Sunday, January 20, 2008

Balance Interests Fairly!

Dr. Michael Geist is a law professor, respected worldwide for his work in Canada and throughout the World. His is Canadian content and I am very sorry, in my little (c) Canadian way, but I pay attention to that content first on considering any issue of national Canadian interest. Canadian, eh?

His Fair Copyright for Canada Principles are not minimalist to copyright protections. You will not find "free goods" or "free dealing", despite weak attempts by opponents to merge some of the fringe ideas that get exposed from his actions with his own work.

His principles are not maximalist either, sensitive to the real legal environment we are in, the technology marketplace circa 2008, and the broad scholarship on this matter.

For Canadians it is no longer the age of access scarcity or protecting content from fair use. There is no fear of some Info-cracy developing where access to good information and content is only available to those who can afford it. That was then, circa 1995.

This is 2008.

To grab a tagline from here:

Today, its about protecting creators and the innovation process and the resulting creations from unintended legal harm while balancing the interests of authors, holders and users. Not an easy task if you really want Phase III of "copyright reform."

"Do no harm" - Dr. Michael Geist

More than 10 years in fact have passed since the WIPO treaties were signed by politicians who knew that this was not a binding act (Sheila Copps, Heritage Minister, John Manley, Industry Minister). Read their joint press release December 18, 1997.

Starkly, it states that Canada needs a "strengthening of copyright protection in a digital environment" because the Information Highway Advisory Council, born in 1994, said so in 1995.

The Copyright and the Information Highway subgroup, that included as chair Claude Brunet (the Brunet of the Keyes-Brunet Report of March 29, 1977, Industry Canada), and members like Andrea Rush and Peter Grant, in their 1995 final report did not make any recommendation of the sort on copyright law.


The current Copyright Act provides sufficient protection for new and existing works, including multimedia works, created or distributed in a digital medium. The current copyright legislative and policy framework is, for the most part, sufficiently flexible to provide the means to effectively enforce copyright on the Information Highway and, at the same time,to provide users with reasonable access to protected works."

Antiquated? Old? Read the remark again by the subgroup above. (Read the summary too if you like.)

For the background, this was a pull down, world they were observing in rapid development, if you read the reports and some of the submissions, of dial up, of single tasking, of read, not write, of just just 2,738 websites to browse when the Information Highway Advisory Council was struck. Lots of buzz. No high speed in sight. The browser was Netscape and IE 1.o was an extra cost in the Windows 95 Plus Pack (39.95 or so in Canada).

The WIPO treaties in that light may in fact be understandable to the protections desired for copyright holders, to serve such a uniquely, professional publishing opportunity envisioned.

The fringe elements were making their own dial up BBS's available and gasp, software could be shared. And the MP3 was about to be born.

But somehow we got to 2008 and the sky did not fall in. You could conclude today that the lawyers of the Copyright subgroup had it right.

The "job" referred to by successive and unsuccessful governing politicians, in marching orders from somewhere, on these December 20, 1996 Treaties might have changed, you think, to the needs of the Canadian public now, in 2008 and the future?

The orders may have stayed the same but the ground and the medium has obviously changed. Too obviously to be noticed? It seemed to be before ...

And now? With Web 2.0 here, and with who knows exactly what on the horizon?

For those who missed the changes since 1996, we are on the cusp of an affront to my own small "c" Canadian principles, felt shared by many others, that may feature a slander to past and current Canadian legal scholarship, to our toils for independence, and to some of the core values the Canadian public mind has on the subject of how Federal law should apply inside their homes.

Simply, Mr. Minister, you will need a respected message to come forth that is intelligent and shows wisdom. Anything less from the closed door "black box" debate, based on foreign thoughts from the a now distant past, and just watch out. The fan this will go through will be a lot bigger than you might expect. The 40,000 or so Facebookers have not been that provoked yet, or their friends, and their friends, let alone all of the families involved.

Their influencers are tuned in, patiently waiting for a message.

The perceived need in this message is for a thorough public discussion by all persons having rights presently under the Copyright Law of Canada, including the rights that every Canadian has to use a copyright work they purchase in the manner of their own choosing.

By my count this includes maybe 50,000 Canadian 'professional' copyright creators (we minus the double or tripled membered, subtract the non-productive, add a few, take a few and guess). Add another 300,000 feeding off those creators or who work for companies that own their creative efforts from employment. Add maybe 2,000 companies, including elements of some of the biggest ones, and less we forget, another 50 or so that are foreign controlled. Monetize this by old standards, and you get about 6.5 % of your tax paying economy. Right?


Add about 23,000,000 Canadians who are eligible to vote. Most of them do not know it yet, but they have rights here at stake. I would guess half will know it soon enough. And likely that special set, includes more of the voter class. Those that show up and vote.

From my perch, the situation this government is faced with is kind of like what faced the Judge in "Miracle on 34th St" about to rule there is no Santa Claus.
"You go on back in there and tell them that you rule there is no Santy Claus."
If I was an editorial cartoonist, I would hope the picture would show Stephen Harper as the Judge, and have someone whispering in his Chambers, about his electoral chances here if he makes the wrong move. The "who" person might be his wife Laureen. "I" don't see a point of brilliance coming from anywhere else.
"C'mon Stephen. You tell Jim he is to announce that there is no Web 2.0, and that the kids of all those voters are pirates just like the Ambassador said. You tell him to tell all those Facebookers, that all they want is for everything to be free, and that he knows what they want and will give them the WIPO Treaties. Tell all the lawyers that our copyright laws are antiquated, haven't been useful for 100 years, and you will reform it to make it modern just like the U.S. has done."
The bottom line here is that most interested party here is every Canadian family, in how we want our lives influenced by the fundamental laws in our country on how we communicate amongst ourselves in private and how we extend ourselves to the broader world. If Canadians want to be threatened in their homes (here, here, here, ...) by the application of unwise laws of other countries to our own, I will be shocked if we do anything less but throw this and any other political party out of power that attempts to do so.

Fair? You better believe the law must be fair and the process had better be perceived as fair.

My .02 cents for political survival AND fairness?

Its time for a Royal Commission. Nothing less will do unless its tinkering in plan. Tour. See. Hear. Feel. Report. Empower the masses from their keyboards, out of their college dorms, and from their kitchen tables. Let the interests all speak. Creators. Holders. Users. All the associations. All the collectives. All the corporate interests. And them foreigners? We are fair. Let em speak too but in front of us, not behind our backs in private receptions.

("state your current association members and the number of members")

Balance interests fairly.

It might be cheaper too than the polling we are paying for.

The Harper government commissioned 546 opinion research projects, 2 polls per business day, $31 million in 2006-7.

Or if the good government wishes to save a buck, do little to nothing. Read the 1995 Copyright subgroup report's conclusion above. Its short, already paid for, seems eternal in advice, sensible, and is not funded by one side or the other. And beauty (Canadian aphorism, eh! Ed.), it is not academic in nature, if you don't trust your own academics' voices.

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