Mark Akrigg

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Submission to the consultation on a modern copyright framework for online intermediaries

30 May 2021

A submission by:
Dr Mark Akrigg
Founder, Project Gutenberg Canada

Summary of recommendations

  • Ensure that a website can never be shut down except by a direct judicial order issued as the result of a public court hearing. These orders should not be made easier to obtain than at present.
  • Withdraw Bill C-10.  It does no good, and a great deal of harm.
  • Repeal CUSMA's toxic copyright extensions, which are of dubious legality. No truly sovereign country would allow any foreign power to use coercion to seize control of its domestic legislation. Canada shouldn't either.

[Before starting, I would like to note that the chief barrier to an orderly and equitable copyright system in Canada is the Government of Canada itself, who have been unduly influenced by corporate interests, and who under the pretext of a "trade agreement" (CUSMA) have now allowed a foreign power and its autocrat to impose copyright extensions not on their country, but on ours, against the will of Canadians. There is no reason for Canadians to think that we have any influence over the copyright laws that govern us, although it is a nice gesture for the government to hold this consultation, empty though it may be. Still, C-10 must obviously be scrapped immediately and permanently, which would make this consultation superfluous.]

It is a pleasure to accept the Government of Canada's invitation to contribute to the Consultation on a Modern Copyright Framework for Online Intermediaries.

The opinions in this submission are my own: I am making this submission as an individual.

My name is Mark Akrigg, I live in Toronto, and I am the founder of Project Gutenberg Canada, a website offering free digital editions of books in the Canadian public domain.

http://gutenberg.ca/index.html

The site was an immediate and lasting success. I am particularly proud of testimonials I have received from Canadians who live in remote locations thanking me for what Project Gutenberg Canada has done for them. Naturally our services have become that much more important during the COVID-19 lockdowns, when most libraries have been closed. We do not charge for our ebooks, and never will.

The Framework is of great importance to Project Gutenberg Canada, since our existence depends on a stable copyright environment which allows the citizens of Canada

  • full access to the Canadian public domain
  • without interference from foreign governments and large corporations
  • with the assurance that our government is on the side of Canadian citizens, and will vigorously defend our interests.

My basic recommendation:

Ensure that a website can never be shut down except by a direct judicial order issued as the result of a public court hearing.  These orders should not be made easier to obtain than at present.

Project Gutenberg Canada was established in 2007, and in the fourteen years of its existence we have never infringed Canadian copyright law, even inadvertently.  We are very proud of this record.  However, we have a continuing concern that a rogue company or individual may attempt to harass us through baseless legal claims, and could well be able to impose their will simply because they have more lawyers and more influence with the government.  It is very important that websites not be subject to arbitrary shutdown on the unsupported word of an individual or corporation.  Website takedowns should be available only through court orders, and these orders should not be issued without very solid grounds in circumstances where there can be no doubt whatsoever that material infringement has occurred.

But the government’s current proposal is heavily weighted in favour of those claiming to hold copyright.  I note with particular concern the statement in section 4.4.1 that website-blocking orders “be available in at least certain cases without the need first to obtain judgment directly against the alleged infringer or include the alleged infringer as a party to the proceedings.”

In other words, Project Gutenberg Canada’s website could be taken down simply because the plaintiff failed to contact us, and managed to obtain an order against our website hosting company.  This is obviously a gross violation of Canada’s constitutionally guaranteed “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.  This fundamental freedom cannot be restricted for the administrative convenience of governments, domestic and foreign, and of large corporations.

At Project Gutenberg Canada we make a special effort to promote Canadian authors, and we are proud of our Canadian catalogue.  Canadian content quotas for a non-commercial archival site such as Project Gutenberg Canada would be utterly inappropriate.

Additional recommendations:

(2) Withdraw Bill C-10.  It does no good, and a great deal of harm.

Bill C-10 is controversial, and for some very good reasons.  The Hon. Erin O’Toole, Leader of the Opposition, recently stated that if his party wins the next election, he will repeal Bill C-10 in its entirety.  Sometimes governments are wise to pay attention to what opposition parties suggest.  This is one of those times.

First, let me note that Bill C-10 seeks to amend the Broadcasting Act.  But the Broadcasting Act, as its title indicates, was meant to apply to radio and television broadcasting: in other words, to a telecommunications universe where capacity was limited, and content was provided by large organizations.  That world is gone forever.  And Bill C-10 seems to be a desperate attempt by large media companies who were very happy with the cozy relationship between Canada’s media companies and their government.  They are trying to turn back the clock.

Of course, Canadians had opinions that were quite different from those of the media companies.  When large-scale cable television replaced the previous small-scale local cable operations in Canada, suddenly prices exploded skywards, and the new cable channels were a shabby collection of second-rate services, freighted with commercials.  And the “Canadian” productions didn’t seem very Canadian – often knockoffs of American originals, and strangely generic.

And there’s the disgraceful practice of simulcasting, whereby cable companies are required to show the Canadian signal if a program is simultaneously available from the US and Canada.  A better way of suppressing original Canadian productions could not be devised: instead of creating attractive original programming, Canadian networks opt to buy cheaper American content: a direct attack on the Canadian creative sector.

The internet has ended Canada’s media monopoly

What a relief the internet has been!  As an example, consider the much maligned Netflix.  The old companies, who had little acquaintance with real competition, shielded as they were by decades of government favouritism, simply didn’t know how to react.

But Canadians did.  We recognized quality and value when we saw it, and subscribed by the millions to Netflix and Amazon Prime.

And how can Netflix be considered a danger to Canadian production?  They do a vast number of productions in Canada, and have made it possible for certain CBC productions to be offered worldwide.  How is this a problem?

And, of course, they offer a true window on the world, unlike the old cable systems.  If I want to see productions from Spain, Australia, Nigeria, South Korea, Russia, or India, there they are!  With no commercials.

For Canadians, the adversary is not the new streaming services.  It’s the old monopolies, trying to extend their chokehold on what Canadians can watch or listen to.  Canadians do not want the internet to become a zombie recreation of cable television, controlled by an unholy alliance of Canada’s old telephone companies.

“Regulating” social media

The government had claimed early in the C-10 discussion that user-generated content (social media postings and so on) would not be affected by Bill C-10.  But the surprise April 23 removal from the bill of section 4.1 means that user-generated content will in fact fall under Bill C-10.  To quote Professor Michael Geist, “The government had maintained that it had no interest in regulating user generated content, but the policy reversal meant that millions of video, podcasts, and the other audiovisual content on those popular services would be treated as “programs” under Canadian law and subject to some of the same rules as those previously reserved for programming on conventional broadcast services.”

https://www.michaelgeist.ca/2021/05/free-speech-under-threat-the-real-consequences-of-steven-guilbeaults-battle-with-the-web-giants/

For an illustration of why this matters, we have no further to look than India, the world’s largest representative democracy.  In some ways, it is a purer democracy than Canada, since it is famously jealous of its independence and of its non-aligned status, and, unlike Canada, certainly has never allowed a foreign power to write its domestic legislation, such as its copyright act.

But on May 22 an alarming headline appeared in The Guardian: “India orders removal of content referring to ‘Indian variant’”, and the accompanying article reported that “India’s government has ordered social media platforms to take down content that refers to the “Indian variant” of the coronavirus.”

https://www.theguardian.com/world/2021/may/22/india-orders-removal-of-content-referring-to-indian-variant

In view of the continuing unresolved scandal surrounding CUSMA and the government shenanigans surrounding Bill C-10, it is completely out of the question for the government to seek this kind of power over the public and private communications of Canadians.  The Charter must be allowed to prevail without hindrance, in particular its “Fundamental freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.  In other words, Bill C-10 must be withdrawn immediately and permanently.

(3) Repeal CUSMA's toxic copyright extensions, which are of dubious legality. No truly sovereign country would allow any foreign power to use coercion to seize control of its domestic legislation.  Canada shouldn't either.

I regret that CUSMA's copyright extensions will prevent Project Gutenberg Canada from making available many out of print Canadian titles which otherwise would be coming out of copyright in the next twenty years.  This is a loss for all Canadians.

CUSMA in its current form is clearly coercive, violating both domestic and international law, not just in the way it seizes control of Canadian copyright law, but in certain other areas, such as exports to third countries.  By choosing to obey a foreign autocrat rather than serve the interests of Canadians, the government started a chain of illegitimacy which is now propagating itself, for example in Bill C-10. It has also clearly marked Canada as an impaired democracy, subject to a foreign power.

This situation must be rectified. The government should immediately start the process of modifying CUSMA to remove the overreach and the illegalities added because of coercion applied by a foreign autocrat now removed from power.

Dr Mark Akrigg
Founder, Project Gutenberg Canada
http://gutenberg.ca/index.html