Dr. Ficsor takes Geist back to school

Whenever Michael Geist starts in about “separating fiction from fact”, you know that you better fasten your seatbelt because the truth is about to have a bumpy flight.  The Canadian Parliament is considering major changes to its copyright law at the moment in the form of a new copyright bill (“Bill C-32”).  The new law isn’t brought by the stork, of course—it is an ongoing effort since 1996 in Canada to reform the country’s copyright laws and bring Canada in line with its international treaty obligations. 

Given Geist’s self-appointed role as Canada’s media source for intellectual property (just ask any Canadian journalist who failed to call him for a quote in any article on IP), it should not be surprising that he’s riding to the hunt in full habit over Bill C-32.  But he is once again equivocating on the law and facts to reach unsupportable conclusions regarding the import of the anticircumvention, DRM and TPM provisions of the World Intellectual Property Organization (“WIPO”)  Internet Treaties (digital rights management and technological prevention measures, often referred to by the acronyms “DRM” and “TPM” respectively)—and Canada’s treaty obligations in the drafting of Bill C-32. 

Why should Americans care what happens in Canada?

Why should Americans care about Geist and what happens north of the border?  A few reasons.  First and foremost, Geist has inserted himself into the middle of the international trade agenda on intellectual property.  He is actively doing his best to interfere with Canada’s own international IP agenda as well as that of the US and other US trading partners.  Geist also has close ties to the Electronic Frontier Foundation, Lawrence Lessig and is on the Information Program Sub-Board of the Open Society Institute (which in turn gives project funding grants to Public Knowledge, among many others). I’ll quote later from one of the Information Program’s publications.  See also “Circular Awards 2009: Now with added Astroturf” by Andrew Orlowski.

No friend of artists, in other words—just ask ACTRA’s National Executive Director.

Despite Geist’s jingo about Canadian copyright law needs to be a made in Canada solution for Canadians, there are certain aspects of any national law that is necessarily international in scope—particularly anything digital or that involves the Internet.  It is popular cant amongst the digerati that if they can tie down a “temporary autonomous zone” (such as Sealand), or turn a country into a haven for sites like Wikileaks (such as Iceland), then sites operating in these geographical areas can connect to the Internet and get away with it. 

So imagine what would happen if Canada (the long-standing top US trading partner) suddenly passed IP laws that applied to US intellectual property but failed to recognize the international system of IP rights as well as our national rights (that often benefit Canadians, too).  This is why many countries sign these things called treaties, which are becoming increasingly important to the networked world—particularly given how closely intertwined IP rights are with commerce.  Treaties are international agreements that countries sign up to that keep everyone’s expectations in line and usually give some form of remedy if someone doesn’t play by the rules (see the Fairness in Music Licensing Act).  One of the major international assets of the US is our intellectual property, so any threat to the viability of our IP should be viewed critically.

 Modchips and Consultations

 So who else do we know in Canada who is obsessed with stopping the anticircumvention provisions of Bill C-32? 

Recall that Industry Canada mounted a good faith effort at engaging the Canadian public in consultations regarding a new copyright law that eventually became Bill C-32.  In the middle of this process, a shadowy group loomed out of the darkness with a form letter to be used to contact Industry Canada that summarized practically every point that it seems that a Geist would like to see in new legislation—a curious coincidence.  Geist did his best to promote this letter in places that seemed unlikely to attract many Canadians as is well documented by Canadian attorney Richard Owens on the Osgoode Hall intellectual property blog (see “Noises Heard: Canada’s Recent Online Consultation Process–Teachings and Cautions”).

The form letter posted by the Canadian Coalition for Electronic Rights has one section that is particularly relevant: “The concept of technological neutrality is paramount when considering changes to Canada’s copyright regime….The Government must not integrate protection for specific technologies or business models into any amendments to the Copyright Act (e.g. all-encompassing prohibition of circumvention devices and technologies). Any new legislation should be technologically-neutral to maintain flexibility into the future.”

You mean…like legalizing modchips?  That is—the principle business of the extraordinarily eloquent authors of the form letter, the CCER?  That laid out points of legal scholarship that coincidentally jibe nearly exactly with Geist’s argument against the anticircumention rules in Bill C-32?  Why?  So that Canada would become a temporary autonomous zone where “security researchers” could legally sell the tools to crack DRM for “personal” copies that would then be made available on the borderless Internet?  Wasn’t that the point of the anticircumvention rules of the WIPO Internet Treaties?

Dr. Ficsor Takes Geist to School about the WIPO Internet Treaties

WIPO is a specialized agency of the United Nations headquartered in Geneva, Switzerland.  184 countries are members.  WIPO is charged with developing and maintaining the legal structure for the international intellectual property system. 

The way this works is that WIPO passes treaties that are agreed to by the member states—including Canada in the case of the WIPO Internet Treaties. (The “WIPO Internet Treaties” refer to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).) 

Each member state that agrees to the treaties has to then pass implementing legislation in their own country that incorporates the terms of the treaty in local law.  That’s because the UN can’t pass laws that have direct national effect–countries have to pass those laws.  That’s what the DMCA was for the US, which passed in 1998—implementing legislation.

Canada has not passed implementing legislation for 14 years—which is a whole other story, but you can see that it does tend to make Canada stand out from the rest of the class.  It is this point though that is crucial to Geist’s and the CCER’s attempt to get around the anticircumvention rules of the treaty—they must define and interpret them away because the plain language of the treaties unambiguously is opposite to their positions.  This has nothing to do with Geist’s usual jingoism about the US trying to impose its will on others.  The anticircumvention rules are in the treaty that Canada has already agreed to.

Geist seems to believe—and it seems that it really is a “belief” for Geist and an article of faith for his followers—that Canada is free to disregard the inconvenient parts of the WIPO Internet Treaties in fashioning its implementing legislation. 

Geist essentially takes the position that the Canadian Parliament can give the CCER its vigorish without violating the WIPO Internet Treaties—i.e., Canada can ignore the DRM, TPM and anticircumvention requirements that all of Canada’s major trading partners signed up to when they passed implementing legislation in their own countries.  This position may make people whistle folk tunes at the Open Society Institute, but it doesn’t pass the laugh test.

But the guy who is not laughing is Dr. Mihály Ficsor.  According to WIPO, Ficsor “is recognized as having played the most decisive role in the preparation, negotiation and adoption of the so-called ‘Internet treaties’: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).”  It is worth noting that the WCT was finalized in 1996 and the WPPT in 2000—when Michael Geist was still in law school.

Ficsor has written an extensive critique of Geist’s position that is posted on the IP blog at Geist’s alma mater which is well worth the read and is quite kindly in its schooling.  However, Ficsor’s reaction to Geist’s arguments can be summarized in a single word that Ficsor is too polite to use:  bollocks.  A brief excerpt from Ficsor:

“It seems that the vehemently debated issues in connection with the TPM provisions of Bill C-32 are the questions of (i) whether it is a treaty obligation to protect both access-control and copy-control TPMs; (ii) whether it is a treaty obligation to prohibit so-called “preparatory acts” (the manufacture and distribution of “protection-defeating devices,” etc.); and (iii) whether circumvention should only be prohibited when it is linked to infringement. Canada’s major trading partners have answered affirmatively the first two questions and negatively the third one. I submit, along with authoritative commentators, that – in view of the treaty provisions and their negotiation history – these are the correct answers. Prof. Geist’s views are just the contrary, and therefore he alleges that the TPM provisions of Bill C-32 are wrong….

It should be seen that, if it were allowed to eliminate these control mechanisms, the copyright system would collapse. This would be the case, since, if there were free access to copies in book shops, record shops, rental shops, etc., free entrance to cinemas, theaters and concert halls, etc., the creators, publishers and producers would not have income to recoup their investments and even their operational costs, because no licensees would be able to pay remuneration to them. Such unauthorized acts of access would not qualify as copyright infringements proper, but if there were no legal protection against them, they would undermine the exercise and exploitation of copyright and related right.”

Or said another way by Dick Greger Augustsson (a/k/a Rickard ”Rick” Falkvinge (trans. “Hawkwing”)), a fellow sophisticate of Geist:

“The mere fact that we have a political party [i.e., the Pirate Party] on the topic of [Access to Knowledge], which has been successful beyond everybody’s expectations (though yet without representation), shows that these indeed are high-order issues with general implications for the shape of society. I have elaborated somewhat on the fundamental questions above. Overall, the changes that are caused by the mass democratization of the published word go well beyond any discrete area. The events unfolding now will not just crumble today’s power structures, but put them in the kitchen blender and set it to ‘Disintegrate,’ happily leaning against the kitchen counter with one hand on the blender lid while leisurely whistling folk songs.”

From “Access to Knowledge in the Age of Intellectual Property” (Information Program of the Open Society Institute).

Canada needs to leave the anticircumvention language of Bill C-32 as is.

You should also read Geist’s piece that Ficsor critiques, “The Case for Flexibility in Implementing the WIPO Internet Treaties: An Examination of the Anti-Circumvention Requirements.”

But just one thing:

The article has DRM.