In 2005, the then-Liberal government introduced Bill C-60, the first attempt at digital copyright reform in Canada. The bill included digital lock provisions that linked circumvention to copyright infringement (as supported today by dozens of Canadian organizations) and did not create a ban on the tools that can be used to circumvent. The approach was consistent with the WIPO Internet treaties, but left the U.S. very unhappy.
For many years, the lead lobbyist against the C-60 approach and for a U.S. DMCA-style implementation was David Wilkins, the U.S. Ambassador to Canada during the Bush Administration. Wilkins regularly described Canadian law as the weakest in G7, lobbied successfully for anti-camcording legislation, wrote letters setting out the U.S. demands, and met with every Canadian minister on the file (his meeting with Industry Minister Bernier was chronicled in a Wikileaks cable). The U.S. pressure was ultimately successful as Bill C-61 included digital lock rules designed to satisfy their demands. While subsequent copyright bills (C-32 and C-11) do a better job of striking a balance on other copyright issues, the digital lock rules have remain unchanged because the U.S. demands have remained unchanged.
Wilkins was back in the news this past weekend as the U.S. dealt the Canadian government a significant setback by delaying approval of Keystone XL pipeline. Wilkins, who was hired by the Canadian Association of Petroleum Producers to lobby for pipeline approval in the U.S., called the decision "politics at its worst."
While the Wilkins comment could obviously apply equally to the digital lock rule decision in Canada, the U.S. decision could have ramifications for Bill C-11. Over the past few months, several people have suggested to me that the pipeline approval was linked to copyright reform (as in, there is no chance of a change to the digital lock rules since it is part of the price for pipeline approval).
The pipeline decision is one of several U.S. decisions that have gone against Canadian interests in recent months. Whether it is the decision to apply new border fees for Canadian travellers or the imposition of Buy American rules (which the current U.S. Ambassador implausibly claimed was good for Canada), Canada has sustained successive losses on the economic policy front with the U.S. Indeed, reports on yesterday's meeting between Prime Minister Harper and President Obama indicate that Canada expressed its disappointment with the recent decisions and that Canada is openly talking about diversifying its trade ties.
The question now is whether the recent U.S. developments will help thaw the frozen approach on digital locks. Government officials are clearly cognizant of the opposition -- the overwhelming majority of Canadians that have commented on the bill, dozens of groups, national newspaper editorials, opposition parties, and even backbench Conservative MPs -- are all supportive of a technical change to the law that would provide legal protection for digital locks but link it to copyright infringement. Canada was careful to leave that option open in the Anti-Counterfeiting Trade Agreement and it certainly works with the WIPO treaties. The announcement that Canada is prepared to join the Trans Pacific Partnership suggests it will continue to face U.S. pressure on IP rules, but the TPP is not yet set in stone.
The technical change would ease the passage of the bill from the opposition parties and send a not-so-subtle message to the U.S. about Canadian willingness to stand up for its national economic interest. Debate on Bill C-11 resumes today and the bill could head to committee within this week.
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