Will Toronto Outlaw Dissent On Public Property?

Your civil rights are in danger.

Have you ever wanted to protest anything?  The first protest I went to at Queen’s Park was to protest Ontario eliminating provincial OSAP grants for post secondary education.  Later, I was a young mom when I took my toddler to the next protest when Mike Harris was cutting social services and dismantling public education.  

People are allowed to protest in a democracy.  I know people who protested G7 and G20 and I know people who have never protested in their lives.  All sorts of people who never thought they would ever protest anything came out to protest Bill C-51.   The Harper Government (and the Justin Trudeau Government that followed) chose to ignore the protests.  They can do that.

What they can’t do is stop people from protesting.  The Canadian Charter of Rights and Freedoms guarantees the right of every Canadian to dissent.  

Maybe you’ve never protested, and maybe you never will.  But today you have the right to protest.  No government approval required.  

This is especially important in our unrepresentative representative democracy because its the only way to even get winner-take-all government to pat attention.  But the City of Toronto is considering removing that right…preventing you or anyone from protesting on city or provincial property without permission.     

If the City of Toronto goes ahead with this, if they stop peaceful protests from taking place on city or provincial property, it won’t just affect Torontonians.  This could prevent Citizens from anywhere in Ontario from expressing their dissent at Queens Park without breaking the law.

This is a motion, not a law, but even so, with this in place, serious breaches of civil rights will undoubtedly follow.  [As they happened at Toronto’s infamous G20.]  

If it goes unchallenged, other municipalities will likely follow suit.  Which is why I’m sharing this call to action.


The organizers of this protest are concerned because Toronto City Council is considering a motion to shut down civil protests on Toronto or Provincial Property.

No information, no process, no visibility – just privileged access to power.

Tell Mayor Tory and all councillors this ill-conceived and ill-considered motion will not pass in our city.

URGENT – Meeting this Tuesday (Nov 28 at 9:30 am)

Toronto City Council is considering an item that came to Council on Sep-19 from Councillor James Pasternak (Ward 10 – York Centre) who is seeking a motion to shut down or prohibit access to public demonstrationson city and provincial property for so-called “hate-infested” rallies and he particularly mentions “Al Quds Day” as an example.
According to Pasternak, the Al Quds Day rally is “hate-infested” and “anti-Semitic”. Moreover, Councilor Pasternak places the Al Quds Day rally in the same category as white supremacist and neo-Nazi rallies. He also writes that “for the past several years there has been an Al Quds Day rally held in Toronto outside Queen’s Park featuring speakers making anti-Semitic and anti-Christian remarks, spreading hatred, inciting violence and supporting of terrorist organizations such as Hamas. Al Quds Day was originally created to call for the destruction of the state of Israel.”  (see link below for full text.)

Not only are the claims unsubstantiated, they are untrue, misleading and grossly defamatory.  If Councilor Pasternak has a problem with Al Quds Day, he should pursue it directly and not try to implicate other groups, movements and protests in sweeping action which will harm our freedom of expression and protest.
It is obvious that the larger goal of this motion is to engulf and shutdown ALL protests or actions supporting Palestine solidarity. This is typical “thin edge of of the wedge” attack which can be eventually applied to ever-broader definitions and eventually include any protest against mainstream / corporate / institutional policies and programs. This motion is a blatant assault to responsible civil society – its role and conduct

And moreover it is being done behind the backs of citizens with no notice, no attempt to contact or inform the accused or affected groups or organizations.  Another abuse of fair process and reliance on privileged access to power

Now is the time to cut down this duplicitous and vile initiative before it goes any further in the council decision process.  The matter is being considered at Executive Committee on Tuesday Nov-28 (9:30 am) and will be brought to City Council the following Tuesday (Dec-05 at 9:30am)

We need to let the Committee and also Council that this is NOT OK and we categoricallyreject any attempt to silence the public’s natural right to protest against power, injustice and inequality

You can read the documents related to this item from the city website.  The last item is from the City Deputy Manager and the Toronto Police Service, are very encouraging to public protest.  We need to ensure that city politicians do not meddle with what is a relatively open policy.
Link to the item on Executive Committee agenda for Nov28

http://app.toronto.ca/tmmis/viewAgendaItemHistory.do?item=2017.EX29.42

Original letter from Councillor Pasternak (Sep-19) – Hate-Sponsored Rallies such as Al Quds Day

http://www.toronto.ca/legdocs/mmis/2017/ex/bgrd/backgroundfile-109011.pdf

Letter from Deputy City Manager (Nov2), and Letter from Toronto Police Service (Oct17)

http://www.toronto.ca/legdocs/mmis/2017/ex/bgrd/backgroundfile-109012.pdf

This is the list of Executive Committee Members:

    • Paul Ainslie,
    • Ana Bailão,
    • Jon Burnside,
    • Gary Crawford,
    • Frank Di Giorgio,
    • Mary-Margaret McMahon,
    • Denzil Minnan-Wong
    • Cesar Palacio,
    • James Pasternak,
    • Jaye Robinson,
    • David Shiner,
    • Michael Thompson,
    • John Tory (Chair)

Attached is an excel sheet with contact emails (Executive Committee are indicated by “x” in a column). Alternate source of contact information for the Mayor and Councillors can be found at the following link.  https://web.toronto.ca/wp-content/uploads/2017/08/9612-council_offices.pdf

https://docs.google.com/spreadsheets/d/1e6fHyN2iEvwZNY8TVs2Y-lX8Cz8t1NaCVWeIZ5UAWsM/edit#gid=1324513855

This battle is only beginning and you can expect more calls to action between now and City Council Meeting on December 5th, 2017.
[*NOTE:  IF THERE IS ANY CHANCE YOU WILL WANT TO SPEAK TO COUNCIL, YOU MAY NEED TO REGISTER IN ADVANCE —LLR]

There is no online site or facebook page as yet.  We are in midst of organizing… this is only an opening action.  Please write NOW; you are welcome to some of the words or thoughts above in this email or use your own.


If the only dissent allowed is government approved protest, it won't be protest. It'll be propaganda

 

Allegations

Being busy with my self publishing adventure, I’d not been paying much attention to the Internet, so I was surprised when I read Jay Rosen’s tweet about allegations against one of my favorite journalists.

Over the last few years I’ve developed a great deal of respect for Glenn Greenwald’s reporting. While I can imagine detractors calling Greenwald many things, “puppet” just seems… ludicrous. If I had an important controversial news story to break — like the Robert Redford character in the movie “Three Days of the Condor” — Greenwald is the reporter I would seek out. Clearly Edward Snowden agrees, because Greenwald is the man he took his story to.

Even without knowing what allegations were being flung, I added my support of Glenn Greenwald to Jay’s tweet:

— Laurel L. Russwurm (@laurelrusswurm) July 11, 2013

My tweet drew a challenge from a total stranger … someone I do not follow, and who does not follow me.

This stranger, who posts on twitter under the pseudonym A.T., suggested Glenn Greenwald needs to “answer the charges of sock-puppetry that [A.T.] happen[s] to find more than just plausible.”

What an allegation! In web parlance, a “sock puppet” is a fake persona some people use to bolster their own spurious arguments. Accusing Greenwald of being a sock puppet is a bit much, because Greenwald is a real live human being, an internationally well known journalist with a longstanding career and reputation.

an emply sock puppet

The irony in this allegation is that the person spreading this attack on Greenwald is him/herself pseudonymous, and so could easily be a sock puppet. When total strangers insert themselves in your conversation, they may well be trolling, which is to say, spreading misinformation or otherwise seeking to antagonize.

Yet the only way to guarantee free speech is to support citizen anonymity. There are all sorts of good reasons to protect your identity when speaking out. But when speaking anonymously, you must establish credibility, or you may be taken for a sock puppet or a troll.

In order to decide how much credibility this stranger might merit, I looked at his/her twitter profile. On the face of it, it doesn’t read like a troll feed. Perhaps this person is new to the net, and doesn’t have the jargon down; they might still have something valid to impart.

So I asked,

— A.T. (@innerproduct) July 12, 2013

Forgetting for a moment that some of us don’t “google” (we search), the Internet is a very big place.

Web searching is a complicated process. Not all searches are equal. Not even close. Even if I were to use Google to enact a web search, depending on:

  • the search terms I choose,
  • my geographic location,
  • my IP address history
  • the time of day,
  • even the browser I use,

the search results will be different. Google’s justification for collecting and aggregating personal information about us all, whether or not we are signed in, is to tailor the search results to the individual making the search. Since I am more likely to use a privacy respecting search engine like DuckDuckGo, StartPage or IxQuick, the search results I receive will be different than the search results returned to someone who uses “google” as a verb.

When making any allegation or argument online, it is not only reasonable, but essential to be able to back it up with supporting links. If this person read a specific article, or a series of articles that called Glenn Greenwald’s professionalism into question, this is when they need to provide that and any other link supporting their argument.

Telling me to google it is akin to suggesting I sift the haystack for a needle. (And finding the needle would very probably be easier.)

When someone can’t be bothered to back up allegations, or abruptly backs down, it is generally reasonable to assume such allegations are at best misguided, or worse, spurious. Or even malicious.

I’m guessing these particular allegations were inspired by the Washington Post article referenced in this article The journalistic practices of the Washington Post and Walter Pincus.

While I think A.T., my Twitter correspondent here, was merely misguided, allegations like the ones made by the Washington Post against Glenn Greenwald are a symptom of a serious issue. The deeper problem is that mainstream news media has largely ceased funtioning as the ‘watchdog press.’

If a reporter gets something factually wrong, people clamor for correction; but when an unsavory report is undeniably true, ad hominem attacks are often applied — which is why this type of attack must always be taken with a grain of salt, and, if possible, challenged.

We are fortunate that the Internet has allowed for the rise of citizen journalism. When the voices of ordinary and even anonymous people are raised online, by tweeting, blogging or sharing, we can spread the news ourselves, and sometimes even shame the news industry covering an unpopular story. But when ordinary people engage in citizen journalism, it is important to do so in a credible and responsible manner.

Free speech is not the same thing as attacking someone’s real life reputation from behind a screen of anonymity. When people are personally attacked they deserve the right to face their accuser.

When a journalist exposes government malfeasance, the state often fights back, either by attacking the journalist directly, or indirectly, through its shills in a bid to deflect the unwanted scrutiny. Slinging mud at detractors in an attempt to discredit them is a shell game that erodes democracy. The Government of the United States prefers to have its citizens diverted into the consideration of the personalities of journalists or leakers in hopes that concerns about warrantless government surveillance will fade away.

Sadly, it seems today’s Washington Post is not the kind of news outlet that could bring down a corrupt presidency so long as its policy embraces government “pravda.” I wonder if any news outlet operating within the United States can stand against government pressure? Any news outlet that sells out press freedom isn’t really a news outlet at all.


I believe in the principle declared at Nuremberg in 1945: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”

Accordingly, I did what I believed right and began a campaign to correct this wrongdoing. I did not seek to enrich myself. I did not seek to sell US secrets. I did not partner with any foreign government to guarantee my safety. Instead, I took what I knew to the public, so what affects all of us can be discussed by all of us in the light of day, and I asked the world for justice.

That moral decision to tell the public about spying that affects all of us has been costly, but it was the right thing to do and I have no regrets.

The Guardian: Edward Snowden statement: ‘It was the right thing to do and I have no regrets’


glossary via Wikipedia
Troll
sock puppet
FUD

Canada, we have a Prorogue: Part 3 of 3

PART 3 of 3

NOTE: I’ve broken the original gigantic “Canada, we have a Prorogue” article into 3 more manageable segments with no additions,
EXCEPT I’ve added postal mail addresses after email addresses at the bottom of this one.
So if you read the long version, you will have already read this.

Alternating Parties

In the Post-Trudeau world, the two “alternating ruling parties’” candidates began to merge into an indistinguishable gray mass.   Possibly in atonement for the long years of Trudeau rule, the Canadian Liberal party started getting more like the Conservative Party.   And of course, the “Conservative” Party was actually calling themselves the “Progressive Conservative” Party so they wouldn’t sound so anti-progress… The ideologies between these two parties especially became so fluid that the Liberals and Conservatives SOP is to steal platforms from one another, or even from the weaker parties, like the NDP or the Greens.   Because in reality, the big parties aren’t really about ideology anymore.   The big Canadian political parties have one one overwhelming motive.   Their goal isn’t to govern.   It is to be re-elected.

And of course the easiest way to be elected is to have massive amounts of money so you can do a lot of advertising.   This strategy has helped to continue the tradition of alternating between Liberal and Conservative governments ruling the country.   It doesn’t matter to big business which of these parties is in charge, because both the the Liberal and Conservative parties represent corporate Canada.   Both parties are probably funded about equally by the large corporations doing business here.   It is far easier to raise election campaign funds from big fish corporations than it is from small fish citizens.   So of course both these parties have the largest advertising budget.

Conservative Party Logo and Liberal Party Logo

Always Elected but Never in Charge

My only union membership was my former membership in the former ACTRA Writer’s Guild (now the Writers Guild of Canada).   Although I think trade unions used to do a great deal of good, over time they have given the public more than enough reasons for disillusionment.   Many people assume that the NDP exists solely to represent unions.   I suspect they would garner more support if they made it clear that they didn’t.   From what I have seen the NDP is the only party that appears to represent Canadian citizens rather than corporations.   Of course, that may well change if they actually end up in power.   I’ve been reading a certain amount of Jack Layton bashing lately, and I’m not quite sure why, unless it is that many people are nervous when the NDP actually has some meaningful input.   For myself I’ve been happy to see that the NDP has recently been championing net neutrality issues.   Overall though, some NDP governments have done very well indeed while others have not.   I suspect it depends on the individuals involved.   As far as I can see, the NDP has done a lot of good for people, usually during minority governments.

2008 photo of Kiefer Sutherland
Tommy Douglas' grandson Kiefer

Of course, a lot of people have a knee-jerk reaction to words like “socialist”, and that’s another reason the NDP has trouble getting votes.   Socialism is like communism, right?

For myself as a citizen I certainly enjoy socialist initiatives like universal health care.   Canada enjoys universal health care thanks to Tommy Douglas, former Saskatchewan Premier, who went federal when his Co-operative Commonwealth Federation (CCF) merged with the Canadian Labour Congress forming the New Democratic Party (NDP).   (Of course Douglas’ other great claim to fame is being Kiefer Sutherland’s grandfather.)

No wonder the Conservative and Liberal parties have done a lousy job maintaining universal health care.   It was after all forced on them, so in a way I’m surprised that it still exists at all, even in its current weakened state.   Left to their own devices, Canadian medicare would never have happened at all, and the alternating parties know they can’t actively dismantle our healthcare system, but they can let it decay…   Certainly these two pro-business political parties must be under extreme pressure from the business world to privatize health care, particularly now that the United States is threatening to follow the Canadian health care lead.

Bloc Party Logo and NDP Party Logo

Almost all new Canadian political parties begin as a single issue parties.   People come together to address a single specific political aim.

The Bloc Québécois started with the intent to foster the separation of the Province of Quebec from the rest of Canada.   Interestingly enough, a lot of anglophone Canadians are suggesting a coalition government might work with the Bloc leader Gilles Duceppe at the head.

Gilles Duceppe has generated a great deal of respect in English Canada.   Which begs the question: if Canada had a Bloc Prime Minister, would Quebec still want to separate?

No Seats…. YET

The Green Party of Canada began with the single plank of environmental care.   When they first set up shop all their other policies seemed cloned from the conservative agenda.   Over the years they have in fact been quietly crafting their own platform so they are no longer simply conservatives with an environmental bent.   Like Duceppe in the Bloc, the Green Party leader Elizabeth May has been building a very good reputation.

If Canada had proportional representation, the Green Party would have at least several seats in parliament.   Instead, they have none at all, since the “first past the post” system we are currently stuck with favors the two biggest parties, the Liberals and Conservatives.   Is it any wonder they aren’t embracing electoral reform?   That is the last thing they want.

Green Party Logo and Pirate Party Logo

Another party I’ve had my eye on is the fledgling Pirate Party of Canada.   Probably the youngest political party in Canada, not just in terms of length of existence but in the age of its membership.   Like the European Pirate Party they no doubt hope to emulate, their stated intent is to “to reform Canadian copyright laws, reform the patent system, and protect every Canadian’s right to privacy”   These are big issues among the world’s youth who rightfully resent the fact that they are being criminalized for personal use of copyright material.

To illustrate the legitimate uses of internet file sharing as a way for artists to promote and distribute their work the Pirate Party established the Canadian Pirate Tracker.   Unfortunately they’ve not done much since that I’ve seen.   I’m not quite sure if it’s because they are being hampered by the undoubtedly mind-numbing red tape required in setting up a Canadian political party or if it is just because they haven’t yet sorted themselves out as a group, but I would have expected them to have made a submission to the Canadian Copyright Consultation, as copyright law reform is the main plank in their platform.   I’m surprised they haven’t recruited or at least solicited advice and strategy direction from copyright experts like Russell McOrmond, Howard Knopf, Michael Geist and Cory Doctorow.   Or maybe they think these copyright heavyweights are too old to be trusted.  

Still, times like this when serious voter frustration is rampant are the ideal time to get the word out and build a base following.   It’s certainly have been a good time to get visible.   Yet I haven’t heard a peep from the Pirate Party through the entire prorogue debacle. If the Pirate Party doesn’t DO something soon they’ll just fall through the cracks. Which would be too bad.

Voter Apathy

Canadians have become increasingly frustrated with our politicians.   Many Canadians proclaim that they don’t vote, almost as if it was a badge of honor.   And in fact far too many Canadians don’t bother.   I certainly don’t blame them, because I’ve felt the frustration myself.

It irritates me that after every election there is invariably at least one newspaper editorial chastising those who haven’t gone out to vote.   Because even though I think that voting is necessary, I can well understand why so many Canadian people don’t vote.

It sounds like no one is listening.

For many years it seemed to me that there wasn’t even anyone to vote for if I voted “against”.   But as more and more citizens refrain from voting, the worse it gets.   A spoiled vote doesn’t count.   Apparently a Declined votes count at Provincial levels, but since nobody knows what it means it may as well not count.

There doesn’t seem to be anything we can do.   But it is clear that we can’t just leave it to them.

What Canadians really need is electoral reform

There was a time when I had hopes for a political party.

political party campaign button
The National Party of Canada

In 1993 bookseller, nationalist and creator of the Canadian Encyclopedia, the incredible Mel Hurtig launched the National Party of Canada in 1993.   The National Party ran candidates ran in every riding cross Canada that year with a platform in opposition to the Progressive Conservative party initiatives including the Canada/U.S. free trade agreement, privatization, the GST and other initiatives.

To me, the National Party sounded like exactly what Canada needed.   Instead of electing any National Party candidates, however, Canadians simply gave the “alternate” Liberal Party a resounding 177 of 295 House of Commons seats.

So yes, Brian Mulroney’s Progressive Conservative party was crushed, but in reality it didn’t really make much difference to Canadians, because we did what we always seem to do: we put the Liberal alternate party back in power.   And funny, it took a little time, but turns out that the Progressive Conservatives had to reinvent themselves but they are STILL the other “alternate party”.   Canadians are forgiving, or maybe just forgetful.

NO NON Prorogue
The Point

And of course that is what Prime Minister Stephen Harper is counting on.   He thinks that the worst consequence he’ll have to face is the resumption of business as usual.   But in the interim he’ll have had a nice vacation at the Olympics and maybe even a bit of a tan.

Canada has been deeply wounded by this recession.   The fact that our Prime Minister would be so self serving as to flush a year of his own government’s work in order to avoid responsibility for his actions is not sitting well with Canadians.   A government led by someone who can’t comprehend what it is like to be an ordinary Canadian has not helped.   Doesn’t Prime Minister Stephen Harper know who paid for this work, not to mention all those government salaries?   Canadians have been struggling to put food on the table for our families and he thinks wasting our money is acceptable?

I don’t have any magic answers.   I do have some ideas.   At the very least, Canada needs electoral reform.   Since I’m running long (even for me), I’ll reserve my thoughts on reformation for my next blog post.

What Can Canadians Do?

All across Canada there are non-partisan “Say No to Prorogue” rallies being organized for January 23rd. Check the
No Prorogue!
website to find out what is happening in your area. The sight of our warm bodies huddled out in the cold will no doubt do the most to tell Prime Minister Stephen Harper just how angry Canadians really are. Dress warm and get out there. Bring flags if you’ve got them!

[Many thanks to Colin Carmichael for providing Canadians of every political persuasion this excellent outlet.]

And as always you can start by sending Email to Prime Minister Stephen Harper.   Did you know you can send him snail mail without a stamp?   I’m actually surprised that that one is still on the books but it is true, Canada Post will carry all Canadian mail to our elected representatives gratis.
Prime Minister/Premier Ministre Stephen Harper <pm@pm.gc.ca>

The Right Hon. Stephen Joseph Harper, P.C., B.A., M.A.
House of Commons
Ottawa, Ontario
K1A 0A6

…oh wait, what am I thinking! I guess he isn’t likely to be there!
Best send it to his Constituency address:

The Right Hon. Stephen Joseph Harper, P.C., B.A., M.A.
1600 90th Avenue Southwest, suite A-203
Calgary, Alberta
T2V 5A8

They actually give more weight to snail mail than email.   Maybe because it’s more work: we have to physically go out and mail a snail mail letter.

As always, send a copy to your own Member of Parliament.

Find your MP with this lovely link that will also help you find out who your MP is if you don’t know.
Find your Member of Parliament

Globe and Mail: Prorogation only a blip on ‘Richter scale of upset,’ Clement says

Seems Canadians need to tell Tony Clement what we really think.   Maybe if enough of us do, he will finally hear us.   The Honourable Tony Clement, P.C., B.A., LL.B., Minister of Industry

The Hon. Tony Clement, P.C., B.A., LL.B.
44A King William Street
Huntsville, Ontario
P1H 1G3

OR
The Hon. Tony Clement, P.C., B.A., LL.B.
126 Kimberley Avenue, Unit 1
Bracebridge, Ontario
P1L 1Z9

OR
The Hon. Tony Clement, P.C., B.A., LL.B.
17 James Street
Parry Sound, Ontario
P2A 1T4

Take a peek at the Non-Partisan Fair Vote Canada site to get some information about the idea of electoral reform.  

ThunderBay "Say No to ProRogue" poster - Parliament buildings with

Back to Canada, we have a Prorogue: Part 1 of 3   Back Navigational Arrow

Back to Canada, we have a Prorogue: Part 2 of 3   Back Navigational Arrow

Forward to What’s Wrong With The Picture: ProROGUE State Forward Navigational Arrow

Canada, we have a Prorogue: Part 2 of 3

PART 2 of 3

NOTE: I’ve broken the original gigantic “Canada, we have a Prorogue” article into 3 more manageable segments with no additions
So if you read the long version, you will have already read this.

My take on Canadian politics

I first became aware of politics during the Trudeau era.

Our dashing PM with John and Yoko

Pierre Elliot Trudeau was undoubtedly Canada’s most dashing Prime Minister.   And although almost unheard of in politics, Trudeau was SINGLE.   A suave and sophisticated bachelor– heck he even dated my favorite movie star diva Barbra Streisand!

Checking out Trudeau’s biography on Wikipedia just now, I am aghast to discover that he was much older than my Dad.   I guess our own parents always seem old.

High School

A lot of who we are begins in high school.   Now, I have always felt mathematically challenged and I’m quite sure the introduction of the metric system while I was in school didn’t help matters any.   Which isn’t to say that introducing the metric system wasn’t a good thing for Canada.

In order to survive high school math I didn’t even pretend to convert.

Memorize:
20 degrees Celsius = 70 degrees Fahrenheit = no coat

Let me tell you that I credit my favorite high school teacher, Mr. Ziegel, for helping me learn how to think for myself in his grade ten history class.   I grew up in a large family, and you better believe it, with six siblings you learn how to argue if you want to survive.   So going in I thought I knew how to hold my own and make a point; because after all arguing was practically an Olympic event at home.

The best teacher I ever had.

But Wayne Ziegel was a master.

He quite often argued points that I am sure he didn’t believe in order to make us think.   I don’t know if it worked for anybody else, but he certainly forced me to think.

Mr. Ziegel’s devil’s advocacy both infuriated me and challenged my perceptions.

  • Why did I think what I thought?
  • Did I understand or,
  • did I just think what my parents thought?
  • Did I have facts?
  • Could I back them up?
  • Did I really know?
  • Was I just parroting what I had heard?
  • How did I reach these conclusions?
  • Did I use logic?
  • Or guesswork?

At the time I don’t think I entirely understood what was happening.   But I knew it was important.   I made a point of taking every class he taught for the remainder of my high school sojourn.   I’ve had other good teachers in my life but none that could touch him.   Thank you Mr. Z.

Mr. Ziegel made the prediction to our history class that gas prices would reach $2.00 a gallon by the year 2000.   This “wild prediction” made everyone think Mr. Ziegel had lost his mind.

This was after all the enlightened 1970’s.   There was no way anything that insane would ever happen.   After all, Canada had our own oil fields.   Yet since that time Canadian gasoline prices have exceeded one dollar a litre.   Which converts to something in the neighborhood of four dollars a gallon.   So as it turns out, Mr. Ziegel’s prediction actually turned out to be terribly conservative.

Gas Pump 2005
2005 Gas Prices: $1.19 per litre

You may well be asking: high school?   The metric system?   Is this a digression or what?

And I’d have to say no, not entirely.

One of Prime Minister Trudeau’s majority governments forcibly implemented the metric system on Canada.   Although the metric system is rational, our largest trading partner — the United States — was not on the metric system.   (Of course they weren’t using the imperial system either, heck, I’m not sure what the American system is called.)

Canadians were not pleased.   Not pleased at all.   This was imposed on the country without any consultation.   What recourse to Canadians have against a majority government?   Uh, none actually.   Our only option is to vote against next chance we get.

So what happened?   Trudeau was voted out and Joe Clark in.   Sadly Clark’s minority government only lasted a couple of months before a non-confidence vote triggered an election.   During the campaign I remember Prime Minister Joe Clark warning Canadians that if Trudeau was re-elected, gas prices would rise by an extraordinary amount.   And Trudeau countered with the promise that gas prices would not go up as much as Clark said.   Naturally Canadians re-elected Trudeau with another majority government.   Of course, Trudeau actually kept his promise because gas prices didn’t hit the high promised by Clark.   Gas prices actually went much much higher.

The Trudeau Legacy

Gas Station Sandwich Board: $136.9
2005 Gas Prices: $1.36.9 per litre

But even so we still didn’t really get it.

What we saw was that the big number on the gas station that used to be seventy cents was now only twenty cents.   What didn’t really sink in was that twenty cents a liter really meant eighty cents a gallon.   Because the real reason we got the metric system was so that adult Canadians who weren’t adept at conversion (aka, everybody) would not really understand that gas prices were actually going up so much.

Prime Minister Trudeau certainly had chutzpa, as well as being the most intelligent man to hold the Canadian office of Prime Minister.   Even worse, he wasn’t just intelligent, he was smart.   And yes, he did some good things for Canada, but still, I will never forgive him for realizing that under our electoral system a majority government is essentially a dictatorship with a time limit.   Even worse, for making that fact crystal clear to all his less brilliant contemporaries.

Is it any wonder Canada has been poorly served by succeeding governments?

My political “awakening” happened in high school, thanks to Mr. Ziegel as well and other fine history teachers our school had.   They taught us we could make a difference.   I remember writing a letter to my MP Perrin Beatty and being totally amazed at a telephone call I received in response.   But that was then.   The Progressive Conservatives were the out of power “alternate party” so of course they were approachable.

Like many other Canadians, I have been increasingly disappointed in our governments.

Back to Canada, we have a Prorogue: Part 1 of 3   Back Navigational Arrow

Forward to Canada, we have a Prorogue: Part 3 of 3   Forward Navigational Arrow

Canada, we have a Prorogue: Part 1 of 3

PART 1 of 3

NOTE: I’ve broken the original gigantic “Canada, we have a Prorogue” article into 3 more manageable segments with no additions.
So if you read the long version, you will have already read this.

Canadian Flag flies in a rural setting
A flag flies in rural Canada

It takes a lot to anger Canadians, but when riled, that anger can move mountains.

The last time the Canadians got really angry at our government:

“The oldest party in Canada was reduced from a 151-seat majority to two seats in the worst defeat ever suffered for a governing party at the federal level.”

Wikipedia: Brian Mulroney

Funny, that was a Conservative government too.

Canadian Politics

The Canadian Encyclopedia
online article about the Canadian
House of Commons tells us that:

“The Parliamentary Calendar specifies the time of the year that the House sits.   Sessions of Parliament begin with a summons and end with prorogation.   Both are formally issued by the governor general in response to the government’s request.

Minority parliaments recently have lasted only one or two sessions.   Between 1867 and 1938 the annual sessions lasted only a few months; now they normally run a full year, with 3 long adjournments.   The main purpose of prorogation is to wipe clean the Order Paper.   All business unfinished at the end of a session – unanswered questions and all orders relating to bills and motions – die on the Order Paper.   The House controls its own adjournments, but the CROWN (which in this instance is the cabinet) controls both the length of a session and the Parliament. ”

House of Commons, The Canadian Encyclopedia

Just as every session of Parliament begins with a Summons,
every session of parliament ends with Prorogation.

Prorogation is intended to halt the law making process, and is generally employed after the all the new legislation has been passed.   Or not.   An administrative device to clear the decks before an election, prorogation sweeps away any incidental unfinished bureaucratic detritus and allows the new government coming in after the election the opportunity to govern from a fresh start as a a courtesy.   This is perfectly reasonable… why should the newly elected government be obliged to clean up the unfinished business of the old?

Prorogation can also be used for a changing of the guard without calling an election.   When Brian Mulroney chose to step down and hand the reigns of power over to Kim Campbell, he would have prorogued parliament, just as Prime Minister Jean Chrétien did when he retired in office and handed the reigns of government to his successor Paul Martin Jr.   This allows the successor to start with a clean slate, and falls under the normal intended uses of the prorogation procedure.

Prime Minister Stephen Harper has now twice employed prorogation in a completely abnormal way.   Harper prorogues parliament long before the legislative business of parliament is finished.   Because prorogation discards any laws that have not yet been voted on, most of the legislation that has cost a Canadians a great deal of time and money to craft — all the legislation which has not yet been passed into law — has simply been swept away in the blink of a Prime Ministerial phone call to his tame Governor General.

Prime Minister Stephen Harper has treated a great deal of the work done by the 40th Canadian Parliament by discarding the bulk of the legislation as bureaucratic detritus.

Until now, prorogation was simply a bit of political jargon that covered a routine bit of business.   Like every other ordinary Canadian, I hadn’t even heard the term prorogation before Prime Minister Stephen Harper chose this way to subvert the Canadian democratic process.

Canadian prorogations of 2008 and 2009

During the 40th Parliament of Canada, Prime Minister Stephen Harper has prorogued Parliament twice, both times attracting significant national and international media attention.   Canadian Parliaments have always been prorogued every one to two years, but those prorogations were usually seen as procedural rather than political moves and attracted little media attention.   The 2008 prorogation was soon after the first session began and was to avoid a vote of no confidence from opposition parties, an unprecedented use of prorogation. ”

Wikipedia

Prime Minister Stephen Harper

Prime Minister Stephen Harper has now twice misused the prorogue process in order to bypass Canadian democracy.   Prorogation to evade hard questions and retain personal power has cost taxpayers far more money than an election would have, since all of the unpassed laws that this session of parliament was working on have been swept into the trash.   Heaps of money wasted. All so Harper could remain in office with the hope Canadians would forget the questions we have demanded answers to.

Prime Minister Stephen Harper doesn’t much like leading a minority government.   He seems to have a great deal of difficulty playing well with others.

American President Richard M. Nixon

For myself, I am very happy that we have a minority government, probably for the very same reasons that Mr. Harper is not.

Because the Prime Minister of a minority government is accountable.   The plug can be pulled on his authority at any time.   That’s a good thing for citizens.   One of the reasons Canada needs election reform is that when we have a minority government there is currently no mechanism in our electoral system to remove a bad Prime Minister.

One thing I admire about the American electoral system is that they have legal remedies: even their president is not above the law because impeachment is a remedy open to them.   Another is the fact that a President is barred from serving more than two consecutive terms.   In itself that would prevent a lot of electoral abuse in Canada.   When we have a majority leader in Canada we’re stuck with him.

Forward to Canada, we have a Prorogue: Part 2 of 3   Forward Navigational Arrow

copycon: SOCAN advocates 1 Strike

Canadian copyright

Even though I didn’t have the time, I made the time to submit my own copyright consultation submission as a consumer and a writer.

Submissions to the Industry Canada copyright econsultation website were to be publicly posted to allow everyone who was interested to read all the submissions online.

It was excellent that the Canadian Government decided not only to ask for Canadian input, but to decide to share it. The very process bodes well both for transparency in government and for the future of democracy in Canada. I was happy to have the opportunity to say my piece; maybe my words might help shape the new copyright laws to create a better world for our children.

Copyright Consultation FAQ:

8.) Will my comments be made public or posted online? What if I don’t want my comments to be made public?

Your comments will be made public on the copyright consultation website. Please see the guidelines on how to participate for more information.”

Naturally I was surprised to read on Michael Geist’s website that SOCAN wanted special treatment for their copyright consultation submission.   SOCAN wanted their say without having it posted on the copyright consultation web page along with the rest of us.

Why doesn’t SOCAN want their submission posted publicly?

We showed them ours, its only fair that they show us theirs.   Simple reciprocity.

SOCAN’s “above the law” attitude disturbed me even before reading the submission. SOCAN is a royalty collection agency for “musical works”. According to Duhaime.org in Canada this means “One for the song and another for the recording (considered two different works).” SOCAN expects the world to follow the rules of copyright and make payments to them under those rules.   Yet SOCAN doesn’t want to follow the rules of the Copyright Consultation.

If I was running the Copyright Consultation, I would be inclined to discount a submission from anyone who insisted on having special treatment. But apparently Industry Canada is more forgiving than I, so they effected a compromise: they put up a link so interested parties could get the PDF file emailed.

Every other submission can be read online without sacrificing personal identity or security.   I don’t think it’s right that any Canadian citizen should be forced to give up their anonymity in order to be able to read the SOCAN submission or be forced to use a PDF.

Much as I dislike and distrust PDF files, if the provocation is great enough, I will break down and risk opening a PDF if I really need to see what’s inside.   Because I care about the copyright process I wanted to know what SOCAN had to say. So I sent for the PDF and read it.

Now, I’m not a musician or a songwriter but after reading SOCAN’s submission I can understand why they might prefer this kept dark. There are some disturbing things in the SOCAN document, like the imperious tone which makes it sound less like a submission and more like issuing orders.

Mis-implication

SOCAN makes a concerted attempt to imply that Canada is bound by previous drafts of unpassed laws and treaties we have not yet signed.   This is nonsense.  It doesn’t matter how many lawyers worked on a document, or how much you like it, laws need to be passed and treaties ratified before they are binding on anyone.

best positioning Canada as a follower

I was surprised that SOCAN is touting a 70 years after the death of the creator clause as a supposed means of positioning Canada as a global leader.   Maybe I lack the requisite imagination to see how jumping on the Disney bandwagon and following what other countries have done could possibly be extolled as leadership.

Interestingly enough, it doesn’t really make much difference to creators– after all, what does it matter to you if you’ve been dead fifty or seventy years?   Rather than benefiting creators, this is a copyright provision which can only benefit those who make money from the creators.

1 strike and you’re out

SOCAN is also advocating the most draconian penalties of all… Notice and Takedown, which almost makes three strikes laws look benevolent.

SOCAN’s advocacy of DRM/TPM devices because “they help creators to monitor the use of their works and enforce their rights” is hard for me to understand.   I’m curious about this because I’ve never heard of creators having control over DRM or TPM.   My understanding is that these are copyright controls practiced by corporations rather than creators.

who does this submission actually represent?

The submission quotes SOCAN as having 35,000 members but the SOCAN website front page quotes “90,000 composer, author and music publisher members”.

That’s a pretty big discrepancy.   I wonder which number is correct.

The submission seems to favor corporations holding copyright more than the creators of musical works.   Personally, I’d want to hear from the actual creator membership before giving credence to this this submission.

Now having read the SOCAN copyright submission, it occurred to me that no one else would need to compromise their personal anonymity or their personal security to read this public submission if I posted it here:

SOCAN

C. PAUL SPURGEON
Vice-président, Services juridique et Chef du contentieux
Société Canadienne des auteurs, compositeurs et éditeurs de musique
Vice President, Legal Services B General Counsel
Society of Composers, Authors and Music Publishers of Canada

September 11, 2009

The Honorable Tony Clement, Minister of Industry
Industry Canada
C.D. Howe Building
235 Queen Street
Ottawa, Ontario
K1A OH5

The Honorable James Moore, Minister of Canadian Heritage
Canadian Heritage
15 Eddy Street
Gatineau, Quebec
K1A OM5

SOCAN’S RESPONSE TO THE NATIONAL CONSULTATIONS ON COPYRIGHT MODERNIZATION

* INTRODUCTION

1. This Submission is presented on behalf of the members of The Society of Composers, Authors and Music Publishers of Canada/Société canadienne des auteurs, compositeurs et éditeurs de musique (“SOCAN”) in response to the Government of Canada’s National Consultations on Copyright Modernization, which were launched on July 20, 2009 (the “Consultations”).

2. This Submission provides SOCAN’s response to the following questions, which the Government of Canada has posted on the Consultations website:

I. How do Canada’s copyright laws affect you? How should existing laws be modernized?

II. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

III. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

IV. What sorts of copyright changes do you believe would best foster competition and investment in Canada?

V. What kinds of changes would best position Canada as a leader in the global, digital economy?

I. HOW DO CANADA’S COPYRIGHT LAWS AFFECT YOU?
HOW SHOULD EXISTING LAWS BE MODERNIZED?

3. SOCAN is a Canadian owned and operated not-for-profit organization, which is directly affected by Canada’s copyright laws.

4. As we stated during the Toronto Town Hall Meeting on August 27, 2009, for over 80 years SOCAN and its predecessors have represented composers, lyricists, songwriters, and publishers of musical works from across Canada and around the world.

5. On behalf of our more than 35,000 active Canadian members, and members of affiliated similar societies from around the world, SOCAN collectively administers a specific copyright.

6. The copyright that we administer is the performing right in music and lyrics, which are commonly referred to as musical works.

7. The performing right is that part of copyright that gives owners of musical works the sole right to perform in public, to broadcast or communicate their works – or to authorize others to do so, in return for royalty payments.

8. These performing rights royalties are important to SOCAN’s members because they are risk-takers who do not get paid “up front” for writing songs. They are only entitled to receive copyright royalties if their song is actually performed or communicated by others.

9. The amount of copyright royalties our members receive is determined by the Copyright Board of Canada. This quasi-judicial tribunal balances the interests of both creators and users, and allows interested parties an opportunity to be heard in transparent public hearings.

10. We believe that Canada’s existing copyright laws should be modernized in a manner that balances the rights of SOCAN’s members and other creators with the needs of users of copyrighted works.

II. BASED ON CANADIAN VALUES AND INTERESTS, HOW SHOULD COPYRIGHT CHANGES BE MADE IN ORDER TO WITHSTAND THE TEST OF TIME?

11. A fundamental Canadian value is respect for the rule of law. To ensure that copyright law is clearly understood and respected, any changes to Canada’s Copyright Act must be technologically neutral, carefully drafted, and crystal clear. lf Parliament’s intent is ambiguously expressed in the legislation, confusion and costly litigation will result, and the marketplace will not function effectively.

12. SOCAN’s response to this question is presented under the following five subheadings:

1. The Making Available Right (“MAR”)

2. Bill C-6O’s MAR Provisions

3. Bill C-61’s Lack of MAR Provisions

4. The Need for Clarity in Copyright Act amendments

5. Technological Neutrality

1. THE MAKING AVAILABLE RIGHT (“MAR”)

13. The Making Available Right (the “MAR”) is defined in Article 8 of the World lntellectual Property Organization (the “WIPO”) Copyright Treaty as follows:

Wíthout prejudice to [enumerated provisions] of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

14. lt is noteworthy that, during the past 4 years, the MAR for authors of musical works has been treated very differently in two Bills that died on the Order Paper
as a result of the last two Federal General Elections:

An Act to Amend the Copyríght Act, First Reading on June 20, 2005 (“Bill C-6O”); and  An Act to Amend the Copyright Act, First Reading on June 12, 2008 (“Bill C-61 “).

2. BILL C-60’s MAR PROVISIONS

15. When Bill C-60 was tabled 4 years ago, the former government made it clear that its proposed MAR amendment was not intended to create a new right for authors, including SOCAN’s members. lnstead, the MAR amendment was intended to clarify an existing right:

Bill C-60 amends the Copyright Act to implement the copyright protections required by two World intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).

Amendments in this regard are as follows..

-the existing exclusive communication right of authors is clarified to include control over the making available of their material on the internet ‘

(emphasis added)

16. The existing exclusive communications right of authors appears in the Copyright Act (the “Act’) under the heading “Copyright in works”, where paragraph 3(1)(f)states:

For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right…in the case of any literary, dramatic, musical or artistic work to communicate the work to the public by telecommunication… and to authorize such acts.

(emphasis added)

17. Subsection 1(2) of Bill C-60 specifically provided for the MAR for authors by including the following language:

a person who makes a work or other subject-matter available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them communicates it to the public by telecommunication;

18. ln contrast to the Bill C-60 provisions tabled in 2005, when Bill C-61 was tabled in 2008, it did not specifically provide for the MAR for authors.

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1.Bill C-60 Backgrounder.

This and other government statements at the time regarding the clarification of an existing right followed the recommendations of the Canadian Bar Association (the  “CBA”) and the Intellectual Property lnstitute of Canada (the “IPIC”) Joint Copyright Legislation Technical Committee. ln particular, the CBA/IPIC Joint Copyright Legislation Technical Committee recommended that the Act be amended to clarify that an exclusive right of”making available” is included as part of the right to communicate the work to the public, and that this change be made by way of “clarification” to avoid problems with existing licensing arrangements.

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3. BILL C-61’s LACK OF MAR PROVISIONS

19. Bill C-61 included specific language to create the MAR for performers and makers of sound recordings but, unlike Bill C-60, contained no such language regarding the MAR for authors.

20. lf Parliament amends the Act to specifically provide a MAR for performers and sound recording makers only, the absence of a similar specific MAR for authors could create uncertainty, give rise to a judicial distinction, or enable litigants to argue that Parliament only intended to create a MAR for performers and sound recording makers – and not authors.

2.1 Second, as discussed above, the striking contrast between Bill C-60 and Bill X-61 cannot simply be ignored. And those who choose to challenge SOCAN will stress the importance of this contrast noting the fact that the former Liberal Government included MAR wording for authors when it tabled Bill C-60 in 2005, whereas the current Conservative Government did not include MAR wording for authors when it tabled Bill C-61 in 2008.

22. Due to this inconsistent treatment of the MAR for authors, SOCAN is concerned that confusion and costly litigation could arise if new legislation does not adopt the original Bill c-60 approach and clarify that the existing exclusive communications right of authors includes the MAR.

4. THE NEED FOR CLARITY IN COPYRIGHT ACT AMENDMENTS

23. lt has been SOCAN’s experience that, when Parliament enacts legislation that is not crystal clear, costly litigation and appeals result.

24. For example, in 1989, the legislation that implemented the Canada-United States Free Trade Agreement amended the Act to provide copyright owners with the right “to communicate to the public by telecommunication”. Although the amendment was intended to cover all communications of any kind whatsoever, the courts held that the statutory language was not sufficiently clear.

25. As a result, SOCAN became embroiled in several costly hearings, law suits, and appeals(2). Eventually, it became necessary to obtain another statutory amendment, Bill C-88, which Parliament enacted in 1993.

26. lf Parliament does not provide clear statutory guidance to the Courts, SOCAN fears that we may once again become embroiled in time-consuming, costly litigation.

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(2) See CTV Television Network Ltd. v Canada (Copyright Board), [1993] 2. F.C. 115(Federal Court of Appeal) and Canadian Cable Television Assn. V. Canada (Copyright Board) , [1993] 2 F.C. 138, (Federal Court of Appeal)
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27. To ensure there is no confusion regarding the MAR for authors, SOCAN recommends that the Bill c-61 approach not be adopted.  ln our opinion, Bill c-61 (if  reintroduced) needs to be changed if MAR for authors is to be recognized, without question, as already forming part of the Act.

We are of the view that language appropriate for this purpose can be derived from the Bill C-60 definitional provision mentioned above to clarify the meaning of the section 3(1)(f) communication right (either in section 3(1)(f) itself or in section 90), together with clear wording to establish that the meaning has always been the case (and not just dating from the coming into force of this Bill). For example, an amended section 3(1)(f) could read as follows:

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication; for greater certainty it is deemed always to have been the law that a person who makes a work available to the public in a way that allows members of the public to access it by telecommunication from a place and at a time individually chosen by them communicates it to the public by telecommunication.

In our opinion, this clause (or one of similar import) would confirm that the right of communication to the public by telecommunication in our Act includes, and has always included, the MAR right for authors.

28. To make certain that the problems that arose in 1989 are not repeated in 2009, SOCAN submits that amendments to the Act should include the foregoing language recommended above.

5. TECHNOLOGICAL NEUTRALITY

29. To ensure Canada’s copyright laws can withstand the test of time, they should not be confined to the technology that exists when they are enacted.

30. For example, when the Act was amended in 1997, it created a private copying levy to compensate right holders when Canadians make copies of their work for personal use. However, the courts have interpreted the wording to only apply the levy to blank media like audio cassettes, Mini-Discs and CD-Rs. A decade later, the amendments have not kept pace with changes in technology because this particular kind of blank media technology is no longer popular. lnstead, Digital MP3 players like the iPod have become the overwhelming medium of choice for copying and storing music.

31. lt is therefore clear that the copyright amendments enacted in 1997 have not stood the test of time, and the Act must be updated to deal with private copying technologies in the digital age today, and tomorrow. Canada’s laws must be expressed in such a way as to be “technology neutral”.

32 SOCAN is a member of the Canadian Private Copying Collective (the “CPCC”). We strongly support the CPCC’s efforts to ensure the Act’s private copying provisions are technologically neutral so they can stand the test of time.

III. WHAT SORTS OF COPYRIGHT CHANGES DO YOU BELIEVE WOULD BEST FOSTER INNOVATION AND CREATIVITY IN CANADA?

33. To best foster innovation and creativity in Canada, Parliament must ensure that those who innovate and create are fully compensated when their works are used.

34. Therefore, copyright amendments must not set up unwarranted exemptions, or otherwise limit, the copyright royalties paid when the musical works of SOCAN’s members are performed or communicated.

35. lf you deprive SOCAN’s members of copyright royalties, you are basically asking over 35,000 Canadian individuals to take risks and work for nothing. That’s not
realistic, and it’s not fair.

36. Canada’s copyright legislation creates certain exclusive rights for rights holders. However, the Act also deviates from these exclusive rights because some uses of works are permitted without the rights holder’s authorization, or without remuneration. These deviations are called ”exceptions”. ln other cases, authorization is not required, but creators and other rights holders are entitled to remuneration.

37. There is a fundamental difference between:

(1) the creators’ exclusive right to authorize the use of their works;

(2) the creators’ right to remuneration when they do not have the exclusive right to authorize the use of their works; and

(3) exceptions, where creators have neither the right to authorize the use of their works, nor the right to remuneration.

38. SOCAN submits that stripping creators of their rights is contrary to longstanding international norms and treaties to which Canada is a Party.

39. For example, Article 9(2) of the Berne Convention For The Protection of Literary and Artistic Works (Paris Text 1971) (the “Berne Convention”) creates the following three-step test:

It shall be a matter of legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(emphasis added)

Moreover, Article 11bis (2) of the Berne Convention states:

It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.

(emphasis added)

40. Likewise, Article 13 of the World Trade Organization (the “WTO”) Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) includes the aforementioned Berne Convention’s three-step test, which must be respected by any limitations or exceptions to the exclusive rights of SOCAN’s members and other rights holders:

Members shall confine limitations or exceptions to exclusive rights to:

– certain special cases

– which do not conflict with a normal exploitation of the work and

– do not unreasonably prejudice the legitimate interests of the right holder.

41. On July 27, 2000, the WTO Dispute Settlement Body adopted the Panel Report entitled United States – Section 110(5) of the US Copyright Act(3). The WTO Panel considered the aforementioned Article 13 of the TRIPS and concluded that an exception in the US Copyright Act was inconsistent with provisions of the Berne Convention, which had been incorporated into the TRIPS Agreement.

42. The WTO Panel therefore recommended that the Dispute Settlement Body ask the United States to bring its copyright exception into conformity with its obligations under the TRIPS Agreement. The Panel further noted that:

. . .in cases where there would be a serious loss of profit for the copyright owner, the law should provide him with some compensation (a system of compulsory licensing with equitable compensation).4

43. It should also be noted that, under the heading “Limitations and Exceptions”, Article 10 of the WIPO Copyright Treaty states:

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

The Agreed Statement concerning Article 10 states:

It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and  exceptions in their national laws which have been considered acceptable under the Berne Convention. Simílarly, these provisions should be understood to permit  Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.

It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.

44. The regime that applies to SOCAN is preferable to exceptions because it strikes an equitable balance between the rights of creators and the needs of users, and it enables Canada to respect its international treaty obligations. This regime allows composers, lyricists, songwriters, and their publishers, through their collective SOCAN, to decide, on their own volition, to donate the use of their works to a particular user, for a particular purpose.

45. ln the event SOCAN is not prepared to forego remuneration, and SOCAN and a user are unable to agree on a royalty, the Copyright Board of Canada provides a fair mechanism to set the royalty and balance the rights of users and creators.

46. Moreover, the Act already recognizes that exceptions are not appropriate where licenses are available from a collective society. For example, subsection 30.9(6)

of the Act limits the ephemeral rights exception for sound recordings “if a license is available from a collective society to reproduce the sound recording, performer’s performance or work”. This balanced mechanism is preferable to outright exceptions which deprive creators of remuneration when their works are used.

47. As a Party to Berne and the WTO TRIPS treaties (and a potential Party to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty), we submit that Canada must fully respect the foregoing 3-step test regarding any existing or proposed copyright limitations and exceptions.

48. ln accordance with Canada’s copyright treaty obligations, SOCAN hereby opposes any attempts to promote exceptions at the expense of creators’ rights, including the right to full compensation for the use of musical works.

IV. WHAT SORTS OF COPYRIGHT CHANGES DO YOU BELIEVE WOULD BEST FOSTER COMPETITION AND INVESTMENT IN CANADA?

49. To foster competition and investment in Canada, the Act must enable creators to defend their works from exploitation without compensation. Digital Rights Management measures play an important role in this regard because they help creators to monitor the use of their works and enforce their rights.

50. The term Digital Rights Management (“DRM”) normally refers to the following two distinct measures:

. Rights Management lnformation (“RMI”); and

. Technological Protection Measures (“TPMs”).

51. A good definition of RMI appeared in Section 41.21 of Bill C-61:

“rights management information” means information that

(a) is attached to or embodied in a copy of a work, a performer’s performance fixed in a sound recording, or a sound recording, or appears in connection with its communication to the public by telecommunication;
and

(b) identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or the holder of any rights in the work, the performance or the sound recording, or concerns the terms or conditions of the work’s, performance’s or sound recording’s use.

52. This definition reflects the provisions of Article 12 of the WIPO Copyright Treaty, which states:

(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention.

(i) to remove or alter any electronic rights management information without authority;

(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights  management information has been removed or altered without authority.

(2) As used in this Arficle, “rights management information” means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

53. SOCAN licenses the world’s music repertoire and we encourage the lawful use of music. To identify whose musical works are used so that we can distribute the royalties we collect to individual creators, we rely on RMI. No invasion of privacy is required to fulfill our identification requirements, because we do not need to know which particular musical work was lawfully used by a particular individual.

54. To ensure creators can monitor the use of their works and enable them to enforce their rights, the Act should implement the RMI provisions of Article 12 of the WIPO Copyright Treaty and provide meaningful and efficient legal remedies.

55. Second, with respect to TPMs, SOCAN does not rely on these measures because our mandate is to license the world’s music repertoire and collect royalties in accordance with tariffs set by the Copyright Board of Canada. However, we support the right of copyright owners to use TPMs to protect their works if they so desire. We therefore submit that the Act should be amended to fully implement Article 11 of the WIPO Copyright Treaty, which states:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

56. Third, with respect to both DRM and TPMs, SOCAN submits that, in accordance with Article 14 of the WIPO Copyright Treaty, the Act should be amended to ensure that all enforcement procedures permit effective action against any act of infringement, including expeditious remedies to prevent infringements, and remedies which constitute a deterrent to further infringements.

V. WHAT KINDS OF CHANGES WOULD BEST POSITION CANADA AS A LEADER IN THE GLOBAL, DIGITAL ECONOMY?

57. To best position Canada as a leader in the global, digital economy, the Act should be amended to recognize the major role that lnternet Service Providers (“ISPs) play in facilitating copyright infringement.

58. Bill C-61 attempted to clarify the liability of ISPs by adopting a “notice and notice” regime. SOCAN submits that Bill C-61 did not fully recognize the role that ISPs play in copyright infringement, and the fact that ISPs now openly market their services and charge higher prices based on bandwidth and their customers’ ability to “download high quality music files, stream video, or play games”.’

59. To best position Canada as a leader in the global, digital economy, SOCAN therefore submits that Parliament should enact a “notice and takedown” regime.

60. Second, Parliament should extend Canada’s copyright term from 50 years to 70 years after the death of the author.

61. Under section 6 of the Act, the general term during which copyright subsists is the life of the author, the remainder of the calendar year in which the author dies, and a period of 50 years following the end of that calendar year.

62. Human longevity has increased since the 19th century when the 50-year term was established, and many countries have extended the term of copyright protection to reflect the fact that people now live longer. For example, European countries provide for a minimum term of 70 years following the death of the author.

63. To best position Canada as a leader in the global, digital economy, SOCAN therefore submits that Canada should also extend the Act’s copyright term from 50 years to 70 years, in order to bring Canada in line with many of its major trading partners.

VI. CONCLUSION

64. SOCAN welcomes this opportunity to participate in the Consultations and provide our preliminary views regarding copyright reform. We will provide further

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See http://www.bell.ca/shopping/PrsShpint.NewAccess.page?userType=NEW

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submissions once the legislation is tabled and it is referred to a parliamentary committee.

65. with respect to the parliamentary committee that will consider this legislation, SOCAN notes that, pursuant to the Department of Canadian Heritage Act, the jurisdiction of the Minister of Canadian Heritage includes the formulation of cultural policy as it relates to copyright.

66. ln 1996-1997, when the last major legislative amendments were made to the Act, the legislation (Bill C-32) was considered by the Standing Committee on Canadian Heritage. SOCAN submits that this Standing Committee should again have sole responsibility, or its members should play an equal role on any House of Commons Committee that considers amendments to the Act.

67. We look forward to working with Ministers, their officials, and Members of Parliament to ensure that the Consultations lead to the enactment of modern legislation in 2010.

Yours truly,

C. Paul Spurgeon

CPS/jb

SOCAN’s Response to the National Consultations on Copyright Modernization Page 13 of 13
September 1 1, 2009 ”

[If you would like to read the original PDF without having to give up your email address, you can now find it at: p2pnet: Secret SOCAN copyright doc online]

[P.S. Being new to contemplation of copyright issues, and a non-lawyer, I can sometimes intuitively figure things out. There are so many things at play here that I was unaware of. Please read Howard Knopf’s Excess Copyright Blog for a far better understanding of the issue.
–Laurel L Russwurm. December 9, 2009]