Barry Spookman

Barry Spookman a prominent lawyer known in Canadian intellectual property legal sectors has written an article in the Financial Post regarding the current backlash against C-11. He strongly condemns the current opposition to C-11 as coming from political opportunism and misinformation. Downplaying the DRM provisions of the bill and proposed amendments by the Canadian Independent Music Association that would put C-11 in the same domain as SOPA. But he also says the bill is tremendously progressive, allowing for Canadians to create mash-ups and time-shift. In a sense this is true, although I have argued that it is meaningless to have these provisions if it is illegal to bypass DRM.

Somewhat predictably Barry Spookman is also a registered lobbyist for Canadian Recording Industry Association (now Music Canada), the Motion Pictures Association – Canada, and Canadian Publishers Council. Michael Geist has an extensive retort to this opinion piece and he deconstructs the logic of the bill quite well. Barry Spookman spoke to a parliament committee about the now dead bill C-32 during December 2010 and his views he expresses sound remarkably different from now. It becomes clear that the his views of the bill have evolved or at least changed for his audience since he has written the Op-Ed.

The reality is, that any progressive part of the bill was vehemently opposed by him and less progressive measures. In the op-ed he is enthusiastic about the progressive provisions allowing for mash-ups, this becomes remarkably different listening to his testimony

The bill also contains a new exception that would let individuals take existing content and use it to create user-generated content. The intent is to permit an individual to use content to make a home video or create a mashup of video clips. This is an exception that to my knowledge does not exist anywhere else in the world… They could also create collective works or compilations of works, such as the best of a TV series or their favourite iPod playlist, and post those on the Internet, and they can do a lot more. The result is that the author loses significant control over the uses of his or her work, a fundamental copyright concept.

Mr. Sookman wrote this during his op-ed again in praise of the : “The bill also proposes new exceptions for broadcasters and to support learning and education”. During the testimony he says about the education provisions in C-32

It would affect the market and it would unreasonably prejudice the interests of the authors. The UGC provision as well is not a special case. It applies very extensively. It would undermine the market

Finally Mr. Sookman’s enlightening words on statutory damages:

in relation to statutory damages, you raise a really good point about the interrelationship between statutory damages and behaviour. What this bill does with respect to statutory damages is tell people they can copy as much as they want onto their computer or onto their iPod. It doesn’t matter how many times, because the most they’re going to be liable for is $5,000. Once you’re copying, why not copy as much as possible?

The maximum penalty for sexual assault in Canada is $5000, somehow pirating songs is more important than this.

I’m afraid that as an advocate of C-11 Sookman does not support progressive measures only the passage of the bill. If the SOPA like provisions get passed all the better, he will not mind. If they happen not to be passed, it’s still progress. Mr. Sookman has a right to his own opinion and write it, but he should not flagrantly disregard things he has already said.

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