Lessons from Canada’s decade of copyright reform, or the limits to grassroots protest movements

(Somehow I forgot to post this back when C-11 actually passed the Committee stage back on March 15. Still, better late than never…)

So Bill C-11, the Copyright Modernization Act*, has finally passed the House of Commons committee stage: only 15 years and three months after the conclusion of the World Intellectual Property Organization Internet Treaties; and just under seven years since the government of the day took the first kick at this hot potato (if you’ll forgive the mixed metaphor). In more personal terms, I was able to start and finish a PhD in the time it took the Canadian government to pass a bill. Oh, and I’m still receiving highly uninformative responses to Access to Information requests filed almost half a decade ago.

That the bill has made it through committee stage means that it is as good as passed. In a majority parliament, bills rarely undergo major amendments. (It would’ve been absolutely shocking if the joint legislative committee had accepted any of the content industries’ SOPA-plus proposed amendments. Those amendments were likely just Hail Mary passes and a way for the government to make the final bill seem moderate in comparison.)

All this makes now a particularly good time to take stock at what we’ve learned about the politics of copyright over the past five years. We can start with the fact that Canada now have a politics of copyright to talk about. While copyright has always been contentious, and while people beyond the usual suspects (your U.S. government, your music, publishing, and motion picture industries, your collection societies and so on) began paying attention to the issue around 2000-1, it wasn’t until the December 2007 Great Facebook Copyright Uprising™ that interest in copyright became a front-page issue. Before Michael Geist started his Fair Copyright For Canada Facebook page, most MPs couldn’t tell you what copyright was if their re-election depended on it. Now it’s part of the national conversation.

But aside from awareness-raising, has copyright’s higher public profile changed anything? Well, yes and no.

Most importantly, the successful Facebook-based protests in 2007 and 2008 forcefully injected user rights into the Canadian copyright debate. The forward-looking (for copyright law, anyway) YouTube mashup exception is a direct result of this pressure. Of course, digital locks – newly protected by law—can override these new rights, an example of the saying that hypocrisy is the tribute vice pays to virtue. At the very least, though, user rights now have a foothold in the ongoing copyright debate.

The past several years have also politicized copyright. In 2004, all the major political parties were generally supportive of ever-expanding copyright protection, be it in the name of artists or corporations. This no longer seems to be true, at least of the NDP. Most importantly, their position, which seems to be shaped significantly by the work of MP/actual musician Charlie Angus, is borne out of fundamental disagreement about what copyright law should look like, rather than opposition for the sake of opposition. I’m still not sure if this is true of the Liberals, whose history of extreme policy flexibility makes it difficult to come to any solid conclusion about where they would stand on copyright if they were to form a government.

As for the Conservatives, their legislation has been so similar to the Liberals’ on every issue but digital locks that you can’t really argue that they have anything resembling a coherent, distinctive copyright position. Rather, their digital lock position is driven entirely by politics, namely the Prime Minister’s Office’s desire to “satisfy the United States.”

And I might be missing some copyright-law nuance, but it seems to me that between the Liberal’s Bill C-60 in 2005 and the current bill, surprisingly little in the actual bills changed. The big exception, of course, has been with respect for digital locks, but even here, the 2012 bill is pretty much the same as it was in 2008. This tells us a lot about the limited effectiveness of public protest in the Canadian political system. As former Industry Minister Jim Prentice’s chief of staff told me, the Conservatives saw the 2007-8 protests as a sign that the bill needed a better communications strategy, not a fundamental rethink. They responded accordingly: no changes to the digital-lock rules, and some new user rights – rights that can be overridden by these protected digital locks.

Most importantly, they have paid no political price for this intransigence, even after the government’s 2009 consultations revealed widespread dissatisfaction with the government’s position. The original protests were only successful because of when they took place: during a minority government at a time when the Conservatives were facing a contentious Parliamentary session and an opposition Liberal party that still betrayed false signs of vitality. Dangerous times for the governing party. Since then, faced with, first, inept Liberal oppositions under Dion and Ignatieff, and now a majority government in which the governing party controls all the levers of power, the Conservatives don’t have to listen to anybody. And they haven’t.

Contrast the 2007 Facebook protests with the January anti-SOPA protests in the United States. The former were successful, as far as it went, due to a highly unusual confluence of events. The latter, in contrast, were successful because they took advantage of the openness of the U.S. system, in which power is widely distributed and there’s always an election just around the corner. I’ll be writing more about this in a paper to be delivered to the Canadian Communications Association in late May, but the two events certainly suggest some important conclusions about the limits of social media in effecting change in a highly centralized political system like Canada’s.

These are just a few preliminary thoughts; the book on this past decade’s Canadian copyright reform remains to be written. The bill mandates a review in five years, so the debate will continue. It will be very interesting to see what lessons the various copyright camps take from what has been an exceptionally illuminating chapter in Canadian political history.

* While not much in the debate’s denouement surprised me, I did half-expect that Stephen Harper would change the Bill’s title to something like The Protecting Canadians from Child-Molesting Pirates Act.