This record is a partial extract of the original cable. The full text of the original cable is not available.

311946Z Oct 05

UNCLAS SECTION 01 OF 02 OTTAWA 003244 
 
SIPDIS 
 
SENSITIVE 
 
DEPT PASS USTR FOR CHANDLER AND CHOE-GROVES 
 
E.O. 12958: N/A 
TAGS: ETRD KIPR CA
SUBJECT: EVOLUTION OF INDUSTRY RESPONSE TO CANADA'S DRAFT 
COPYRIGHT AMENDMENT LEGISLATION 
 
REF: A. OTTAWA 2970 (CANADIAN STAKEHOLDERS' CONCERNS ON 
 
        COPYRIGHT AMENDMENT) 
     ¶B. OTTAWA 2833 (DEMARCHE ON SPECIAL 301 OUT OF 
        CYCLE REVIEW) 
 
¶1. (SBU) Summary:  Canadian rightsholders seem to be 
positioning themselves to accept notice and notice as a step 
in the negotiations surrounding Canada's proposed amendment 
to the Copyright Act.  Internet service provider (ISP) 
liability waivers in the draft text have rightsholders 
fearing that Canada may again become an IPR "wild west" with 
legal filesharing.  Rightsholder industries are also united 
in their despair over the weakness of remedies against 
technological protection measures (TPMs).  Proponents of weak 
or nonexistent copyright continue to publish and lobby 
Parliament, where a special committee to review the proposed 
legislation is expected to be formed by mid-November. End 
summary. 
 
¶2. (SBU) Although most Canadian rightsholder industry 
associations still publicly hope for a notice and takedown 
regime, industry reps have privately told econoff that they 
are preparing to accept the currently-proposed notice and 
notice system in the course of negotiations with GOC.  In 
fact, some industry associations plan to use the anticipated 
USG insistence on notice and takedown as a chance to play 
good cop to our bad cop, and they will present their 
acceptance of notice and notice as a signal to the GOC that 
they are willing to be "more reasonable than the Americans". 
 
¶3. (SBU) Industry representatives are newly concerned that 
the wording of the internet service provider (ISP) liability 
waiver in the proposed amendments may be interpreted to again 
make peer-to-peer filesharing legal in Canada, an eventuality 
that industry representatives on either side of the border 
will see as disastrous.  Section 31.1(1) of the draft 
amendment states, "A person who, in providing services 
related to the operation of the Internet or other digital 
network, provides any means for the telecommunication of a 
work or other subject-matter or a reproduction of it through 
that network does not, solely by reason of providing those 
means, infringe copyright..." and section 31.1(2) adds that 
"a person...who performs any other acts related to the 
telecommunication that render it more efficient...does not, 
by virtue of those acts alone, infringe copyright..." 
Industry representatives fear that peer-to-peer filesharing 
services could be argued to be a "means for the 
telecommunication" and an act to "render it more efficient" 
and therefore could be exempted from liability under these 
sections. 
 
¶4. (SBU) The question of technological protection measure 
(TPM) circumvention continues to focus on two concerns: the 
need to prove intent to infringe in order for circumvention 
of TPMs to be considered illegal, and the fact that the bill 
as drafted contains no language making the trafficking of 
circumvention "tools" (such as video game mod chips or 
DVD-hacking software) illegal.  Both of these concerns have 
been prevalent in industry commentary since the draft text 
was first tabled (see reftels).  Some commentators have 
suggested that "trafficking in tools" could be somehow folded 
into or added to the section that provides legal remedies 
against a person who "offers or provides a service to 
circumvent" (section 34.02(2)). 
 
¶5. (SBU) Meanwhile, in the midst of this chorus of industry 
displeasure at the content of C-60, a lone happy ISP 
representative presented a very upbeat reaction at last 
week's C-60 conference in Toronto.  Seemingly, ISPs have no 
complaint with the text of C-60 as drafted--in fact, this 
representative's only substantive input was to ask that 
rightsholders be required to pay ISPs to forward and retain 
the notices of infringement under the notice and notice 
scheme (as currently laid out in section 40.2(2) of C-60.) 
The fact that ISPs are the sole enthusiastic and 
fully-satisfied stakeholder in the process highlights the 
bargaining power of the ISPs in this process.  They have been 
given a bill which exempts them from any liability for 
infringing content on their members' sites and does not 
require them to take down such infringing material unless 
there is a court order; in addition, they will potentially be 
able to charge stakeholders for the notice process itself. 
 
¶6. (SBU) "Copyleft" academics who argue against copyright in 
general continue to receive significant press time and seem 
to be increasing their lobbying efforts directed at 
Parliament.  University of Ottawa professor and columnist 
Michael Geist has published a collection of papers claiming 
to put the reform proposals into context ("In the Public 
Interest The Future of Canadian Copyright Law" available at 
www.michaelgeist.ca for C$50 or for free download).  His 
University of Ottawa colleague Ian Kerr addressed a breakfast 
in the Parliamentary dining room last week on the subject of 
C-60.  Dr. Kerr is another "information wants to be free" 
advocate, and he focused on what he sees as a need for 
protection against TPMs, since in his opinion they can too 
easily become surveillance devices that invade the privacy of 
users. (Comment: an econ staffer was present in the audience 
and attempted to provide a balancing view, pointing out that 
Canada's existing laws do not put excessive power in the 
hands of rightsholders.  End comment.) 
 
¶7. (SBU) We expect the bill to be put before an as-yet 
unformed special committee, which should be assembled by the 
middle of November.  Parliamentary insiders suggest that the 
special committee may make the process faster, but few 
observers expect that the bill will pass before Parliament 
faces another election which is expected by Spring 2006 
(comment: faced with such a flawed document, some industry 
representatives are stuck hoping that the legislation, for 
which they pushed so long and hard, will die in committee. 
See ref A for details.) 
 
Visit Canada's Classified Web Site at 
http://www.state.sgov.gov/p/wha/ottawa 
 
WILKINS