Tuesday, April 20, 2010
Re-doing the math (please show your work)
Last summer, after the copyright reform bill C-61 died on the order paper in Parliament, the federal government held a number of public town halls and roundtables to discuss ongoing copyright reform and the possibility of changes to Canada’s Copyright Act. These discussions were recorded and a robust debate that had previously been taking place mostly online spilled over into the physical world. Present at these events were Industry Minister Tony Clement and Heritage Minister James Moore – their federal ministries will be responsible for writing any new legislation.
The consultation also provided an online forum for submissions from the general public. Anyone interested in copyright reform for the digital age could submit their opinion to the government. I submitted my opinion last September. You can still read it on the consultation website.
The decision to provide an online tool was great for accessibility, and was presumably informed by the fact that the copyright debate had recently shown some impressive penetration into the Canadian psyche. Consumer advocate Michael Geist had encouraged the explosive growth of the public discussion by creating a Facebook group, Fair Copyright for Canada, claiming 83,893 members (today; although, I believe it once topped out at over 90,000 members). Geist also created a special website – Speak Out on Copyright – to encourage more submissions to the consultation. The website also provided handy answers to the government’s questions, based on Geist’s own opinions. With such an effective consumer lobby mechanism in place, the government could be excused for expecting their online consultation might attract somewhere close to 80,000 submissions on this hot topic.
In the end, the numbers were far more modest. By Michael Geist’s own count there were just over 8,300 submissions (or roughly one-tenth of the expected potential). Mr. Geist did a quick analysis of the submissions, and came to a persuasive conclusion – “the overwhelming majority reject[ed] Bill C-61 (6138 submissions against, 54 in support), while thousands called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules.” In other words, the vast majority of the submissions were very closely aligned to Geist’s own “short answer” section on his Speak Out website.
Case closed, it would seem. Given the opportunity for informed Canadians to give their opinion on the specifics of copyright, we seem to agree with Michael Geist.
On the other hand, a closer analysis of the consultation results and numbers suggests a very different result.
Technology lawyer Richard C. Owens has taken a closer look, and published his findings in a publicly available paper called Noises Heard: Canada’s Recent Online Copyright Consultation Process. You can find a short intro to the paper here and the full document as a PDF can be linked to from the intro.
Owens pulls the consultation apart submission by submission, and includes analysis of uniqueness, potential bias and issues of submission verification. Most concerning for everyone involved is his finding that "70% of the total submissions were “form letters” originating from a single little-known group of modchip distributors – the Canadian Coalition for Electronic Rights (CCER) – that had its form letter extensively circulated internationally on BitTorrent related sites. As a result, it appears that many of the submissions were not even made by Canadians”.
Owens’ paper concludes:
“If the aim of the Consultation was to canvass public opinion and discern trends, it failed.”…
“An online public consultation on a highly technical and complex area of law might provide some degree of useful context, but by and large it can accomplish little that will be of direct application. Much more useful is to solicit the opinions of the members of the communities that are truly informed. In Canada, that is certainly a large enough population to yield a great many useful submissions. Ministers Moore and Clement are strong ministers and they need the support of the best and most rigorous processes. In fact, Minister Clement has recently called for further consultation on Canada’s digital economy strategy. Let’s be sure that our next consultation is more fruitful.”
Owens’ rigorous analysis was published yesterday. Today, the Canadian Coalition for Electronic Rights has posted a response to Owens on their website (not entirely off-topic, the CCER website lists no less than 5 Michael Geist-related websites in their short “Resources” section). CCER accuses Owens of “hitting the panic switch” in a “tirade” designed to “discredit and silence the voice of thousands of Canadians who made submissions to the 2009 public consultations on copyright.”
Rather than “gaming” the consultation with form letters, the CCER claims they were seeking to “help those Canadian’s who wanted to have their voices heard but were reluctant to do so because they feared that alone they could not effectively articulate their ideas and desires for future of Canadian copyright.”
Michael Geist has also responded very quickly on his blog:
“Given that the copyright consultation attracted greater participation than virtually any government consultation effort in recent memory, it is hard to see how it can be deemed a failure from a participation and public opinion perspective.“
On the issue of form letters, Geist takes an interesting tack. I’m paraphrasing, but it’s something like… form letters may carry less weight, but both sides used them; and of the less-weighty submissions, the anti-C-61 ones were less-weightier.
The comments section on Geist’s blog goes even further in criticizing Owens’ article, labeling him a corporate shill, a vulture, and making reference to German fascism in the 1930s. Please note, Geist does not moderate the comments on his blog, and the opinions of those commenting on his blog should not in any way be seen as approved by Geist.
The debate, briefly made corporeal in town halls across the country, has returned to its online roots. Sigh. One thing I’m sure of in all this. I did not use a form letter to write my submission and, as an independent professional artist, I look forward to the next opportunity to discuss this issue with lawmakers.
Globe & Mail coverage of the form letter story.
IP, Innovation and Culture blog accuses CCER of subverting democracy.
Music • Technology • Policy blog analyzes the controversy in extreme detail.
IP lawyer Barry Sookman blogs about the Owens' article and related controversy.