;
(e) specify the infringement that is claimed;
(f) specify the date and time of the commission of the claimed infringement; and
(g) contain any other information that may be prescribed by regulation.
I'm no lawyer, but I don't see anything like a "good faith" requirement. Such a requirement could be built in via regulation, but it's not explicitly present. One might imagine reading something into "the infringement that is claimed", but on its face it provides no standard that the claim can be judged against. So, fully automated notice bots would seem to be permissible, provided they can satisfy the (unspecified) regulations. Certainly these would be capable of producing a claim of infringement in the required form, if it doesn't need to be accurate, or even reasonable.

Michael Geist has noted that C-61 specifies no penalty for filing a false notice. One could argue that such a penalty is unnecessary, since the consequences of an abusive notice are much less severe that they would be under the DMCA. C-61 establishes a notice-and-notice system; the only requirements on the person receiving the notice are to pass it on to whoever owns the "electronic location" in question, and to "retain records that will allow the identity of the person to whom the electronic location belongs to be determined". If one ignores the privacy implications of the data retention requirement, it's not a very onerous obligation. Indeed, responding to those obligations could also be automated relatively simply.

So, we can imagine a scenario here where bots are trawling the net, looking for allegedly infringing content. When they find something, they generate a 41.25(2) compliant notice and send it off to another bot, which passes it on down the line, until eventually it reaches a human who can decide whether or not to do anything about it. All of this seems to be permissible under the terms of C-61, and so far it doesn't even seem especially objectionable. (Processing illegitimate notices would have similar undesirable consequences to spam, in terms of the burden they potentially impose on the network, not to mention their nuisance value. But there is a provision to cover this by adding a processing fee via regulation.)

Except that 41.27(2)(f) says the liability shield for Search Providers only applies if the provider "has not received a notice of claimed infringement relating to the work or other subject-matter that complies with subsection 41.25(2)." So, here a hypothetical illegitimate automated notice has a very different consequence. Instead of simply being a piece of spam that can be filtered, or ignored, it is targetable device that can be used to undo the liability shield offered by section 41.27(1). Of course this doesn't create any liability for the search provider--a potential complainant would still have to actually have a real claim in order to obtain any remedies. But if I were, say, Google, I wouldn't be at all happy about the prospect of being flooded with automated 41.25(2) notices, and having to identify the ones that were credible.

Friday, August 29, 2008

C-61: history and context

I mentioned in my first post that I had an interest in copyright reform. Here in Canada, there's a public debate underway about Bill C-61, An Act to Amend the Copyright Act. This is a complex piece of legislation. It's also, in my view, not a particularly good one, for a number of reasons. But, before getting into detailed discussion it's worth taking a moment to establish a bigger picture: how did we get here; and what's going on, anyway? (See also this chronology, which includes additional information.)

The bill was introduced on June 12, 2008, by the Honourable Jim Prentice, Minister of Industry and the Honourable Josée Verner, Minister of Canadian Heritage and Status of Women and Minister for La Francophonie. The government has made some effort to try to give them equal billing, but Mr. Prentice has largely taken the lead. The web site for government communication about the bill is within Industry Canada's domain, for instance. This is itself noteworthy. Traditionally, Copyright has been seen in Canada as primarily the purview of the Department of Canadian Heritage, placing the emphasis on its role in cultural policy. Giving the Department of Industry the lead role would rather strongly suggest that the present government is more interested in the commercial aspects of copyright policy.

The bill, of course, does not arrive in a vacuum. For one thing, there are World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), which Canada signed in 1997 but has not implemented or ratified. Ever since then, the question of how (and whether) to implement these treaties has been one of the central questions of copyright reform in Canada. But there are many others: copyright reform is a complex issue with many stakeholders looking for often contradictory outcomes. This tends to lead to the so-called "piling-on" effect, where each party insists that its interest be catered-to in the next revision of the Copyright Act. In recognition of this, the so-called Section 92 Report recommended that a piece-wise approach be adopted in which copyright reforms would be grouped into more manageable "thematic" packages. The "short term" package was recommended for adoption within "1 to 2 years" (i.e. by 2004), and would have included "the four digital issues and other WIPO treaty issues, access and education, photographic works, and transitional periods for unpublished posthumous works".

Of course, this didn't happen. At least not under that (Chrétien majority) government, and not by 2004. (There were a couple of smaller changes to the Copyright Act, during this period: one that excluded Internet re-transmitters from rights that cable and satellite operators have access to, and another that partly dealt with the issues about unpublished postumous works, and created an exemption to allow archival reproduction in more circumstances.) Meanwhile, the Standing Committee on Canadian Heritage released an Interim Report with a different set of recommendations. But in 2005, the Martin minority government introduced Bill C-60, which was closer to the Section 92 Report proposal. This bill died when the Martin government was defeated, in 2006.

A copyright reform bill from the Harper government appeared on the Notice Paper on December 10, 2007. Fearful of what that bill would likely entail, Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, started the Fair Copyright For Canada Facebook Group, with a stated goal of helping "ensure that the government hears from concerned Canadians". The group quickly attracted tens of thousands of members. As I write this, the group has 91,468 members. (I'm one of them.)

And the media noticed. So did the government. As noted above, the bill ultimately wasn't introduced until June (right before the House recessed for the summer break). It has been suggested that the intervening period was used to add some "consumer friendly" provisions, which might have been hoped to make the legislation more palatable to average citizens. However, these provisions have a number of limitations that make them less useful than they might be.

Over the summer, there has been a certain amount of discussion of the bill, particularly among its opponents. A casual web search for "C-61" turns up a lot of criticism, and not a lot of support. However, this probably has a lot to do with it being summer; the larger organizations are apparently taking their time to study the bill, prepare analyses and formulate strategies. If Parliament re-convenes in the fall, we can presumably expect to see more involvement from organizations like the Creator's Copyright Coalition, who can probably be expected to support the implementation of the WCT and WPPT. (Though one might expect them to also point out that their Platform on the Revision of Copyright calls for a host of additional measures that have not been included.)

As I write this, however, most observers seem to believe that there will be a fall election. If this happens, the Conservative Bill C-61, like the Liberal Bill C-60 before it (that's a co-incidence, by the way: the numbers come from the order in which the bills are introduced within a Parliamentary session), will die on the Order Paper, and the next government will have its own chance to introduce legislation. Either party could re-introduce either one of those bills, or a new one; or the issue could drop off the legislative agenda for a while.

But the debate, and the pressure behind it, won't go away, even if the bill does. Yesterday, John Degan of the PWAC put out a release noting that "[t]he Professional Writers Association of Canada (PWAC) encourages Canadian voters, media and politicians to ensure information economy issues are front and centre in any coming federal election, and into the next legislative session." I agree entirely, even though I would probably disagree with them about what that should entail or lead to.