The vast majority of the online submissions sent to Ottawa last year as part of a public consultation on controversial proposed changes to Canada's copyright laws were form letters from just one interest group, says a Toronto lawyer who has studied the exercise.
Richard Owens, an intellectual property lawyer with Stikeman Elliott LLP, said about 70 per cent of the submissions were form letters distributed by the Canadian Coalition for Electronic Rights, a little-known group of companies that manufacture "modchips," or hardware used to modify video-game consoles to accommodate pirated software.
Mr. Owens, in a paper posted this week on an Osgoode Hall Law School website, analyzed the more than 8,000 online submissions (freely available on the government's website).
He also determined that not only were many submissions anonymous, but they were solicited via so-called BitTorrent-related sites, used for illegal downloading of music and movies - meaning many may be from outside Canada.
"I didn't do it to try to flag the government, which put a lot of time and effort into trying to consult, which is a great thing," Mr. Owens said in a phone interview. "But this really shows, to me, the limits of online consultation."
He said he hoped the government, which also conducted extensive in-person public consultation meetings, had analyzed the online submissions closely. He called for the government to release its findings.
Michael Geist, a University of Ottawa law professor and copyright expert, dismissed Mr. Owens's complaints, saying that even if the submissions are form letters, they still demonstrate Canadians expressing their views on copyright issues.
He said those submitting form letters through one of the websites in question had to provide a Canadian address. And he also points out on his blog that other players, such as the record industry, distributed form letters. But that industry's position persuaded only eight people to sign the letters.
"The reality is that thousands of Canadians took the time to write," Prof. Geist said. " … This was, by any standard, a massive response to a government consultation."
Matthew Deacon, a spokesman for Heritage Minister James Moore, said the government stands by its consultation process. He would not speculate on what the copyright bill may contain.
Toronto lawyer Barry Sookman, a technology and intellectual property expert with McCarthy Tétrault LLP who acts for the recording industry, said any new bill can be expected to address the same issues in the two abortive copyright bills that have preceded it.
For example, the government's failed 2008 bill included exceptions for consumers to legalize "format shifting," or the transferring of personal CDs to an owner's computer or iPod, and "time-shifting," or the use of a personal video recorder to save TV shows for later viewing.
The bill might also include a liberalized approach to what is know as "fair dealing," something he said would be a mistake.
Canada's rules currently allow limited reuse of copyrighted material for "research or private study" and "criticism or review," and some advocates, including Prof. Geist, have called for a broadening of these categories along U.S. lines, perhaps to include teaching and parody or satire.
Mr. Sookman argues this would lead only to uncertainty as to what is allowed and what is not, and, inevitably, lawsuits.
Jeff Gray