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Clarification of Conservative Party Policy Declaration

As we head into an election, our community would appreciate answers to the following questions so that they can be used to help in our decision about who to support. We are a group of new-media creators and audiences, and the questions will focus on patent and copyright, including both domestic and foreign policy perspectives on these areas of policy. We wish to receive clarifications of some of the related policy statements from the March 19, 2005 policy declaration.


PCT related Excerpts from the March 19, 2005 policy declaration of the Conservative party of Canada http://www.digital-copyright.ca/node/view/782

March 19, 2005 policy declaration of the Conservative party of Canada http://www.conservative.ca/documents/20050319-POLICY%20DECLARATION.pdf

"13. Property Rights" (p. 6)

We have all heard the phrase "your right to swing your cane ends at my nose", referring to the fact that different rights can conflict with each other. This conflict exists with various protectionist policies referring to electronic communications tools. The mid-1990's thinking was that in oder to protect the business models of incumbent content industries that control over electronic communications tools should be transferred from the owner of the tool to the incumbent content industries. Many people now recognize this as a violation of property rights for the owners of these tools, and not as a legitimate protection of the economic rights of copyright holders.

Where does the Conservative party fall in this critical balance between protecting the property rights of Canadians vs. the economic privilege of incumbent old-media content companies?

"27. Industrial Development" (p. 10)

"A Conservative Government will work with international organizations and individual nations to reduce protectionist policies to secure free trade agreements"

As with softwood lumber and beef, there are many areas where the United States policy is protectionist against Canadian industry. One of the largest areas of Canadian trade deficit with the United States is in the area of "intangibles", where the US has an aggressive protectionist policy relating to incumbent mass media and content industries. These protectionist policies form the core of the 1996 WIPO treaties which favor incumbent old-media business models where the United States dominates against new-media methods where Canada may lead.

Will the Conservative party oppose protectionist policies in the area of "intangibles", and instead pursue a domestic and trade policy approach that supports a full spectrum of production, distribution and funding models for creativity and innovation?

"28. Science, Research and Development" (p. 11)

Many governments are working towards a policy where the results of government funded research is made openly available to the entire economy for follow-on research and commercialization. This maximizes the economic return of this publicly funded research. This would also remove subsidies to specific for-profit companies who would previously have been granted exclusive rights to the outcome of this research.

Would the Conservative party support a policy of Open Access for scientific research, and the open licensing of other publicly funded creativity and innovation such as the release of government authored software under the terms of Free/Libre and Open Source Software licenses?

"34. Intellectual Property -- Patent Legislation" (p. 12)

The policy statement includes support for the extension of the term of patent protection due to delays in government approvals. This seems like an unusual priority considering that the term of 20 years is already excessively long in many areas where patents are granted.

The most controversial aspects of patent legislation involve the expansion of patent policy into new areas. There are arguments to limit the use of patents in areas such as software, art, life forms, methods of business, finance or teaching, for both practical and ethical reasons.

Various studies have suggested that in the field of software that between 60% to 95% of patents currently granted by the United States Patent and Trademark Office are of low quality, meaning that they would not stand up to adequate scrutiny of utility, novelty and un-obviousnesses in court. Having the majority of patents in a subject matter classification that represents a large percentage of granted patents be of bad quality represents an extreme burden not only on an under-resourced patent office, but also on the economy as a whole. We need to recognize that the largest job creators are entrepreneurs and small and medium sized businesses, which are also the least likely to afford the legal costs to defend themselves from poor quality patents in court.

Patents in some subject matter harm innovation, rather than provide incentives for innovation which is the primary policy justification for these temporary government granted monopolies. This is also an area of policy where there is a separation of the views from patent lawyers who financially benefit from increased patentability, and practitioners in the art who must defend their innovation from poor quality patents.

Would the Conservative party support initiating economic studies on each subject matter currently offered a patent monopoly, as well as any future subject matter proposed, to determine if the granting of patents in that subject matter is harmful or helpful to innovation. Would the Conservative party work to amend the patent act to explicitly exclude from patentability subject matter where either high patent quality can not be achieved, or where economic studies otherwise indicate that the government granted monopoly causes more harm than good.

"35. Copyright Legislation" (p. 12)

"a) to create opportunities for Canadian creators to enjoy the fruits of their labour to the greatest possible extent;"

Many of the hottest debates in this area of policy surround the question of whether whether the law will support a full spectrum of methods of creation, distribution and funding, or will protect incumbent content industries from competitors embracing innovation and transformative changes. When copyright is understood as an exclusive right to do specific things such as make commercial mechanical copies, or to communicate to the public via telecommunications, a full spectrum is supported.

Some highly controversial recent proposals involve replacing this flexible right with a "right of remuneration" (a small subset of funding models), or "legal protection for technological protection measures" (mandating tied selling between content and the tools used to communicate them, imposing distribution monopolies).

Does the Conservative party agree that supporting opportunities for Canadian creators must involve enabling a full spectrum of creation, distribution and funding models. Does the Conservative party agree that governments should not be in the business of picking winners in an otherwise competitive marketplace?

"b) to ensure that the rights of Canadian creators are adequately protected by law"

The Liberal Heritage Minister has been quoted as believing that Canadian copyright law must be changed to "give the tools to companies and authors to sue". Current copyright law already gives adequate tools to sue, with the court case she was referring to (Citation: 2004 FC 488) being a case where the copyright holders did not provide adequate evidence of infringement. Canadians are in a vulnerable situation due to excessive statutory damaged, meaning that most would be forced to settle out of court even if their activities were lawful.

Would the Conservative party oppose changes to the Copyright act that would reduce the requirement of evidence in order to launch lawsuits against Canadian alleged to have infringed copyright?

Would the Conservative party support changes to the Copyright act to remove or amend statutory damages such that there is some tie between the severity of the crime and the proposed punishment

"c) that these rights are balanced with the opportunity for the public to use copyright works for teaching, researching and lifelong learning;"

Far too often in copyright discussions there is a separation of copyright holders from users, with there claimed to be a need for balance between these theoretically conflicting interests. Creativity always builds on the past, and the past always tries to control the creativity that builds upon it. The monopolies offered to past creators must be balanced with the needs of present and future creativity.

Would the Conservative party help protect future creativity by limiting the ability of the past to control creativity?

"d) to continue to allow an individual to make copies of sound recordings of musical works for that person's personal and individual use; and"

Later the policy declaration speaks of a second reference to the existing Private Copying regime (Part VIII of the Copyright Act).

"iv) A Conservative Government will eliminate the levy on blank recording materials."

Currently the private copying regime does not specify that the source of material for private copying must be from an authorized source, leading the copyright board and the courts to properly conclude that downloading music from the Internet from an unauthorized source is not an infringement.

Does the Conservative party support retaining the current lack of requirement that the source for private copying be an authorized source, or would the party clarify that the source must be authorized?

Section 30.6 of the copyright act currently allows for a single backup copy of a "computer program". Many believe that the government should be respecting the privacy and property rights of citizens by clarifying that copyright only applies when mechanical copies enter-or-leave the private home, or when material is communicated by telecommunications outside of the private home.

Would the Conservative party support the carve-out the private activities of citizens in their homes from Copyright by extending private copying beyond music to other works, including removing any limitations as to the number of private copies made of computer software?

"e) that enforcement is applied fairly and in accordance with international standards."

There is a recognized need for different countries to have copyright policy and enforcement rules that are appropriate to that domestic economy. The United States did not honor foreign copyright until 1891, and had many restrictions on foreign copyright until as late as 1989. This allowed their domestic publishing capacity to grow before joining other nations in Burne and related treaties.

Because of the development dynamic of copyright, this is an area of policy that is often not appropriate to harmonize. Attempts to enforce a "one size fits all" regime will be harmful to most economies.

Can the Conservative party clarify what it is referencing when it refers to "international standards", and whether "one size fits all" is seen as appropriate for this area of policy

One of the most controversial aspects of the 1996 WIPO treaties is the section on "legal protection for technological protection measures", otherwise referred to as anti-circumvention. Those in a technology field recognize that in order for the intended customer to view materials that the methods and keys to decode any encryption must be available to the customer. This means that these technical protection measure do not protect copyright, but protect a tie between the encoded content and a specific authorized technology (CD/DVD player, television, etc) that must also be purchased by the customer. This type of tie is discussed in section 77 of our competition act.

The anti-circumvention section of the 1996 WIPO treaties need to be understood not as a method to protect copyright, but as a method for incumbent media companies to circumvent competition legislation.

Will the Conservative party reject changes to the copyright act that are intended to harm a competitive marketplace by circumventing necessary competition/anti-trust legislation

On March 8, 2005 a coalition of Canadian security businesses sent letters to the Ministers calling on the government to consult with them prior to tabling any legislation to amend Copyright to provide for legal protection for technological protection measures. The coalition warned that \x{201C}anti-circumvention laws throw a shroud of legal risk\x{201D} over the security research community and conclude that \x{201C}anti-circumvention laws that provide for excessive control make for bad security policy.\x{201D}

Will the Conservative party require that the computer security sector be fully consulted before supporting any legislation that would affect this sector?

Unlike other areas of policy there has not visibly been any cost/benefit analysis to the proposals to amend copyright.

Will the Conservative party require a full costs and benefit analysis on proposed changes to the copyright act, documenting this analysis and ensuring that all constituencies are fully consulted?

"ii) The Conservative Party believes that reasonable access to copyright works is a critical necessity for learning and teaching for Canadian students and teachers, and that access to copyrighted materials enriches life long learning and is an essential component of an innovative economy."

The policy declaration speaks of lifelong learning. Historically education has been dealt with using institutional exceptions, presuming that most learning happens within the context of these institutions. Innovations in education are increasingly seeing much of our livelong learning happening outside of institutions.

Would a Conservative government retain or expand existing institutional exceptions, or alternatively extend to all Canadians the required limits to the exclusive rights of copyright holders?

"iii) A Conservative Government will give consideration to educational public policy goals within the copyright framework. A Conservative Government will work with industry to increase awareness and develop a public education campaign to better inform users and creators on the copyright laws in Canada."

Currently the highest levels of the government seem uninformed on copyright law, with the current Liberal Heritage Minister falsely claiming that Canadian law needs to be changed to make unauthorized distribution of music illegal. Given the current Minister responsible for this area of policy is uninformed, it is understandable that the average Canadian is confused.

Incumbent industry associations have been spreading misinformation about our copyright laws, abusing confusion to favor incumbent special economic interests against competitors.

'''In any education campaign, will a Conservative government recognize the need to:

"93. Arts and Culture" (p. 34)

A support for accountability, transparency and sustainability of support is documented.

Would a Conservative government further support and protect a full spectrum of production, distribution and funding models for creativity?

This should include a rejection of replacing the exclusive rights of copyright with a "right of remuneration" managed by government created monopolies in the form of collective societies collecting under a statutory or extended licensing regime. Collective societies should exist in a free market, protecting the rights of creators and their audiences to chose whether to join/license through a collective, including the right to chose between competing collectives that would best represent their needs.

"105. Foreign Affairs Principles" (p. 39)

There are currently talks at WIPO about a development agenda for this agency. This includes the recognition that different economies at different stages of development often require different domestic Intellectual Property regimes.

There is recognition that methods of production, distribution and funding of creativity should best suit the domestic interests of a country, rather than the interests of foreign exporters.

A need to clarify the mandate of WIPO to include a development dimension in all work is also identified.

Does the Conservative party support the WIPO development agenda?

"108. International Treaties" (p. 41)

"Before entering into any new major international treaties or undertakings, a Conservative Government will ensure that Parliament is fully informed and consulted before binding action is taken."

The 1996 WIPO treaties were signed by Canada, with there now being a claim that there is an obligation to implement or ratify. A decade later parliament is still not informed, and were not consulted on the protectionist policy behind these treaties.

Would the Conservative party improve on the stated policy goal by revisiting treaties that have been signed but not ratified in Canada where parliament was never informed or consulted?