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[d@DCC] Are the words of the current Minister of Heritage what the Liberals

From: Russell McOrmond <russell _-at-_ flora.ca>
To: Frulla.L (at) parl.gc.ca
Cc: Masse.B -_at_- parl.gc.ca, "McGuinty, David - M.P." <McGuinty.D -_at_- parl.gc.ca>, General Copyright Discussions <discuss -_at_- list.digital-copyright.ca>, "Angus, Charlie - M.P." <Angus.C -_at_- parl.gc.ca>, Emerson.D -_at_- parl.gc.ca, Oda.B -_at_- parl.gc.ca, Rajotte.J -_at_- parl.gc.ca, Kotto.M -_at_- parl.gc.ca, Crete.P -_at_- parl.gc.ca
Date: Thu, 28 Apr 2005 16:04:32 -0400 (EDT)

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   Dear Honourable Liza Frulla, Minister of Canadian Heritage and Minister 
responsible for the Status of Women.

   I would like to thank Luc Rouleau, Director, Ministerial Correspondence 
Secretariat, for the reply letter dated April 12, 2005. I made that letter 
publicly available so more Canadians may read the government response: 
http://www.digital-copyright.ca/discuss/4734

   As a citizen very involved in the copyright revision process since the 
summer of 2001, dedicating much of my free time as well as time I would 
otherwise be paid, I found the form-letter frustrating. I am intimately 
aware of the current process, and have participated (or attempted to) in 
each of the consultations, and replied to each of the reports in the last 
4 years.

   While I made every effort to be a witness before the Heritage committee, 
my written submission and requests to speak went unanswered. The Interim 
Report was not the result of extensive consultations, but the Heritage 
committee listening only to the extremely small subset of stakeholders who 
were incumbent stakeholders from old media industry associations and 
institutional users. Copyright can no longer be so narrowly understood, 
and consultations must include all those who are affected by it -- 
something that did not happen in the so-called "consultations" that lead 
up to the Interim report.

   All Canadians are stakeholders in development of new communications 
methods. The consultations did not include the users, follow-on creators, 
new-media creators, or anyone familiar with the technology that is driving 
new creativity and innovation. Only the legacy "mass media" content 
industries were invited.

   We are nearing 1500 signatures to our Petition for Users' Rights that 
demands, among other things, that users are recognized as interested 
parties and are meaningfully consulted about proposed changes to the 
Copyright Act.

   I was quite offended by remarks made to reporters by the Minister after 
the Junos, as reported by Canadian Press on April 4, 2005

     "We'll also be addressing the peer-to-peer issue," Frulla said. ``It
     will give the tools to companies and authors to sue."

     "Everything starts with the children," she said. "They're the ones who
     say `recycle' and `don't smoke.' The Internet is their world."

     CBC: Frulla promotes tougher copyright laws 
http://www.cbc.ca/story/arts/national/2005/04/04/Arts/frullawinnipeg050404.html

   Canadian law already provides more than adequate tools for companies and 
authors to sue copyright infringers. As one of many Canadians who fully 
read the case handed down by the Honourable Mr. Justice von Finckenstein 
(Citation: 2004 FC 488), I realize that BMG did not receive the court 
order they requested due to procedural problems. There was inadequate 
evidence that copyright had been infringed, or even that the files being 
uploaded (sent, distributed, "shared") were owned by BMG. This is evidence 
that could easily have been collected such as actually listening to the 
music to determine its origins.

   The Charter of Rights and our privacy legislation provides the average 
Canadian with better protection of their rights than in other western 
countries. This may hold those who wish to use to courts to enforce their 
own economic interests to a higher standard than will be found in other 
places. This in no way prevents copyright holders from enforcing their 
rights if they wish, but does control the use of fear, uncertainty and 
doubt from being used to intimidate Canadians who are acting within the 
law.

   This can not be understated: had BMG provided adequate evidenced of 
wrongdoing, the court order to disclose the names of the alleged copyright 
infringers would have been granted. Due to the excessive statutory damages 
offered by our Copyright act, it is unlikely this case would have went to 
trial, with accused being forced to settle out of court even if what they 
were doing was perfectly legal. The issues with this case before 
Honourable Mr. Justice von Finckenstein had little to do with copyright, 
and the radical backward-looking changes to the copyright act being 
proposed would not have made the situation more clear.

   The case also confirmed an interpretation I made back in February 2003 
(reference http://weblog.flora.ca/article.php3?story_id=361 ) that 
downloading (receiving) music for personal use is not an infringement 
under the Private Copying Regime (PART VIII of the Copyright Act).

   If Canadians now incorrectly believe that our Copyright act makes 
unauthorized distribution of music legal in Canada, the Minister is partly 
responsible for this because of her public misrepresentation of the facts. 
She should be held accountable for her part in any harm that may come to 
the industry or Canadians as a result of this misinformation. If the 
Heritage Minister is not adequately informed on this area of policy, how 
can the average Canadian be expected to be?

   I must conclude that either the Minister is not aware of the facts of 
the case, or that she wishes to amend the copyright act such that the 
legacy recording industry would not need need to provide evidence of 
wrongdoing in order to launch lawsuits against children. Is this really 
the message that the Minister and the Liberals wish to go to elections 
with?

   I asked this question in a recent letter to Carolyn Bennett, suggesting 
that these words from Heritage Minister Frulla upset me more than Gomery 
inquiry. http://www.digital-copyright.ca/node/view/795


   In the definitions section (section 2) of the Copyright Act it defines 
the Minister as follows:

     "Minister", except in section 44.1, means the Minister of Industry;

(Section 44.1 speaks of the Minister of National Revenue.)

   I believe it is past time that this important technology policy were 
appropriately managed by the Minister of Industry, the department of 
Industry, and Industry Committee in parliament.

   The last 3 Liberal Ministers of Heritage have demonstrated a very 
antiquated concept of Copyright law as being a compromise between 
old-media intermediaries such as publishers (who theoretically represent 
creators) and old-media institutional users (Libraries and educational 
institutions,who theoretically represent audiences).  In our community the 
term "Heritage" has become synonymous with "antiquated".

   With new digital media comes technological support for a full spectrum 
of methods of creation, distribution and funding of creativity. While 
Industry Canada has the required economists in various bureaus of the 
department to adequately analyze this transformative change in the 
marketplace, Heritage Canada has ill-equipped to understand or even 
acknowledge the change.


Yours sincerely,

Russell McOrmond
Ottawa, Ontario, Canada
Webmaster for http://digital-copyright.ca
Full contact information: http://www.flora.ca/#contact

C.C.: The Honourable David Emerson, P.C., M.P.
Mr. David McGuinty, M.P.
Mr. Charlie Angus, M.P.
Mr. Brian Masse, M.P.
Mr. Paul Crête, M.P.
Mr. Maka Kotto, M.P.
Ms. Bev Oda, M.P.
Mr. James Rajotte, M.P.

-- 
  Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
  Boycott legacy Motion Picture and Recording Industries from April 24-30
           http://www.digital-copyright.ca/node/view/786
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