Paul V's blog

The Globe and Mail carried an article called “Changing Canada’s tune on copyright law” giving Toronto jazz singer Sophie Milman an outlet to argue in favour of tougher copyright laws in Canada. The article hits all of the usual themes.

The standard false dichotomy:

It’s a long-running debate, pitting artists, record companies and the like against a new class of Internet companies and consumers who keep finding ways to download copyrighted music without paying.

The standard Canada-as-backwater:

“We are lagging behind, no question about that. Fairly or not, Canada is constantly being placed on intellectual property watch lists as being a piracy haven”

The funniest part is the opening. Sophie Milman, arguing in favour of stronger protections, has this conversation immediately after playing someone else’s song:

The impromptu midday jam session in a deserted corridor of Toronto’s Royal York Hotel was arranged for the benefit of a Globe and Mail photographer, who snaps away as the couple launch into a bouncy version of My Baby Just Cares for Me, made popular by Nina Simone.

Hopefully she paid up.

IP copyright, music

The IFPI has a slideshow set to music (hopefully licensed!) with some stats on music downloads. I want to look at two of the slides in particular, to discuss how they fail to paint a usable picture despite seeming damning.

The relevant fact is that “France has seen an almost 2/3 reduction in local releases since 2002″. On the face of it, this is damning. The impression we’re supposed to get is that 2/3 of people in the music industry in France must have lost their jobs! Likely this stat is only talking about major label releases. What about indie bands? Is the number up or down? Is their revenue up or down? Is there more or less local music available to French listeners through all channels? They don’t tell us. And that stat is interesting but ultimately useless without more information.

On this slide, we’re told that “In Spain there has been a 65% drop in local top 50 albums since 2004″. What does this even mean? A drop in what measurement? Sales? Dollars? Pictures of elephants on the covers? For the sake of argument, let’s assume we’re talking sales numbers here. What’s the revenue change across the entire industry? Are sales up in the bottom 999999999950 local albums? Is total revenue up? Are there more bands or fewer? Do we even care if top 50 sales are down if it means an increase in the total number of bands?

I hope I illustrated how facts and statistics can be (are are!) used to create an impression without actually conveying enough useful information to come to any reasoned conclusions about. I hope the IFPI releases a follow-up with all the details.

IP copyright, music

I sent Trade an email asking them to clarify the non-existence of a mandate letter for the ACTA negotiating team. There is one, but it’s a mandate memorandum. For the record, let me note that letter and memo are synonyms and that the Access to Information Act requires the department to “make every reasonable effort to assist the person in connection with the request, [and] respond to the request accurately and completely” (4.(2.1)).

Procedural complaint aside, the conclusion of the response is that the ACTA negotiating team’s mandate is secret. Trade is negotiating a deal on the behalf of Canadian citizens who are not permitted to know what kind of deal they’re allowed to make. Parliament, once your vacation is over, please implement the Information Commissioner’s proposed fixes to the Act. It is insane that there’s a group out there empowered to commit Canadians to a course of action that they’re not allowed to know about in advance.

The actual response:

Since your request referred specifically to a “letter” that was described by MP Angus during Question Period, that is what our search was limited to.  As per our response dated January 14, 2009, a mandate in the form of a letter does not exist.  That is not to say that there is no mandate for the negotiations.

We have made some inquiries with officials in Trade, and they have advised us as follows:

A mandate is required, and it must be requested from Cabinet.  The request to Cabinet is made primarily in the form of a Memorandum to Cabinet which would include a description of the issues and proposed instructions for negotiators.  Cabinet would need to approve not only the request, but also the scope of the mandate as contained in the proposed instructions.

Please note however, the Memorandum to Cabinet is considered a Confidence of the Queen’s Privy Council for Canada and is excluded under section 69(1)(a) of the Access to Information Act.

IP access to information, acta, copyright

Addendum: Following up with Trade reveals that there is a mandate, but it’s secret.

Back in December, MP Charlie Angus asked Canada’s Industry Minister Tony Clement for a copy of the mandate given to the Canadian negotiators attending the Anti-Counterfeiting Trade Agreement (ACTA) talks.

Suspecting that Angus was on to something, I sent in an Access to Information request asking for the mandate letter. I got a response today that I think may concern anyone following Canada’s role in the ACTA negotiations.

Please be advised that after a thorough search of our files, we were advised by department officials that a mandate in the form of a letter was never provided to the negotiators. We cannot comment on the statement made by MP Angus.

Anyone familiar with Trade Department procedures able to comment on this? Are negotiators typically provided with a written mandate? If so, does that mean that the ACTA negotiation is subverting normal process?

Click to see the whole Access to Information response

Addendum: Following up with Trade reveals that there is a mandate, but it’s secret.

IP access to information, acta, copyright

In November, I filed a couple of Access to Information Act requests with the Canadian Trade Department trying to shine some light on the negotiations for the Anti-Counterfeiting Trade Agreement (ACTA). ACTA in a nutshell: negotiations for a multilateral trade agreement with alarming implications for copyright reform based on leaked documents of an unusually secretive process (more info). In December, I wrote about Trade taking a 6 month extension above and beyond the 30 days that the Act permits them to answer my request. However, they did respond to one of the requests only a couple weeks later. They were able to respond so quickly because they released nothing to me.

The request:

The most recent draft text of the Anti-Counterfeiting Trade Agreement (ACTA), as well as a draft dated September or October 2009, to match the draft which the USTR released for consultation to several American corporations and individuals in August and September 2009.

The response:

We regret to inform you that the records you requested are all withheld pursuant to sections 13(1)(a) and 15(1)-International of the Act and therefore cannot be released to you.

I mulled this over for a while debating the next step. Given the hints that ACTA is being used to circumvent the recent public consultation in Canada on copyright reform, I decided to file a complaint with the Information Commissioner. I’m making a “public interest” argument for the documents to be disclosed. Unfortunately, it appears that our Act contains no explicit public interest override (unlike most of the Commonwealth nations), so hopefully there is some legal precedent for applying it here. Interestingly, the previous Information Commissioner proposed new legislation that would add such an override (more info). Forgive me a comment on our current Government, but it’s noteworthy that they haven’t implemented any of his suggestions to improve government transparency despite that goal being of their key election planks.

My complaint:

On December 15, DFAIT responded that all requested records were being withheld under 13(1)(a) and 15(1) of the Act. However, the records should have been released for the following reasons:

1. The Canadian position is for greater transparency. In a presentation on April 6, 2009, officials at DFAIT confirmed that they favour transparency in the ACTA process [1]. Disclosing documents requested under the Act would improve transparency in the process; withholding documents makes the process more opaque.

2. During question period on December 1, 2009, Industry Minister Tony Clement referred MP Charlie Angus to a university professor’s website to learn more about ACTA [2]. It is not the job of academics to ensure government transparency, and Members of Parliament should not need to rely on leaked documents. How can there be an effective government if opposition parties get their information from second-hand leaked documents? The public interest is being harmed by this secrecy. Disclosing the requested documents is in the public interest as disclosure would allow the Opposition access to information necessary to fulfil its role in Parliament.

3. Foreign governments party to the negotiation are releasing similar documents. The Council of the European Union released records under their sunshine legislation with the justification “Given the current agreed approach on transparency within ACTA the UK agrees with the Council’s response to the FOI access to documents request […] More broadly with respect to ACTA the UK considers that transparency is crucial to ensure the legitimacy of the agreement and to stop the spread of rumours. We believe that the lack of transparency is unhelpful and do not believe that it is in the public interest.” [3]

Additionally, the United States has disclosed the requested records to over 42 individuals and organizations [4]. As other governments are disclosing similar documents, there is no justification for DFAIT to withhold the requested records.

4. Incomplete copies of ACTA and other working documents have been leaked, in both May 2008 [5] and November 2009 [6]. Key stakeholders believe that disclosure is in the public interest; enough so that they are leaking the documents. However, leaked documents provide at best a muddled and incomplete picture. Disclosing the requested documents will identify areas where the leaked documents are misleading or missing important details, and provide a complete picture for Canadians to understand what its government is doing.

5. The ACTA negotiations are specifically being held to circumvent transparent international forums like WIPO and to bypass Canadian public will expressed in the grassroots resistance to Bill C-61 and during 2009′s copyright consultation. Allowing the Government to forum shop and move to a less transparent and more secretive process is counter to the express public will on this topic. Disclosing the requested documents will allow the public to continue to comment meaningfully on copyright reform.

6. Other similar international agreements on intellectual property have been negotiated in a transparent manner. There is no reason for the ACTA negotiations to be held in secrecy when, for example, the two WIPO Internet Treaties were negotiated in the open in Geneva [7]. Withholding the requested documents is neither typical nor necessary in intellectual property negotiations, and as such they should be disclosed.

7. Public interest groups, academics, corporations, individuals, and government representatives are all requesting greater transparency. Disclosing the requested records would encourage that transparency and be in the public interest, not just for Canada but worldwide.

A short-list of calls for increased transparency:
- Canadian MP Charlie Angus
- Canadian New Democratic Party [NDP]
- Canadian Internet Policy and Public Interest Clinic, University of Ottawa
- US Congressman Mike Doyle (D-Pa)
- US Senator Ron Wyden (D-Ore)
- New Zealand Labour party (Official Opposition) [NZL]
- WIPO Director General Francis Gurry [WIPO]
- James Love, Knowledge Ecology International
- Gigi Sohn, Public Knowledge
- Electronic Frontier Foundation (EFF)

Conclusion

There is a compelling public interest case for the documents to be released and little rationale for withholding them. Disclosure would serve the Government’s calls for increased transparency in the ACTA negotiation process and is consistent with historic IP negotiations and the disclosures made by other governments party to the negotiations. The requested records should be disclosed.

IP access to information, acta, copyright