Fair Digital Copyright for Canada – Insights from a new Phd thesis by Blayne Haggart

A while ago, I was interviewed by Blayne Haggart, a Carleton University Phd student, for his doctoral dissertation on digital-copyright reform in North America (Canada, Mexico, and United States). We talked about my work with the Fair Copyright for Canada Facebook group plus organizing an impromptu citizens’ meeting with the then Minister of Industry Hon. Jim Prentice in December 2007 (see report here and here).

I want to publicly congratulate Blayne for defending his Phd thesis successfully in May 2011. Congrats Dr. Haggart!

In my congratulation email to Blayne, I wonder out loud the dilemma we face. I wonder if we, the Canadians who have cared so much about Digital Copyright that we spent hours to protest and sent in our written submissions for government’s various consultations over the years, have won these battles in defeating bad Digital Copyright bills but may ultimately lose the war to the lobby groups because of a Harper majority government?

I hope the Harper majority government will have learned to respect Canadians’ views expressed in the previous failed Digital copyright reform. Even though I am not optimistic as the lobby groups are strong, I am willing to be hopeful, in fact, I have no choice but be hopeful. Because at this point, a new bad copyright bill will lead to new protests and I would rather be doing something else!

Dr. Blayne Haggart’s Phd Thesis

Here is a link to Blayne’s full Phd thesis “North American Digital Copyright, Regional Governance and the Potential for Variation” (provided to me by Blayne and reposted with permission). (20210211 update: fix broken link. Now points to Carleton University’s Curve system.)

Canadians may find “CHAPTER 4: CANADA AND THE INTERNET TREATIES: ABORTED IMPLEMENTATIONS” (page 248 of the Phd thesis PDF file, and page 237 of hard copy) very interesting to read. Here is “Facebook activism comes to Canada” an excerpt from Chapter 4 subsection “ii. Facebook activism comes to Canada” under section “III. 2007-08: Bill C-61 and the triumph of the U.S. lobby” (page 297 of the Phd thesis PDF file, and page 286 of hard copy) (20210211 note: emphasis added, sorry, it highlights the bit I, Kempton, is mentioned by name),

ii. Facebook activism comes to Canada

Following his arrival at Industry Canada, Prentice attempted to introduce a DMCA- style copyright bill and ended up fomenting widespread public protests that panicked the government, confounded Cabinet colleagues and led to a six-month delay in the bill’s introduction that rendered it collateral damage when the September 2008 election was called. This uprising vindicated Austin and Bernier’s intuition about the political dangers of copyright reform. In the end, the Conservative’s Bill C-61, like the Liberals’ Bill C-60, never got beyond first reading.

In the October 16, 2007, Speech from the Throne, the Conservative government pledged to “improve the protection of cultural and intellectual property rights in Canada, including copyright reform” (Canada 2007). When the government placed An Act to Amend the Copyright Act on the Order Paper on December 10, 2007, observers of Canadian copyright expected that this new bill would be much closer to the DMCA than the Liberals’ C-60 had been.216

What happened next caught everyone off guard. The first weekend in December, Geist set up a Facebook page, Fair Copyright for Canada (FCFC).217 The site’s initial objectives were relatively modest: to inform people and to get people involved in opposing the bill. Its main demand was that the government listen to the public. Eventually, this demand became more specific: that the government hold public consultations on any new bill. Geist and others critiqued the upcoming bill by referring to it as the “Canadian DMCA.” This approach not only focused on a bad policy (i.e., DMCA-like law would be bad for Canada) but linked the issue to the always-latent sentiment of Canadian anti-Americanism. This symbolic bricolage, which played to a long-standing Canadian prejudice, was made more potent given the fact that the United States, and U.S.-based industries were the main groups lobbying for this bill. It was such a powerful linkage that it necessitated a direct rebuttal from the government, which insisted that the bill was indeed “Made in Canada” and his opponents were practicing base anti-Americanism.

With Geist’s Facebook page, the public interest in copyright that had been building for almost a decade exploded into view. After only a month (in January 2008), the page had almost 40,000 members; as of June 2010 it had just under 88,000 members. FCFC proponents argued these numbers represented frustration with the “resistance on the part of our policymakers to grapple with what’s really going on and to produce solutions that are right for us,” in the words of Toronto-based technology lawyer and FCFC member Rob Hyndman (Interview by author, April 22, 2008). In contrast, the government saw the protests as representing only a passionate minority causing “a lot of miscommunication, a lot of misinformation,” according to Jean-Sébastien Rioux, Chief of Staff to then-Industry Minister Jim Prentice (Rioux, interview by author, February 26, 2009).

Individuals also used the FCFC page to organize quasi-independent lobbying efforts, local FCFC groups and grassroots-action campaigns (Geist, interview by author, May 14, 2008). One member, Kempton Lam, a Calgary blogger, software engineer, consultant and documentary maker, used FCFC to organize an impromptu meeting (covered by the mainstream media) with Prentice during a Christmas Open House in his riding office on December 8. Between 40 and 60 people showed up and were eventually able to talk with the minister.218 This Facebook-based activism and the mainstream media press it attracted worried Conservative MPs, who had to deal with irate constituents on an unfamiliar issue, while cabinet ministers who understood the technology were also reluctant to move forward on this copyright bill (Austin, interview by author, April 30, 2008).”


“This dissertation proposes an historical-institutionalist framework for understanding regional governance issues in general and North American governance in particular. Using digital- copyright reform as a test issue, it demonstrates that regional institutionalization can preserve differences and does not necessarily lead to regional policy convergence. This conclusion emerges from historical institutionalism’s focus on understanding the interaction of the policy-relevant ideas, institutions and interests shaping a region, no matter on what “level” they may be located. Regional governance processes must be understood within their own particular historical contexts. This approach allows the researcher to account for relevant influences that are either downplayed or ignored in other approaches to regionalism.

With respect to copyright, this dissertation finds that U.S. digital-copyright policy is shaped decisively by its own domestic ideas, institutions and interests, with international and regional factors playing a minimal role. For Canada and Mexico, while the United States has attempted to influence copyright reform in its neighbours, both countries’ copyright policies continue to be influenced significantly by domestic factors, and both countries continue to display significant copyright-policy autonomy. U.S. ability to influence its neighbours is constrained by the North American Free Trade Agreement’s (NAFTA) guarantee of market access, which limits the U.S. ability to link copyright reform to improved access to its market, suggesting that NAFTA’s rules play a role in maintaining policy autonomy and reducing the potential for policy convergence.”

P.S. Blayne must be doing his job right since he received, in June 2010, some alarming and unseemly comments (terms like “radical extremist” being thrown around) from Minister James Moore. [HT Blayne]

Unfortunately, I think many people who don’t totally agree with Moore have sadly seen the dark sides of James Moore. In my case, I have shared my James Moore experiences in “Democratic right Twitter-blocked by @MPJamesMoore” (March 2011).

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