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R 311349Z MAR 07
FM AMCONSUL MONTREAL
TO RUEHC/SECSTATE WASHDC 0527
INFO RUCNCAN/ALCAN COLLECTIVE
RUCPDOC/DEPT OF COMMERCE WASHDC

UNCLAS SECTION 01 OF 03 MONTREAL 000150 
 
SIPDIS 
 
 
SENSITIVE 
 
SIPDIS 
 
 
SECSTATE FOR WHA/CAN, WHA/PD, DS/IP/WHA, EB/TPP/IPE 
State please pass to USTR for Sullivan, Melle, and Garde 
 
E.O. 12958: N/A 
TAGS: ECON ETRD KIPR CA
SUBJECT:  McGill Conference Offers Perspectives on New Media and 
Copyright Reform 
 
 
This message is Sensitive but Unclassified 
 
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Summary 
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¶1. (SBU) A conference on music and copyright issues entitled 
"Musical Myopia, Digital Dystopia: New Media and Copyright Reform," 
hosted by McGill University on March 23, brought together a number 
of experts in the field of digital rights management and musical 
technology to discuss the current challenges facing the music 
industry and the evolving role of intellectual property rights in 
new media.  The conference featured participation from Ann 
Chaitovitz, Attorney-Advisor at the U.S. Patent and Trademark 
Office, Bruce Lehman, former Commissioner of Patents and Trademarks 
in the Clinton Administration, and Michael Geist, a law professor at 
the University of Ottawa, among others.  While Geist's remarks about 
the adequacy of current Canadian legislation were predictable (Geist 
is an oft-quoted critic of the Special 301 report and other efforts 
to encourage Canada to adopt stronger IPR protection), Lehman's 
comments about the inefficacy of the Digital Media Copyright Act 
came as a surprise.  Although movie piracy (specifically camcording) 
in Montreal has received widespread press coverage in recent months, 
the issue of copyright protection for music (and technical 
protection measures in general) also remains a hot issue. Ms. 
Chaitovitz underscored how U.S. copyright law evolved to incorporate 
new media, explained the difference between rights limitations and 
access limitations within U.S. copyright law, and offered examples 
of how consumers have benefited from copyright protection by being 
able to pay more selectively for the services they want.  The points 
of view expressed by some participants have been used to justify GOC 
resistance to changing its copyright legislation and ratifying the 
WIPO Internet Treaties.  Some conference participants stated that 
copyright issues remain oversimplified by policymakers and 
misunderstood by the general public.  Post will continue to engage 
stakeholders in multiple sectors about the importance of 
implementing the WIPO internet treaties. 
 
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Canada's IPR "Public Intellectual" rails against anti-circumvention 
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¶2. (SBU) Geist, regarded by some academics as Canada's "public 
intellectual" on intellectual property issues and internet law, has 
published a number of editorials casting doubt on figures related to 
Canada's share of global film piracy. Geist maintains a blog in 
which he tackles issues related to new technologies and their legal 
ramifications and intellectual property issues more generally and 
has argued against the inclusion of anti-circumvention provisions in 
Canadian law (see http://www.michaelgeist.ca/index.php).  Such 
provisions, which exist in U.S. law, would ban the manufacture of 
devices that could be used to "pick digital locks."  Geist made a 
"case against Canadian Anti-Circumvention legislation," contending 
that anti-circumvention devices are harmful, run counter to the free 
market, are ineffective, and are unnecessary. 
 
¶3. (SBU) Geist outlined the changes occurring in the world of 
digital media on the internet, such as the presence of 70 million 
blogs, the development of services such as myspace, youtube, 
webcasts and podcasts that all facilitated audio and video file 
sharing, to conclude that "those involved in WIPO guessed wrong" 
about the need to control digital copying.  Geist stated that 
anti-circumvention devices could be harmful to the software and 
materials they were created to protect.  He also said that many 
Canadian artists do not want to see legislation enacted that would 
facilitate lawsuits against fans. Geist pointed to the creation of 
the Canadian Music Creators' Coalition, which claims to be a 
"growing coalition of Canadian music creators who share the common 
goal of having our voices heard about the laws and policies that 
affect our livelihoods," including artists such as Sarah McLaughlan, 
Avril Lavigne, and the Barenaked Ladies, as evidence of this trend. 
Some music groups, such as Broken Social Scene, have credited new 
technology and file sharing mechanisms for facilitating their 
popularity. 
 
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An architect of the DMCA proclaims a "post-copyright" era 
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¶4. (SBU) Mr. Lehman, one of the self-proclaimed "architects" of the 
Digital Millennium Copyright Act (DMCA) as well as the WIPO Internet 
treaties, stated that the music world has entered the 
"post-copyright era" and that existing copyright mechanisms had 
failed to respond to the evolution of the internet.  Mr. Lehman's 
comments could be interpreted narrowly to mean that the "copyright" 
 
MONTREAL 00000150  002 OF 003 
 
 
era has come to a close because the genie of digital music is 
already out of the copyright bottle.  Lehman went on to say that 
Canada should not be constrained by what was done in the United 
States and blasted the U.S. government process.  He said that under 
U.S. law, individuals are held responsible for file-sharing 
activities because the big corporations, like the internet service 
providers (ISPs), lobbied to exempt themselves.  He suggested that 
Canada take a new approach that allegedly could not have been 
accomplished in the U.S. because of powerful interests, and urging 
Canada to play an outside role as a cauldron of creativity and 
culture. 
 
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Defending the DMCA 
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¶5. (SBU) Ms. Chaitovitz stressed the need for the prohibition in 
manufacture and trafficking of circumvention devices, and noted that 
such prohibition leads to more effective and less intrusive 
enforcement of copyright infringement.  With regard to technological 
protection measures, Ms. Chaitovitz said that U.S. law does not 
require creators to install such devices in their products, and that 
individual enterprises decide if they wish to protect their material 
in this way.  She also made the distinction between rights 
limitations and access limitations, with rights controls limiting 
what consumers can do with purchased materials and access controls 
determining which consumers can gain access to a particular product 
or service through subscription services.  Ms. Chaitovitz noted that 
many new digital business models offering consumers more choice and 
flexibility (such as music subscription services or Netflix offering 
access to on-demand-streaming movies) rely on access controls.  She 
stated that content owners will be more willing to provide such 
services only if they are confident that their rights will be 
protected.  Ms. Chaitovitz stressed aspects of U.S. copyright 
protections work well, and how such protections have benefited 
consumers, artists, and content providers alike. 
 
¶6. (SBU) Charles Morgan, a lawyer for McCarthy Tetrault, made the 
case for Canada to ratify the WIPO internet treaties and bring 
itself up to the "international standard" for copyright protection. 
He noted that the massive technological changes the world has 
undergone had brought about an "imbalance in traditional copyright" 
and that copyright protection is necessary in order to ensure those 
who create works are paid for their efforts.  Canada, he said, 
should "act in a manner consistent with all of its trading 
partners," including the U.S. and the EU, by amending its laws to 
conform with WIPO requirements. Morgan also noted that Bill C-60, 
which the GOC had proposed but not adopted in 2005 under the Liberal 
government, would have ranked among the developed world world's 
weakest WIPO-implementing legislation.  Geist responded to Morgan's 
remarks by noting that Canadians "must be very clear about what 
commitments we took on by signing [WIPO]-none." 
 
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Copyright and the GOC 
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¶7.  (SBU) Sunny Handa, a conference moderator and McGill Law 
Professor noted that the GOC "has not put forward a view on 
Intellectual Property" and that this was "unfortunate."  He 
speculated that the issue of copyright, and IP in general, is "so 
complex, no one wants to touch it in any serious way."  Charlie 
Angus, a Member of Parliament for James Bay and NDP Heritage critic, 
echoed this sentiment, acknowledging that "IP is complex, and 
politicians don't like complexity."  Angus, who has a background as 
a band member and advocates musicians' rights, stated that the 
challenge for Canadian musicians was to "tap into the digital age" 
and "get our cultural goods onto platforms where they'll be seen." 
He said musicians need to find a business model that would protect 
Canadian culture while taking advantage of new media to promote 
Canadian artists worldwide.  Angus also mentioned the need for in 
Canada for legislation that "is applicable, and works," and that 
would strike an appropriate balance between industry and consumer 
interests. 
 
¶8. (SBU) Sandy Pearlman, a prolific music producer, creator and 
songwriter who has produced works for Blue Oyster Cult and the 
Clash, among others, gave an overview of the ways in which the 
internet has revolutionized access to music and the challenges to 
copyright.  "For the first time," he said, "there is infinite access 
to infinite music for a quarter of the world's population." 
Currently, legal, monetized music downloads account for only a 
fraction of overall internet traffic.  Pearlman stated that five 
cents is the price at which people would rather pay for a download 
 
MONTREAL 00000150  003 OF 003 
 
 
rather than go through the trouble of stealing it.  He has advocated 
a five cent download model, combined with a comprehensive search and 
recommendation engine, in which the sheer volume of music people 
would be willing to download at this price point would generate 
significant revenue for the music industry that is currently being 
lost to illegal downloads.  Pearlman stated that the music industry 
now finds itself in its current state because music labels did not 
position themselves to capitalize on new technologies when they had 
the chance.  He predicted that the music industry globally is 
teetering on the brink of a sea change that would bring nearly 
universal access to all music, at an extremely low cost, and that 
this change could also be beneficial for artists and music 
producers. 
 
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Comment 
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¶9. (SBU) With unlicensed movie uploads and music file-sharing 
becoming increasingly popular, and legitimate, licensed downloads of 
music and movies accounting for an extremely small percentage of all 
internet traffic, the music and entertainment industry worldwide is 
grappling with the best way to generate revenue with new media and 
platforms.  Efforts to encourage the GOC to ratify its WIPO 
obligations have been hindered by the sheer complexity of copyright 
law and IP-related issues, and perceptions by consumers and artists 
that technological protection measures might be harmful.  Post will 
continue to engage in outreach with Canadian stakeholders across a 
wide range of sectors to emphasize that copyright protection 
benefits Canadian artists, that technological protection measures 
can provide more choice for consumers, and that the prohibition of 
circumvention devices produces less intrusive and more effective 
enforcement of copyright.