All Hail General Krull! (Canadian Friendly Dictator Edition)

This post has nothing to do with copyright, but being a Canadian and a political scientist, I had to jot down my thoughts on Stephen Harper’s astonishing decision – and ability – to suspend Parliament for over two months.

Harper’s move to suspend Parliament on the flimsiest of excuses and for the second time in a year, as Andrew Coyne suggests, represents a worrying turning point in the history of Canadian democracy, but it’s one that’s been a long time coming. And while it’s tempting for partisans to frame this as the result of the authoritarian tendencies of a Conservative leader, it’s much bigger than that.

While Stephen Harper, who campaigned on a platform of greater accountability, should be held personally responsible for a government that has repeatedly mocked the concept, does anyone really think that the Liberal Jean Chrétien, who inspired Globe and Mail columnist Jeffrey Simpson to coin the phrase “The Friendly Dictatorship,” would have acted any differently? The only difference between Chrétien and Harper is circumstance: Chrétien headed a majority government, and thus controlled Parliament completely. He didn’t have to resort to blunt, thuggish measures like the suspension of Parliament because Parliament did his bidding. Harper doesn’t have that luxury, so he, as our current “Friendly Dictator,” is forced to take the low road in pursuit of total control over the federal government.

In other words, the problem is not just in our leaders, but in a political system that concentrates all power in the hands of one person. In the end, there are only two constraints on the power of the Prime Minister: the need to win re-election occasionally, and the need to retain the confidence of Parliament. This second constraint, however, was weakened almost irreparably last year when Stephen Harper managed to convince Canadians that coalition governments are somehow illegitimate, even though in the Westminster system – the Canadian form of government – nothing could be further from the truth.

As a result, the only way for Parliament to exert any influence at all is to force an election. Of course, when one party has a majority, that’s a non-starter. Even when there’s a minority government (like now), election threats are completely ineffective when your other main party doesn’t have the guts to call an election. And that’s assuming that the Prime Minister doesn’t simply suspend Parliament again to avoid any non-confidence votes.

My greatest fear is that we may have already missed our best possible opportunity to reform Parliament. In 2005, when the New Democratic Party held the balance of power in Parliament, they made their support for Paul Martin’s Liberal government contingent on the inclusion of some spending measures, now long forgotten, in the budget. Why they did not push for electoral reform –from which they would have benefitted, as a smaller party – is beyond me.

Now, things are worse. Electoral reform is nowhere on the political agenda. A Prime Minister who doesn’t even control a majority of seats in the House of Commons has demonstrated the ability to suspend Parliament at will. Coalition governments have been deligitimized. Future Prime Ministers – Liberal and Conservative – will take these facts and run with them.

The dismissal of Parliament should be a non-partisan issue that enrages all Canadians, regardless of political stripe. Today it’s a Conservative in power, and conservatives may be inclined to give Harper the benefit of the doubt (although his decision to prorogue Parliament also managed to further delay many law-and-order bills of interest to conservatives), but eventually the tide will turn.

As for me, I would rather Canada not be subject to the whims of any one person, Liberal or Conservative. One of the great benefits of democracy is that the presence of vigorous and effective opposition tends to moderate extreme political viewpoints, of all persuasions, while allowing for the pursuit of policies that satisfy the most people.

There is a sort of wisdom in this moderation. It’s a wisdom based on debate and compromise, eminently democratic and Canadian values. Unfortunately, since the time of Trudeau, Canada has been moving away from these values and sliding further toward not even rule by one party, but by one person. If Stephen Harper is allowed to get away with his disrespect of Parliament, and if Canadians do not work to get rid of the conditions that have allowed things to get this bad, all Canadians, Conservatives as well as Liberals, will regret it in the end.

The Value of Music, Beatles Edition

For sale on the Mexico City Metro: Two hundred and thirty-seven Beatles MP3s on one CD-ROM for 10 pesos (about 95 cents Canadian). As someone who understands the importance of The Beatles to pop music but wouldn’t cross the street to hear one of their songs, that sounds about right. Maybe a bit too high. (I passed.)

It did make me wonder whether the prospective set of customers for a bootleg CD of The Beatles back catalogue overlap with those for a Beatles box set. How about with those for authorized MP3s, if they ever get around to releasing them? Not being a Beatles fan, I can't imagine purchasing any of them at any price, but given that unauthorized Beatles MP3s are surely available somewhere online already (not being a fan, I can’t be bothered to check), and that presumably anyone with an interest in The Bealtes would have already ripped their own CDs to their computer, what would motivate someone to wait years for the authorized MP3s?

Ten pesos is also an interesting price when you consider that those 10 pesos has to cover the costs of production (buying the blank CDs, and the computers to burn them) and distribution and labour costs (the network of hawkers selling the CDs) and still make a profit. Whoever sells these CDs must be making some money, since you can't go five minutes on the subway without being interrupted by a hawker pitching The Beatles or the Greatest Hits of the 80s or whatever.

By the way, I just purchased an e-book version of Landes and Posner's The Economic Structure of Intellectual Property Law from the Sony E-bookstore. For about $60. I leave the link between the Beatles and Landes and Posner as an exercise for the reader.

Why Buy American has nothing to do with Canadian copyright reform

One of the fun things about doing a dissertation on copyright is that you can’t go a day without something interesting happening (unfortunately, this is also one of the annoying things when you’re trying to finish said dissertation).

Yesterday’s news had lobbyist Scotty Greenwood, of the Washington-based Canadian American Business Council, suggesting that Canada could get around the country’s exclusion from the Buy American program, which allows U.S. governments to favour U.S. suppliers, if the Canadian government addressed U.S. concerns on copyright. Howard Knopf was quick off the bat decrying this as a bad idea.

And it could be (it would depend on the net economic and social benefits of such a deal). However, thanks to the NAFTA and the decentralized nature of the American political system, this kind of quid pro quo is highly unlikely. Conservative Industry minister spokesperson Darren Cunningham gets it exactly right when, as the Globe’s Bill Curry reports, he “notes that state and municipal governments, which are the source of the tensions, are unlikely to share Washington’s level of interest when it comes to copyright policy.”

Happily, my dissertation is examining exactly this issue, specifically why Canada and Mexico have taken over 12 years and counting to implement the WIPO Internet Treaties despite constant pressure from the United States and its content industries to do so. The United States is without question the region’s superpower. But, despite the fact that copyright has been at the top of the American trade agenda throughout the Bush Jr. and now Obama regimes, Canada has proposed (and failed to pass, thanks to minority government-related election calls), first a 2005 bill (legislative summary) that didn’t do what the U.S. wanted, and then a 2008 bill (legislative summary) would have given the U.S. much, but not all, of what it wanted. (Mexico’s experience, which I’m currently researching, is somewhat different.)

While lobbyists like Greenwood can suggest that Canadian movement on issue X will yield American movement on issue Y (what political scientists call “linkage”), it’s actually really hard to link issues in Canada-U.S. relations, for two reasons.

First, as Cunningham suggests, unlike Canada’s, the U.S. political system is not concentrated in one person. Stephen Harper can make credible promises to link unrelated issues because he, for all intents and purposes, controls Parliament. Barack Obama can’t deliver in the same way, because he has to deal with a Congress that he does not control and whose interests may differ from his. The politics are much more complicated. A basic point, but one that politicians, journalists, lobbyists and we political scientists don’t always remember.

Second, there is currently no regional institutional framework to allow for the easy linking of issues. This is where the NAFTA comes in. The NAFTA sets baselines and rules governing North American economic activity, but it contains no way to modify (easily) these rules, meaning they’re essentially stuck in amber.

There’s a reason why the United States has incorporated successfully its demands on copyright protection into its trade agreements: they’re trading something the other guy wants (access to the U.S. market) for something that the U.S. wants (U.S.-style copyright laws). But because Canada and Mexico already have guaranteed access to the U.S. market, thanks to the NAFTA, the U.S. has relatively little to offer its trading partners. Somewhat ironically, the NAFTA has provided North America’s juniour partners with a not-insignificant degree of policy autonomy.

(Given the reality that copyright laws are changed regularly in response to technological developments, the American strategy of using trade agreements, which can’t be modified easily, to set other countries’ copyright laws may backfire in the long run.

On another point, the lack of issue linkage in the current Anti-Counterfeiting Trade Agreement is one of the more puzzling things about those negotiations. Given the secrecy surrounding the talks, it’s unclear even why countries like Canada are negotiating this agreement. But that’s a topic for another day.)

While the second point is a bit underappreciated (though Stephen Clarkson hypothesized it a few years ago, in a paper that kickstarted my own thinking on the issue), the first point is a cornerstone of the study of Canada-U.S. relations, since at least the publication of Keohane and Nye’s Power and Interdependence in the 1970s.

I’m not saying that linkage is either impossible or always undesirable. The moribund Security and Prosperity Partnership of North America provided a forum that allowed for policy linkages and may have provided an opportunity for the United States to exert pressure in 2008 to get what it wanted in what eventually became Bill C-61. Canada and Mexico may decide to implement U.S.-style copyright policies.

The two governments may attempt to link issues. But absent some kind of new regional institutional structure, or a new round of free-trade talks, any kind of Buy American-copyright linkage has the odds stacked against it.

In Mexico, creators and industry are getting together

Very interesting news here in Mexico. El Universal and others (all sources are in Spanish) are reporting that over 30 copyright-related groups are coming together to form the Coalición por el acceso legal a la cultura (Coalition for legal access to culture). According to composer and coalition co-president Armando Manzanero (rough translation): “We are uniting so that no one steals a song, a book or a picture, so that everyone pays royalties to the artists.”

What’s most significant is that this coalition unites artists’ collective societies and unions with those on the corporate side, such as the Asociación Productora de Fonogramas (the only industry group mentioned by name in the articles, though I understand from people I’ve talked with that the coalition basically includes everyone traditionally involved in copyright). Furthermore, it has the blessing of the two main government oversight bodies, INDAUTOR and IMPI, as well as the head of the main congressional oversight committee, la Comisión de Cultura de la Cámara de Diputados, Kenia López.

Generally speaking, the coalition favours stronger copyright laws (and enforcement). Their initial projects include working toward a copyright levy and a regime for ISP liability, since right now there is no specific Mexican law governing ISP liability. I also understand that they are interested in getting the government to enforce their copyright laws by granting them ex officio authority, meaning that the government would not have to wait for an infringement complaint to take action against suspected infringers. (I think this is the big one, since it moves the onus for enforcement from the private sector to the public sector and, thus, the taxpayer.)

Getting Ready for the Future

This coalition comes in advance of what will likely be a major reform of Mexican copyright law in a few years’ time. The last major reform to the Mexican Ley Federal de Derecho de Autor was in 1997, mainly (but not completely) to implement Mexico’s obligations under the North American Free Trade Agreement; it was modified in 2003, notably to increase the standard copyright term to a world-leading life of the author plus 100 years (at the request of Mexican authors’ groups – not all copyright reforms are driven by American industry).

The upcoming legislative battle will likely pit coalition members against Mexican Internet Service Providers, with the coalition wanting the ISPs to undertake some form of policing of their networks and the ISPs trying to minimize their legal obligations. Having a coalition allows these disparate groups to work out their differences (and there will be differences) in private before dealing with the ISPs, and to present a unified front to the authorities, giving their conclusions a lot of weight.

Issue Framing

The coalition is also a savvy move in the battle for control of how the issue is framed. In countries like Canada and the United States, there is a growing appreciation that artists and distributors/producers sometimes have conflicting interests when it comes to copyright. It is no longer identified solely with authors, but rather as a commercial right whose benefits accrue mainly to large corporations. In contrast, the Mexican copyright discourse is still dominated by the Continental idea of copyright (or, rather, derecho de autor – author’s right) and is seen as a tool for the protection of the national culture (whereas in Canada, the claim that copyright serves mainly foreign, i.e., American, interests, has a lot of currency). This narrative is reinforced by the role of collective societies as providers of social programs to artists and as their main representatives in the legislative process. Having all these groups under one roof reinforces the idea of copyright as an author’s right, rather than as a commercial right.

Getting Ahead of the Public

The coalition is also getting ahead of another group that has proven increasingly vocal in places like Canada: the user community. While the past several years have seen an astonishing politicization of copyright in Canada, there is to date no evidence of a similar groundswell in Mexico. (According to one of my interview subjects, this book, released in July 2009, was intended partly as a way to kickstart a public debate over copyright in Mexico.)

Part of this lack of interest can be attributed to the low level of Internet penetration in Mexico. This won’t always be the case, however; as more Mexicans go online, they are likely to become more aware of how they are affected by copyright law. In the face of a well-organized coalition, it will be harder for consumers to organize effectively.

At a time when many folks in the blogosphere are focused on the (admittedly important) Anti-Counterfeiting Trade Agreement (which should be made public, if only to allow for reasoned debate on the issue), the creation of this coalition is a reminder that copyright law, at the end of the day, is made and shaped domestically, not just internationally, and that stronger copyright protection is not necessarily only an objective of the American copyright industries.

Tepito!

As I mentioned above, I'm in Mexico to study Mexican copyright policy (I'm actually comparing the implementation of the WIPO Internet Treaties by Canada, the United States and Mexico to see what it can tell us about North American governance, but I'll save that for later). A few weeks ago, I went with my neighbour and his girlfriend to Tepito. If you're interested in copyright, then you've heard of Tepito. If you're a political junkie in Washington, you go to Capitol Hill; if you're into copyright, you gotta check out Tepito.

It's an infamous thorn in the side of the copyright industries and the Mexican government (Outside of copyright, it has a colourful history). The International Intellectual Property Alliance (IIPA) - the main lobby group for American copyright companies - claimed in 2008 that Tepito accounted for "65% of the pirate music product manufactured and distributed" in Mexico. Thanks to its deep connections with organized crime, it's also a no-go area for law enforcement.

Based on what I'd read about the place, I wouldn't have gone without my Mexican neighbour, but once there, it's an eye-opener (and it didn't feel too dangerous, but I may have been oblivious). That it's a veritable warren of stalls makes it familiar to anyone who's ever been to the night market in Chaing Mai, or countless other places throughout Asia and Latin America. I didn't see any CDs being burned, but I did see hundreds of DVD covers in the process of being prepared for assembly. Anyone who's interested in copyright and how it interacts with the real economy should definitely check it out.

Some thoughts and observations:

Free marketers would love Tepito. It's remarkably complex and has developed in the absence of government regulation. Many vendors specialize (some exclusively offered porn, Mexican movies, and arthouse flicks). They may also have overcome the quality problem associated with pirated materials. According to a professor I interviewed for my field research, many vendors offer you the opportunity to return the DVD if you're not satisfied with the quality. To me, this suggests that these vendors have developed roots in their community.

What's also interesting, for a lapsed economist, is the complementary (or symbiotic) economy that has developed around Tepito. Much (or most) of the stuff sold there may be stolen, but there are also a lot of vendors selling food (a lot of which looked quite tasty) and crafts. There is also a market (or more than one; I was unclear where Tepito ended and the others began) near Tepito; I'd bet that one depends on the other.

Price competition. Seeing the low prices for DVDs (three to five dollars Canadian) made me think that the really interesting question for copyright aficionados is not how to eliminate copyright violators, but why people still buy full-price CDs and DVDs and go to movies, when substitutes are available at a fraction of the price. Economically, it makes zero sense. I'd love to see any work that's been done on this (I've been too focused on the philosophy of copyright and the Internet treaties to be of much use here, unfortunately).

Full-price DVDs may be a status symbol: a form of conspicuous consumption unavailable to the majority of Mexicans, 50% of whom live below the poverty line. So what you have is two markets: the rich and the poor. The professor I mentioned earlier said he thought his students bought so much bootlegged material because while they've been trained to consume, being students, they lacked the means to buy authorized goods.

Extend this argument to the entire economy and you've got a situation in which an illegal market may not necessarily be a bad thing for the content industries. Cheap knockoffs may get people interested in consuming these status products; once they make enough money, they might switch to the more expensive legit (status) copies.

It also made me wonder what would happen if the copyright industries slashed their prices to compete with the bootleggers, and what the industry would look like at those prices. I'm going to have to do some hunting for papers on the economics of piracy. I'd love to know what their profit margins are.

Grist for a post-doc, maybe.

Availability. Contrary to what you read, you can't buy everything in Tepito. I looked high and low for a copy of Star Trek - for research purposes, of course - and I couldn't find a copy anywhere. I saw it on the streets for the first time two days ago. Wonder if they took any special precautions to keep it from leaking out.

The future. Mexican Internet penetration rates are still quite low. It would be interesting to come back in ten years and see if the commercial market for illicit CDs and DVDs had been replaced by non-commercial (potentially illicit, depending on what the law says at the time) file sharing by Net-savvy Mexicans. Tepito's days may be numbered, not by law enforcement, but by technology.

Killer swag

Caught The Killers at the Palacio de los Deportes last Sunday, general admission, along with about 10,000 screaming Mexican fans. How good are The Killers live? Good enough that they can play "Somebody Told Me," their ridiculously catchy debut hit, only two songs into their 90-minute set and not have to worry about any post-hit letdown. I'm not the biggest Killers fan in the world and their albums are kind of uneven, but live? Wow. They're one of those bands that know how to play a stadium and don't shy away from the Rock Anthem (which, combined with pyrotechnics, is a thing of beauty to behold). If they ever manage to harness their talent for an entire album, they'll be unstoppable, live and on tape.

Almost as good was the variety of bootleg swag available outside the venue. I'm talking countless different T-shirt designs, glassware, posters, stickers, lighters: basically, if it was possible to stick a "Killers" logo on something, you could probably find it in one of the many stalls lining the route from the metro station to the stadium. Also saw some cops standing idly by, for what it's worth.

I've been to a few shows in the two months since I arrived in Mexico City, and the big shows usually have the same things for sale, only with a different logo. That said, every show so far has had some unique merchandise. There was nothing at The Killers show to match the pure awesomeness of the Depeche Mode T-Shirt featuring the band members, drawn Simpsons-style, trapped along with Homer Simpson in individual test-tube thingies while Kang and Kodos look on, slobbering. I regret few things in life; not buying that shirt is one of them.

The Killers show did, however, feature (and I don't think I'm imagining this) a Killers sleeping bag cover, which I didn't buy, and a Killers travel pillow, which I did.

Anyway, check it out: Killers bootleg swag (mug: 100 pesos, keychain: 30 pesos, pillow: 40 pesos, general admission ticket: 800 pesos. 12 pesos = C$1). If they'd had stuff like this for sale officially, I would have bought it.

(Mandatory IP question: why do people buy official concert T-shirts, especially when there are plenty of knock-offs available at a lower price? Quality? A desire to support the band? The designs are cooler? I'm guessing there's no one answer. If anyone wants to share, feel free.)

And, as an added bonus, some glassware from the Pet Shop Boys' concert here on October 1.



The paint started coming off before I got them home. Obviously, when it comes to bootleg merch, it's buyer beware.

The Leaked ACTA Documents: What Next?

I had originally intended my first post to be more introductory (PhD student in political science at Carleton University in Ottawa, writing a dissertation on implementation of the World Intellectual Property Organization Internet treaties in Canada, the U.S. and Mexico, former economist and reporter, currently working out of Mexico City trying to finish my dissertation so I can rejoin the workforce), but instead I’m going to jump right into what I hope will be regular postings related mainly to my academic work: copyright policy and North American regional integration. Comments always welcome.

I’ve been experiencing a bit of déjà vu reading Michael Geist’s recent postings on the leaked Anti-Counterfeiting Trade Agreement (ACTA) which, despite its name, seems to have at least as much to do with copyright as counterfeiting (Geist has a link to a leaked description of the parts of ACTA related to ISP liability and technological protection measures). The secret negotiations among a group of (mostly) developed nations attempting to set a global standard that goes far beyond the existing international treaties, the leaks that have sparked outrage among activist groups, the negotiations outside the subject’s traditional fora: what we have here is practically a repeat of the Multilateral Agreement on Investment (MAI: OECD page; Wikipedia) in the late 1990s.

As a pup reporter for a small Toronto-based Catholic social-justice newspaper (how’re those for some loaded labels?), I filed many a story on the opposition to the MAI, and I remember how activists claimed victory when it was shelved. For those of you who don't recall the MAI, it was like the Battle of Seattle, only about global investment rules. Its defeat was seen as the first expression of what has come to be called global civil society.

For those concerned with the potentially harmful effects of an ACTA, which could include a three-strikes rule for repeat copyright infringers and a notice-and-takedown regime for ISPs, there are some important lessons to be learned from the MAI experience, the most obvious to me being:

Lesson #1: The negotiating forum matters. This is the big difference between the ACTA and the MAI. The MAI was negotiated under the aegis of the Organization for Economic Cooperation and Development. The OECD, and not the recently established WTO, was chosen as the negotiating body because it was felt that its limited, relatively homogenous membership (currently 30, mainly industrialized, countries) would make it easier to conclude an investment treaty. This treaty could then be presented to the rest of the world as a fait accompli without the bother of having to negotiate with countries whose interests may not be in sync with the richer OECD countries.

The one flaw in this plan was that the OECD was working under consensus rules: if one country objected, then the whole treaty would not proceed. Indeed, while activists can take a lot of the credit for the eventual demise of the MAI, it was actually the French government’s decision not to pursue the MAI that actually killed it but good.

The big question for ACTA opponents (and proponents, for that matter) is whether the talks are vulnerable to a country pulling a France before the end of negotiations next year. I don't know the answer to that question, mainly because (what with the secrecy and all) the terms under which the treaty is being negotiated are not readily available. But it would seem that so long as the United States, Japan and the European Union are on board (the U.S. isn't going anywhere; don't know about Japan or the EU), it doesn't matter if most other countries stay or go. If the United States can go into Iraq with Britain, Australia and Moldova as its main allies and call it a coalition, they could still negotiate a treaty with bit players and call it a new world standard.

So ACTA opponents will have to take into account the likely success of a treaty and plan accordingly. The basic strategy of the MAI protesters seems to remain valid here: international information coordination (the easy part) and domestic political pressure (the hard part). The real battle will probably take place country-by-country, first over whether to withdraw (Howard Knopf argues for walking away) and then over the treaty’s implementation.

While this likely will make the ACTA political debate different (and more difficult for opponents) than the MAI debate, the final outcome is not predetermined. Treaties can be modified before they are signed, and then they have to be implemented, and then enforced. As has been demonstrated by Canada’s inability to implement its obligations under the WIPO Internet treaties, and the U.S. refusal to implement the Kyoto Accord (which it signed), just because a country signs a treaty does not mean that it’s going to implement it.