Blayne Haggart's Orangespace

If there were any remaining doubts about the role that the United States has played in convincing Canada to change its position on how to implement the World Intellectual Property Organization Internet treaties, last week’s dump of the remaining (unredacted) Wikileaks cables pretty much puts them to rest. Michael Geist, as always, has a comprehensive rundown of some of the most interesting pieces of the puzzle, with links to the original cables.

These cables seem to confirm that the push to follow the U.S. position on technological protection measures came straight from the PMO, acquiring some degree of urgency along the way. Consider the different mandate letters for Maxime Bernier (shuffled out of Industry in August 2007) and his successor, Jim Prentice (mandate letters are the Prime Minister’s marching orders to his ministers).

Maxime Bernier’s (as recounted to me by his chief of staff and reported in my dissertation):

It is important that you and [Canadian Heritage] Minister [Bev] Oda proceed with work ensuring that our intellectual property regime is modernized and among the best in the world. Any delays on this file may put Canada’s international reputation at risk. In particular, I ask that you and your colleague focus on developing amendments to the Copyright Act that will bring the 1996 WIPO Internet treaties into force.

Meanwhile, here’s the sense of Prentice’s mandate letter, via the Wikileaks cable:

[Privy Council Office analyst Ailish] Johnson and other sources report that Jim Prentice, the newly-appointed Minister of Industry and Josee Verner, the newly-appointed Minister of Canadian Heritage were asked by the Prime Minister to introduce a copyright bill and implement the WIPO internet treaties before the end of the calendar year. (emphasis added)

So we know that the Conservative government acquiesced to U.S. pressure on TPMs, but that really just raises the question of why, and why on this issue?

The answer is not straightforward. It doesn’t seem to be a wholly partisan issue. If you compare the Conservatives’ copyright bills with the Liberals’ 2005 attempt to implement the treaties, you’ll find that while the Conservatives reversed the Liberals’ “minimalist” approach to TPM protection in favour of the United States’ “maximalist” approach, other parts of the Conservatives’ bills mirrored the Liberal approach, notably enshrining a “notice and notice” approach to ISP liability. And don’t forget: the United States and the content industries also lobbied against notice and notice.

The change doesn’t seem to have come from the bureaucracy. As Simon Doyle notes in his book on the 2005 debate, civil servants eventually came around to the view that the U.S. approach to TPMs was bad policy. I’m pretty sure the basic policy issues didn’t change at all between 2005 and 2006, when the Conservatives came to power.

So why the Conservative reversal on TPMs? I can only make informed guesses, but I think there are two main possibilities. (If anyone thinks I’m wrong, or missing something, please let me know.)

First, that the United States successfully linked copyright reform (an issue that Canada doesn’t really care that much about) to something that Canada does really care about, like cross-border trade and U.S. market access. Copyright was discussed by the two countries in the context of the 2007 Montebello summit, and Canadian officials tried to link copyright reform to regulatory reform, but the United States didn’t seem to be biting on that last one. I can’t tell from the Wikileaks documents or anything else I’ve come across whether a credible linkage was made.

That leaves us with an intriguing possibility, which is that the Conservatives saw dealing with TPM protection as an easy way to keep the Canada-U.S. relationship on an even keel. The key to this argument is remembering that in 2007, the Conservatives saw copyright as a technical, largely apolitical issue. Moreover, it was obviously clear to Prime Minister Stephen Harper that copyright was very, very important to the United States.

Canada already had (has) an informal notice-and-notice regime, as well as a politically connected and economically powerful telecommunications industry, so reopening that debate would cause no end of heartache. But there was no strong, organized constituency that would hurt the Conservatives at the polls. Following that logic, one can see the appeal of adopting the preferred U.S. policy. Particularly if one’s governing style is not overly concerned with a policy’s actual outcomes (see Brodie, Ian and the GST; the Insite supervised drug injection site; eliminating the mandatory long-form census; getting “tough” on pardons; building new prisons in the face of an ever-declining crime rate).

Of course, the intended introduction of the Conservatives’ first copyright bill in December 2007 just happened to spark the first successful social-media-based grassroots political protest movement in Canada, and arguably one of the first significant ones in the world (Obama’s grassroots campaign didn’t really take hold until 2008). And yet the government strategy to deal with this outpouring of concern was to focus on messaging, rather than on changing the fundamentals of their preferred policy option.

If I’m right, the Conservatives followed the U.S. lead on TPMs either because they wanted something else from the United States (in which case I’d love to know what we got in return so I can look at the cost-benefit of the decision). Alternately, they could believe, going against the view of their departments, that a maximalist approach to TPMs does make sense for Canada. Or they thought that copyright wasn’t an issue that mattered to most Canadians, so why not do it?

In this view, the United States’ policy was on one side of the table, and Canadian popular opinion (expressed in the Summer 2010 consultations) and good policy (in the view of civil servants, as reported by Doyle) were on the other. And so, this being politics, a choice was made.