Are the words of the current Minister of Heritage what the Liberals want to go to election with?

The following letter was sent by Russell McOrmond to the Honourable Liza Frulla, Minister of Canadian Heritage, in reply to a letter received. It was also copied to the "discuss" forum.

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.