Official Ares Free Download

 The Canadian administration is in limbo, thanks to Stephen Harper’s ‘We’ll have a government when I say so‘ plan.

And with parliament in a vacuum, the minority Conservatives seem “set to push ahead with a treaty that will override Canadian domestic law and undermine Parliament’s right to establish copyright legislation,” says New Democrat digital issues Critic Charlie Angus.

He’s talking about the entertainment cartel ACTA (Anti-Counterfeiting Treaty Agreement) talks which have started up again Mexico, still behind closed doors.

But “Why the secrecy?”- asks Angus .”This is a treaty that has the potential to criminalize the behaviour of thousands of Canadians, and lock down future development of the internet.

“The government can’t hide behind a locked out Parliament. It must be accountable to the citizens of Canada.”

Leaked drafts suggest the government is considering the adoption of a Three Strikes policy on suspected illegal downloading, says Angus.

Today, in a letter to international trade minister Peter Van Loan, “I share the alarm of a growing number of legislators in other jurisdictions over the high level of secrecy surrounding these negotiations,” says Angus, going on >>>

As key elements of this treaty are at odds with present Canadian copyright policy and domestic law, it is incumbent upon you to explain what role your government is playing in these talks.

The secrecy surrounding this treaty is a complete reversal of the commitments your government has made to ensure public input and consultation on changes to Canadian copyright law.

On December 12th in the House of Commons, I pressed Industry Minister Tony Clement for an explanation as to why the government was engaged in public consultation on copyright reform when, simultaneously, the government was negotiating a treaty that would undermine a Canadian solution to digital copyright issues.

At that time, the Minister informed the House that the ACTA agreement would be subservient to Canadian copyright reform legislation. Significantly, what he failed to explain is that if Canada agrees to ACTA before new legislation is introduced, the government will have given away the right of the House to shape the substance of any copyright reform legislation.

In 2007, the initial treaty negotiations were promoted as an international response to cross-border commercial counterfeiting. However, provisions that have been leaked make it clear that ACTA has become a much broader attempt to regulate both the internet in general and the non-commercial activities of individual citizens online.

I believe this initiative goes well beyond the mandate of your department. I hope you are willing to address a number of questions I have, to help clear up the role your department is playing on the copyright file through the ACTA negotiations.

1) First and foremost, why the secrecy? When the original WIPO treaties were being negotiated, the draft of texts were posted online and made available by Industry Canada. The federal government invited submissions on the process being undertaken.

ACTA, on the other hand, is being negotiated entirely behind closed doors. Your government has gone along with this process by freezing out input from Parliament, public interest groups and key internet industries that could be adversely affected. This secrecy undermines the credibility of the Ministers of Industry and Heritage who have both made some effort to engage the public prior to the development of a new copyright framework for Canada.

Canadians deserve transparency on this issue. Therefore I am asking if you will produce for the House of Commons the latest draft held by your Department of the (a) civil enforcement, (b) border measures, (c) criminal enforcement and (d) intellectual property rights enforcement section of the Anti-Counterfeiting Trade Agreement.

2) Will you produce the mandate letter given to Canada’s negotiation team at ACTA? This will help provide the Canadian public with a sense of how far you’ve directed our representatives to go on key issues that affect our domestic laws and sovereignty.

3) What instructions have you given your negotiators regarding the issue of searching and seizing I-pods and laptops at international border crossings for potential non-commercial infringement of copyright? The ACLU reports that U.S. customs officials searched hundreds of devices last year. Is Canada prepared to authorize similar activities at our borders in an effort to ferret out alleged infringements by private citizens?

4) Is your government willing to impose a ‘three strikes and you’re out’ approach to claims of copyright infringement?

The ability to access the internet is fast becoming a basic need for a majority of Canadians in today’s world. And yet, ACTA would set the stage for corporate interests to force ISPs to bar individual citizens from accessing the internet, often based on unproven claims of three instances of possible infringement.

Commitments of your government to the kind of punishment prescribed by the ‘three strikes’ model simply cannot be made without input from the general public, parliamentarians and affected industries.

5) What instructions have you given to your negotiators regarding the imposition of a U.S.-style ‘notice and take down’ scheme for internet safe harbours? The push by the USTR to impose a US-style statutory ‘notice and take down’ regime, would require ISPs to take material down merely upon an allegation of infringement.

Such a provision would be completely at odds with the present Canadian voluntary ‘notice and notice’ regime for handling allegations of copyright infringement on the internet. The U.S. standard has proven highly problematic and has allowed for a host of abuses. All indications are that ACTA will require adoption of the U.S. approach, with all of the uncertainties in U.S. law.  This raises a number of questions, not least of which is how the agreement will interfere with Canadian privacy rights.

6) What instructions have you given your negotiators regarding the USTR’s push to initiate a secondary liability regime? In leaked official ACTA documents from the EU, it is clear that provisions would use treaty obligations as a means of superseding Canadian case law and imposing the U.S. Supreme Court’s Grokster opinion upon Canadians.

In U.S. courts, there is a long tradition of holding parties liable for copyright infringement if they did not directly commit the alleged infringement, but have been found to have assisted. As well, legal actions undertaken by the U.S. corporate lobby have resulted in a broadening of the attack on potential third party infringement under the vague charge of ‘inducement’ – ie. helping in some way to make infringement possible. It’s a litigators dream and a nightmare for the general public.

In Canada, the courts have provided the simpler definition of ‘authorization’. This narrower definition requires a clear level of intent and prevents Canadian courts from being used to target all manner of potential non-commercial infringement. The purpose of incorporating U.S. secondary liability law is clear: to require Canada to adopt the pattern of litigation against every new technology practiced by the U.S. copyright industries, and against Internet service providers.

7) Does your government support the push to remove any flexibility that presently exists under the WIPO treaty regarding the implementation of anti-circumvention legislation? Current international law provides considerable flexibility in how Canada might implement such provisions to comply with the WIPO Internet treaties.  Yet the ACTA leaks suggest that that flexibility could be completely curtailed by the treaty with requirements to impose regulations that go even further than the Americans’ regressive Digital Millennium Copyright Act.

Your government’s previous legislation, C-61, collapsed under the weight of public opposition over the attempt to allow anti-circumvention regulations to impede research, fair access and personal use of digital materials. Are you looking to use ACTA to undermine the public consultation process on a made-in-Canada approach?

8 ) What is the interaction between your office, your trade officials and the staff in the Departments of Industry and Heritage who have been given the task of assessing public opinion on copyright legislation?

9) Why are developing countries not included in ACTA negotiations?  Both China and India are becoming major competitors and trading partners with Canada. Questions of commercial infringement of IP have been raised with these developing countries. What is Canada’s position on their inclusion?

Given the implications of the ACTA on the development of copyright laws in Canada, it is incumbent that you explain where Canada stands in terms of these negotiations.

Minister Van Loan, your government has shut down Parliament and suspended the ability of MPs to represent the issues of concern to Canadians. And yet, your department is moving ahead with negotiations that would dramatically alter Canadian law and undermine the ability of Parliament to establish legislation that benefits Canadian artists, innovators and consumers.

It is a hollow claim to suggest that ACTA would be subservient to Parliament when the commitments for ACTA are being hammered out before Parliament has had a chance to see the new legislation. In such a scenario the government would be forced to enact ACTA-compatible legislation, rendering it a violation of international obligations to create a truly ‘Made in Canada’ approach to copyright reform.

Shutting down Parliament “does not remove the obligation of you or your government to address the growing concerns regarding this unbalanced treaty,” Angus tells Van Loan.

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