As MTP readers will know, we follow developments in copyright reform in other countries from time to time, but especially in Europe and most particularly in Canada given the proximity to the US border (not to mention that I lived there for a good chunk of time and played for many leading Canadian artists in the studio and on the road). Canada recently held parliamentary elections which produced a majority government for the first time in seven years. This means that the Prime Minister’s Conservative Party controls a majority of the seats in the Canadian Parliament and a minority party (the “NDP”) is the lead opposition party. This means that Stephen Harper continues as prime minister of Canada, but he has a lot more control over the legislative process than he’s had previously.
Unfortunately, even though there has been something of a post-election lull in the copyright reform effort in Canada, sleeping dogs don’t lie. Once again, there’s bad news from Canada, and once again, it involves Michael Geist. This time it concerns a submission that was made earlier this year by the Canadian Bar Association to the Canadian government on the last Canadian copyright modernization act (“Submission on Bill C-32”) that Geist refers to as “a nice job setting out the debate over Bill C-32.” He goes on to say that “I was once a member of the CBA’s Copyright Policy section but was not involved in the drafting of the Bill C-32 document.”
What is strange about that statement is that the CBA submission has many, many unattributed quotations – all from Geist. He shouldn’t be so modest about his contribution. Given the prominence of these unattributed quotations in the Submission, it seems like a real stretch to do anything other than start over with a blank page.
The Telltale Mistake
The first problem with the submission is that it is shot through with what can readily be seen as direct lifts from Geist’s writings and blogs—that are not attributed. As Geist might say, the concepts are “recycled.”
So how did this become apparent? While reading a piece by Geist about Canada’s last shot at copyright reform in 2007 (Bill-C 61), I noticed Geist’s inapt reference to the “Registrar of Copyrights” in the US. This is a common mistake for the uninitiated or for students. The correct title for the head of the U.S. Copyright Office is “Register of Copyrights”—Register, not Registrar. I thought nothing much about it, probably ghosted by a student or something because surely Mr. Geist knows better. Irritating, but it happens.
But then I was skimming the Canadian Bar Association’s submission and ran across this phrase again regarding anticircumvention: “The U.S. Registrar [sic] of Copyrights has included a specific exception that addresses this situation since 2000.” (Submission at p.13)
That rang a bell.
How likely is it that these two exact phrases occur randomly—each with the exact same mistake? A quick search for the phrase showed that it is not random at all—the exact phrase and uncorrected mistake appeared in several posts by Michael Geist. What was it doing in the CBA submission—without quotation marks or attribution? Could this statement be plagiarized? How did these statements make it into the CBA submission?
A closer look at the CBA submission revealed over a dozen different instances where the CBA submission restated previously published writings of Geist without attribution. At least a dozen or so that I saw. That’s an average of almost one every 2 pages.
Here are a couple examples. The first quotation is from the CBA submission with the language from Geist in italics, the second is the source from Geist with a link to Geist’s source materials.
The CBA Submission: “Digital Rights Management (DRM) can be used to limit or eliminate the use of technologies to read text aloud, thereby rendering it inaccessible for those with print disabilities. Proposed s. 41.16(1) provides an exception for those with a perceptual disability who circumvent for the sole purpose of making the copyrighted material perceptible. It thus suffers from the same shortcoming as the privacy exception, as does the similar exception in subsection (2) applying to a person who provides circumvention technical assistance to those with perceptual disabilities. The whole point of circumventing is to provide access to the content for those with perceptual disabilities. The content will obviously be in the clear since that is what is needed to provide the necessary access.” (at p. 11)
Geist: “DRM can be used to limit or eliminate the use of technologies to read text aloud, thereby rendering it inaccessible for a segment of the population.”
“However, the provision suffers from the same shortcoming as the privacy exception. […] the whole point of circumventing is to provide access to the content for those with perceptual disabilities. The content will obviously be in the clear since that is what is needed to provide the necessary access.”
The CBA Submission: “Bill C-32 leaves the issue of obstacles created by DRM to the preservation of digital materials virtually untouched, potentially impeding archives from preserving Canadian history in digital form. The Bill includes a limitation on archives’ liability for circumvention and lists archival interests as a potential factor for new exceptions, yet nothing ensures that digital archiving is not inhibited by the anti-circumvention provisions.” (at p.12)
And Geist: “Earlier this week, the U.S. Library of Congress issued a report on digital archiving in which it expressed concern about the obstacles created by DRM to the preservation of digital materials. This concern – which the Canadian government addressed in a narrow context for the Library and Archives Canada legal deposit program in 2006 – remains a major issues for archives across the country. Incredibly, Bill C-61 leaves the issue virtually untouched, potentially shutting out archives from preserving Canadian history in digital form. The bill includes a limitation on liability for archives for circumvention (Section 41.19) provides that archives that circumvent without awareness of a legal violation do not face financial damages) and lists archival interests as a potential factor for new exceptions, yet there is nothing to ensure that digital archiving is not locked out due to anti-circumvention legislation.”
This chart gives a dozen or so examples with page numbers and links—there is no substitute for the original, of course, and you should definitely read each post as originally published. There may well be more that I did not catch.
Was the CBA Submission Drafting Process Unreliable?
Not only does the submission include these many unattributed references to Geist, it also turns out that the CBA submission itself was the subject of considerable controversy among Canadian intellectual property lawyers. While calling itself a submission by the Canadian Bar Association which would imply it was the work product of the larger professional group, it turns out that the creation of the report was apparently the work product of an ad hoc committee assembled on criteria than have yet to be disclosed. The committee work product has been criticized by a group of Canadian lawyers who were afforded only a limited opportunity at best to comment on the substance of the submission.
Over 50 noted Canadian lawyers of various points of view challenged this ad hoc proceeding in a letter to the CBA IP Section executive that was widely circulated among interested Canadian lawyers:
“[G]iven that the CBA’s mandate is to reflect the views of lawyers across Canada, any CBA submission should reflect the views of the whole Canadian intellectual property bar, and account for all stakeholders…[W]e understand that the working group [who wrote the CBA submission] was established only after a prior copyright policy committee came to an impasse and was disbanded in April 2010. [T]he decision to replace the old committee with an ad hoc working group without providing the intellectual property bar or section members with meaningful notice or an opportunity to participate is alarming.”
“A False Impression of Consensus”
No one seems to know who was on the CBA’s ad hoc working group. According to the complaint letter:
“Despite the complexity of Bill C-32 and the lack of any visible prior notice, [the ad hoc committee] allow[ed] only nine working days for interested parties to deliver commentary on some of the most complicated provisions within Bill C-32, [the submission] gives no background as to the working group’s preliminary conclusions on these provisions, and provides no detail as to how such submissions will be received, considered, and incorporated into any final submissions. Given these inadequacies, we are concerned that the few substantive submissions provided to the working party by the…[comments] deadline will not further the intelligent appraisal of Bill C-32 by the CBA, and will not be reflective of the views of the broader intellectual property bar.”
This distinguished group of lawyers went on to make clearly stated requests of the Canadian Bar Association that the CBA disclose the membership of the ad hoc committee, provide full transparency into the submission and comment process, and give assurances that comments would be seriously considered so that a balanced view of the organization as a whole could be given to the Canadian government.
These requests were largely ignored, which necessitated a second letter by the lawyer group that was written to the head of the CBA calling upon him to take steps to avoid a “false impression of consensus” being foisted on the Canadian public, the Canadian Government, and eventually the IP community.
Was Geist Involved in the Submission?
It does seem a little strange that Geist was quoted extensively without attribution, yet he says he did not participate in the drafting of the CBA submission. More disturbingly, the document has been quoted by Geist in his blog to support positions that HE AUTHORED – without acknowledging his authorship of the passage he cites. For example, Mr. Geist tells us that “The Canadian Bar Association, which represents 37,000 lawyers, law professors, and students from across the country, has released an important submission on Bill C-32.” It sounds more to me like an example of what Mr. Geist describes as policy “recycling”.
In any event, a document rife with policy laundering and plagiarism is not worthy of the Canadian Bar Association. I would suggest that the proper response of the Bar Association was suggested by Geist himself in his response to the Conference Board of Canada’s
Digital Economy report: “Admitting an error is never easy, but I would submit that the Conference Board of Canada has compounded its mistake by standing by its report. In doing so, it has done little more than further undermine its credibility.”
It would appear that Mr. Geist has distanced himself from the process of drafting the submission, but not the submission itself. Yet it is the drafting by the ad hoc committee that requires apology.