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.

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.

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.

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.

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.

Like many people, I’m concerned that the Anti-Counterfeiting Trade Agreement (ACTA) negotiations are being used to launder copyright reform through a secretive international trade agreement and do an end-run around the recent public consultations in Canada. However, it’s really tough to comment meaningfully on the subject without transparency into the process. In an effort to enlighten myself, I filed a couple of Access to Information (ATIP) requests with the Canadian Department of Foreign Affairs and International Trade (DFAIT).

One of my requests was deliberately wide-open, requesting any communication between the Trade Department and third-parties about ACTA. I’m trying to figure out who’s been consulted, who’s seen draft treaties, and so on. My second request was more specific, requesting the most recent draft text of the treaty as well as a copy contemporaneous with that shared by the United States government with a number of companies and organizations. While draft treaties are exempt under the Access to Information Act, I figured that since the treaty has already been disclosed to some parties, there’d be no statutory reason to withhold that version from me as well.

In response to both requests, DFAIT requested a 6 month extension. To put that in context, the statute allows for 30 days to respond to requests, allowing extensions for specific reasons. My requests were extended under section 9(1)(a), which allows an extension in cases where “the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution.” I can concede this for my first request, which as I mentioned is quite open-ended. However my second request is quite specific, and I had a hard time believing it could take 6 months to comb through the records. I emailed my contact for an explanation, and was told that:

because of the volume of requests that we have now, and our limited resources, we are taking extensions of 180 days for our requests

This is clearly not acceptable under the Act. Now, it’s not the fault of my contact or even the DFAIT ATIP office, which is under-funded and under-staffed. The contact that I spoke with there was extremely helpful and apologetic. Two years of Information Comissioner reports mention that the DFAIT ATIP office has requested additional funding to keep up with the workload, which vastly increased when the government adopted a policy that other departments needed to consult with DFAIT on any ATIP request which could prejudice Canadian foreign policy/international trade. The Information Commissioner’s latest report on DFAIT does a good job of summarizing the problem. I’m sympathetic with the overloaded workers on the ground there, but management absolutely needs to step up and fix the problem.

Given that the current government was elected on a platform of improved transparency, it is incumbent on them to properly fund one of the busiest transparency-focused departments. Unless, and forgive this baseless speculation, a delay in transparency makes it easier to conduct secret negotiations without the annoying necessity of having to involve those annoying—what are they called?—Canadian citizens.

See also:

• Canwest’s exposé: Foreign Affairs violating disclosure laws: experts
• ACTA timeline

The fee-for-carriage (or value-for-signal) debate misses the point. Television delivery is already moving online. Bell now has a pure IPTV delivery system for television in condos. Sites like Hulu provide on-demand access to programming. Granted, IPTV has been hyped now to the point that people are getting sick of it, but the simple fact is that television is moving inevitably to internet distribution. Canada was almost a decade ahead of the United States on internet delivery, until Parliament modified the Copyright Act to neuter the emerging business model.

Specifically, Parliament modified the Copyright Act to prevent retransmission of television online, despite allowing the cable companies to continue to aggregate over-the-air signals without having to worry about copyright. Section 31 writes that it “is not an infringement of copyright for a retransmitter to communicate to the public by telecommunication any literary, dramatic, musical or artistic work [...]” but defines a “‘retransmitter’ [as] a person who performs a function comparable to that of a cable retransmission system, but does not include a new media retransmitter.”

With that one change to the Act, Parliament shut down innovative sites like iCraveTV, who were already rebroadcasting television online in 1999. For comparison, Hulu didn’t launch until 2007. In fact, the government was originally going to extend the Copyright Act to include online distribution, but the Heritage Committe caved to special interest pressure from the United States, the broadcasters, and the cable industry. Sound familiar?

I’m sad that our government surrendered to old media special interests. Much like we lost our early advantage in telecom and internet penetration, we threw away a potential lead in new media business models. Hopefully we don’t continue the trend with the current work on the Copyright Act or surrender to US pressure again in the form of the Anti-Counterfeiting Trade Agreement (ACTA).

DVD FBI warning (source: antypography.com)

Richard Ackerman (@scilib) tweets: “I wonder how many Canadian person-hours are wasted each year by us being forced to watch FBI piracy warnings on DVDs & some iTunes content“?

I decided to take a stab at estimating an answer. Note that this is a total back-of-the-envelope calculation that is likely on the right order of magnitude but otherwise wildly inaccurate.

There are a number of things we need to know:

Doing the math, we can estimate that Canadians spend about 4.6 million hours watching the copyright and FBI warnings on DVDs. If we want to put a dollar figure on it in the laziest way possible, just multiply by the median salary and we get $82 million dollars in wasted time.

See also my critique of the Toronto International Film Festival’s copyright warning.

In “The (legal) music fades out for Canadians“, Barrie McKenna repeats a number of American recording industry talking-points, and ignores the depth and breadth of the copyright reform debate in Canada.

McKenna makes a number of misleading claims. To address some of them: Canada’s copyright isn’t out of step with the Western world, but is fully compliant with Berne; Isohunt is involved in a lawsuit with the CRIA, but it was Isohunt that first sued CRIA for a declaratory judgment; the music industry contributes far less to Canadian GDP than does the technology industry; and, there is tremendous growth in Canadian digital distribution.

Much has changed since copyright was first created, but blindly passing legislation to improve the short-term revenues of American companies isn’t in the long-term best interest of either Canadian culture or the Canadian economy. McKenna writes that there “are good reasons for Canada to embrace reform” and in this he is correct. However, any reform should listen to Canadian citizens, be designed for the long-term benefit of our culture, and ultimately keep in mind the utilitarian goal of maximizing the public good.

Thanks go to Techdirt for bringing attention to the original article.

Edit: An interesting (and not constrained to 200 words) response to the G&M article by Tom Koltai on Perceptric Forum.

Lily Allen performing (left), Jammie Thomas post $1.9m verdict (right)

Lily Allen and EMI appear to infringe 38 music copyrights for commercial gain and make millions. Jammie Thomas infringes 24 music copyrights for private enjoyment and is found liable for $1.9 million in damages.

A little back-story is in order. A week ago, Mike Masnick over at Techdirt posted an article discussing 50 Cent’s take on piracy. Lily Allen copied this post verbatim and included it in her blog, where she simultaneously criticized people for copying music. Masnick called her out on the hypocrisy, and boom, an internet fiasco is born (Lily’s blog has since been taken down).

While this is interesting on the face of it, there’s more. It came out during all the discussion that Lily creates and distributes mixtapes, mixtapes which she has admitted are infringing on the copyrights of the musicians she “stole” from. How she lives with the cognitive dissonance is beyond my understanding.

Unfortunately, this isn’t all academic ivory-tower talk. Real people, in the real world, are getting screwed doing the exact same thing. Jammie Thomas, a mother of 4, was one of the few folks brave enough to go to trial over file-sharing. The court has hit her with a judgment of $1.9 million dollars, or $80,000 per track. It’s pretty clear there’s no way she’ll ever be able to pay that, and that the amount of the damages is grossly out of line with both any damage she could have caused, and any reasonable punishment what at this point is normal behavior.

One hopes that Lily will recognize that she’s in a position of privilege, and offer to help Jammie Thomas pay her ridiculous judgment. A quick look at the track listing for Lily’s two mixtapes reveals at 38 cases of possible infringement. At Jammie’s rate, that would be $3 million. However, not only was Lily’s infringement willful, but she rode it to profits! So likely she’d be in for more damages. Let’s add 25% to make up for it, bringing the per track damages to $100k per, for a total of $3.8 million.

I’m sure Jammie would take a personal cheque, just this once.

See also:

• The complete list of Techdirt’s Lily Allen posts
• Ars Technica’s coverage of the Thomas verdict
• Track listing for Lily Allen’s first and second mixtapes
• Both mixtapes are still hosted on Lily’s site at mixtape 1 and mixtape 2

Edit: Added image, mixtapes are down, check out Dan Bull’s open musical letter to Lily.