Noises Heard: Canada's Recent Online Copyright Consultation Process -- Teachings and Cautions

Richard Owens is counsel in a Toronto law firm specializing in business and commercial law, intellectual property and technology.

This short comment analyses the results of the Government of Canada’s recent on-line public consultation on its planned reform of copyright laws, held from July 20th, 2009 to September 15th, 2009.  Defects in the Consultation process are striking.  While the results of our study revealed a sharp gender, age and Anglophone bias in the submissions, of particular concern is the apparent lack of verification of identity, uniqueness, age (voting or otherwise) or citizenship of those making the submissions.

For instance, 70% of the total submissions were “form letters” originating from a single little-known group of modchip sellers and distributors – the Canadian Coalition for Electronic Rights (CCER) – that had its form letter extensively circulated internationally on BitTorrent-related sites. As a result, it appears that many of the submissions were not even made by Canadians. Our study raises serious issues regarding the design and results of the public consultations, and of the need to ensure that future online consultations are better designed to properly represent the views and interests of the Canadian body politic.  The government of Canada is urged to make available its own analysis of the submissions, as well as the nature and results of its verification process, if any.

Read the full comment here.

  1. Richard Owens’ analysis of the copyright consultation attempts to mislead the reader by comparing apples and oranges. He concentrates on the fact that the largest number of submissions were copies of a form letter from the CCER, but barely mentions that there were other form letters present as well. Form letters don’t indicate original thought, but they at least indicate an interest in the topic: and most of the interest was in the CCER point of view, not that of the other organizations who provided form letters.

    He claims that “many” (how many?) of the non-form-letter submissions are confused, irrelevant or intemperate, and proves this by quoting one (!) of them.

    He switches from absolute counts to percentages when it bolsters his message: we are told there are only 2122 non-form-letters (or a few hundred less, when we leave out those that are substantially similar to them), and Mr. Owens sampled 25% of those, and among those, the subset he classified as professional authors, musicians, filmmakers, performers, photographers and
    designers were 90% in favour of robust copyright protection. Why not mention how many letters are included in this subset? Was it 9 out of 10 letters?

    Finally, Mr. Owens congratulates a short list of organizations and individuals for well-informed submissions. However, he gives us no way to track down those particular submissions! For readers who want to see the sorts of people that Mr. Owens considers thoughtful, Google is your friend: For example, to find the pro-copyright submission from Ms. Bev Katz Rosenbaum, search for “Rosenbaum site:“, and to find the pro-copyright submission from Mr. Asim “Awesome”Awan, search for “Asim Awan site:“.

  2. While I think you make many excellent points in your analysis, I think it would be a mistake to reject the suggestions brought forward by the CCER out of hand.

    Even if (as you suggest) the individuals submitting the letter had a less than full understanding of the issues, the letter itself does make many sensible and even balanced suggestions for copyright reform.

    On the point of prohibiting anti-circumvention technologies (which presumably would be the central point of interest for “clandestine modchip manufacturers”) the letter only really advocates that Canada avoid an “all-encompassing prohibition” on these technologies. Given that such absolute prohibitions in the US DMCA have met with widespread criticism, this is not an unreasonable position to take.

    Other points raised in the CCER letter, such as advocating for a “notice and notice” approach to ISP liability, promoting technological neutrality, and preserving the current term of copyright are hardly extreme positions.

    With respect, given the relatively mild content of the letter itself, characterizing the CCER’s form letter campaign as the machinations of a “shadowy organization” of “foreigners” bent on preserving Canada’s status as a “piracy haven” strikes me as the very sort of fear mongering approach that you accuse the CCER of promoting.

  3. The biggest concern I have with Mr. Owens’ analysis is that there is a prevalent tone that the copyright matters should be decided by well-informed, involved parties, which, as history shows, tend to be special interest lobby groups and lawyers. The is one reason we wound up with a copyright levy for blank media that taxes everyone for use of a data backup device whether or not they use it to infringe copyright law. It is the equivalent to placing a tax on blank paper as it may be used with photocopiers or scanners and printers to infringe copyright law of printed material.

    I have submitted my own writings to the honourable ministers on this matter, and I am a concerned citizen as well as a musician and software developer. Thus I span both sides of the issue, and while I am not a lawyer or likely in the group of people Mr. Owens is likely referring to in understanding the law completely, these laws do affect every Canadian that utilizes digital media, and as such, the deserve at the most fundamental level the right to be heard and participate in the making of this policy that governs their lives. This attitude that because a citizen is not a master of laws that they should not be represented and participate in the process is the attitude of elitists, and smacks of authoritarianism.

    The laws are not for industry Mr. Owens, they are for all of society. Intellectual property law is to justly and fairly reward creators for their work while allowing the dissemination, enjoyment and fair use of those properties when purchased by a consumer. Going into patents further brings a responsibility to benefit society by that sharing.

    There are errors in all processes, and in all laws. Those errors cannot be corrected or even fully understood behind closed doors with small subsets of lawyers, lobbyists and corporate representatives as it most often removes the consumer. There is no balance in such a system, and such a system will not improve our laws and processes.

    Mr. Owens’ analysis claims that he is in line with Mr. Geist on the process needing to be “open and representative” to be legitimate. The issue is the comment he makes that “Much more useful is to solicit the opinions of the members of the communities that are truly informed.” Who decides who is “informed enough” Mr. Owens? We all live in this country, and many will be affected by this law, and have been affected by those that come before it. Too often have the industry groups steered the laws without public input or consultation. I would submit the CCER submissions are an indicator that people are listening and taking an interest this time, and as it is public policy, they have a right to express those views.

    I daresay the majority of the submissions were people that were informed to a degree and understood the issue much more clearly and fully compared to the understanding most voters have of the issues when they go to the polls. Taken in public policy perspective, there are concerns with the process, but it represents a much more involved voice than has been seen prior.

  4. Canada already has sufficient copyright laws.

    The small businesses and individuals who make their living from copyright have plenty of tools to protect their livelihoods. They will not benefit from privacy-invading measures that will turn the Internet into a police state and one that will only benefit the interests of billion dollar companies whose business model is to exploit copyright.

  5. I am a Canadian citizen, and I submitted one of those form letters from the CCER after finding it through TorrentFreak and Michael Geist’s guest article. I knew nothing of CCER before submitting this letter, and don’t consider them a “shadowy organization, the members of which may be criminals” in any way. I also consider myself well informed on this matter and I submitted this letter meaning every word within it. I strongly believe that C-61 is not in my best interests as a Canadian citizen. And I am certainly not a teenager.

    That should legitimize one of the form letter submissions for you, Mr. Owens.

  6. I too am a Canadian Citizen, and I participated in the copyright consultation. I find it very interesting that Mr. Owens laments foreign influence in a Canadian consultation and yet his positions are remarkably similar to those put forward by US copyright industry groups recently discredited by the US Government (

    I would agree that foreign business interests have no place in Canadian democratic processes and go even further to assert that special interest groups and industry lobbies should not be allowed to drown out the legitimate voices of citizens. Democratic governments are ultimately accountable to voters, not industry.

    That said, we have the consultation in front of us. It undoubtably includes foreign influence, on both sides of the debate, and a fair amount of industry comment as well. Despite these weaknesses, it’s still the best data available and should not be discounted or invalidated because any particular group does not agree with the majority of the comments.

  7. If Mr. Owens is interested in fair and open debate, uninfluenced by “shadowy organizations” with a particular axe to grind then I have a question for him.

    Is he prepared to reveal the amount of money paid both to him individually and Stikeman Elliot, his law firm, over the last five years from any organization with a business interest related to copyright legislation? In that category I include the CRIA, the RIAA, the MPAA, any record label, any organization listed in the table in the following article:

    and any lobbying or publicity organization which receives funds from any of the above.

    I would also like him to state that neither he nor his law firm has billed any organization whatever for the hours spent in compiling the above analysis of submissions.

    Then maybe we can judge just how fair, honest and unbiased Mr. Owens submission is.

  8. This is quite unfortunate that Owens’ own opinion is that we should base his findings – even though he and his firm may well be in the employ of said interested parties, such as the MPAA, RIAA, and CRIA, to name a few – solely upon his research, and not from a wide-ranging, or far-reaching survey of media producers, or consumers. Of this, I mean the people that buy the media and the people that actually create the media; it’s a tragedy indeed when the middlemen are holding either end hostage.

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