The International Intellectual Property Association (IIPA) has once again recommended that Canada be elevated to the "Special 301 Priority Watch List" for 2008. Canada is currently on the 301 Watch List, but not on the Special 301 Priority Watch List. IIPA made the same recommendation in 2007.
Under U.S. trade law, the Office of the United States Trade Representative (USTR) maintains these lists of countries, that in the opinion of the government do not provide adequate intellectual property protections. In its annual report containing its recommendations for what countries should be placed on the watch lists, the IIPA wants Canada to be elevated to the "Special 301 Priority Watch List" in 2008.
IIPA is an umbrella lobbying group which represents the interests of the Association of American Publishers, the Business Software Alliance, the Entertainment Software Association, the Independent Film & Television Alliance, the Motion Picture Association of America, the National Music Publishers' Association, and the Recording Industry Association of America.
A word about the difference would be helpful to explain the significance of how this lobbying group is attempting to influence Canadaian national policies. Basically the difference is that those countries on the Watch List have been naughty, and those on the Special 301 Priority Watch List have been especially naughty. More technically, the Office of the United States Trade Representative explains the difference:
“USTR has created a “Priority Watch List” and “Watch List” under Special 301 provisions. Placement of a trading partner on the Priority Watch List or Watch List indicates that particular problems exist in that country with respect to IPR protection, enforcement, or market access for persons relying on intellectual property. Countries placed on the Priority Watch List are the focus of increased bilateral attention concerning the problem areas.“
Given the level of attention that the USTR has given Canada over the past year, it is hard to imagine it being any more focused or increased should Canada's status be elevated as the collective voice of the American information / entertainment industry requests.
IIPA's main complaint is that "Canada has taken no meaningful steps toward modernizing its copyright law to meet the new global minimum standards of the WIPO Internet Treaties, which Canada signed more than a decade ago."
They also complain of "ineffective border controls, insufficient enforcement resources, inadequate enforcement policies, and a seeming unwillingness to impose deterrent penalties on pirates."
And exactly what actions would IIPA like to see the Canadian government take?
In the area of "Copyright Reform," they are demanding that the Canadian government:
- Enact legislation bringing Canada into full compliance with the WIPO "Internet" Treaties (WIPO Copyright Treaty [WCT] and WIPO Performances and Phonograms Treaty [WPPT])
- Create strong legal incentives for Internet Service Providers (ISPs) to cooperate with copyright owners in combating online piracy
- Amend the Copyright Act to clarify the scope of the private copying exception for sound recordings
- Amend the Copyright Act to clarify liability for those who knowingly facilitate, encourage or contribute to infringement (such as illicit file-sharing services)
In terms of enforcement, they are demanding that Canada:
- Make legislative, regulatory or administrative changes necessary to empower customs officials to make ex officio seizures of counterfeit and pirate product at the border without a court order
- Increase resources devoted to anti-piracy enforcement both at the border and within Canada
- Direct the Royal Canadian Mounted Police (RCMP), Canadian Border Services Agency (CBSA), and Crown prosecutors to give high priority to intellectual property rights enforcement, including against retail piracy and imports of pirated products, and to seek deterrent penalties against those convicted of these crimes.
With respect to the demand for full compliance with the WIPO Treaties, IIPA says this means legislation that:
- comprehensively protects TPMs, both in so far as they manage access to copyright works and in their use to prevent unauthorized copying and the exercise of other exclusive rights;
- outlaws trafficking in devices aimed at circumventing TPMs, or providing circumvention services, and defines violations without imposing onerous intent requirements;
- defines exceptions or defenses with care, so as to avoid the creation of a market for circumvention devices or services; and
- provides strong civil and criminal remedies for violations.
But if you read the actual text dealing with TPM’s in the WIPO Treaties it is not at all clear how the IIPA reaches the conclusion that compliance with the treaties requires these actions. Article 11 of the WIPO Copyright Treaty says:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.
That's what it says. There is no requirement that contracting parties implement device prohibitions. Nor does this language specify how the operative terms “adequate legal protection” , “effective legal remedies” or “effective technological measures” are defined. While the United States chose to implement this article in section 1201 of the DMCA at a level far in excess of what the treaty requires, there is no reason why other countries wishing to implement the clause must do the same at the same excessive level. This attempt to rewrite the treaty itself in the image of the DMCA does not hold up under scrutiny.
The IIPA’s claims about the results of Canada’s alleged lack of effective legal protections are even more spectacular:
“Canada’s failure to provide legal protection for TPMs is not a mere theoretical lapse: it has already had concrete consequences. In the absence of strong prohibitions to the contrary, Canada now finds itself one of the world’s epicenters for the distribution and export of several categories of tools aimed at circumventing TPMs – so-called “modification chips” and similar devices that enable pirated and counterfeit video games to be played on videogame consoles. Highly organized international crime groups have rushed into the gap left by Canada’s outmoded copyright law and now use the country as a springboard from which to undermine legitimate markets in the United States, the United Kingdom, Australia and elsewhere, through the export of circumvention devices. It is long past time for Canada to put into place the legal tools that will enable it to put a stop to this increasing pollution of the markets of its trading partners.”
These are serious charges, suggesting that Canada is somehow aiding and abetting organized crime, but IIPA does not bother to corroborate these accusations any more then they ground their demand for device prohibitions in any treaty language.
With respect to the issue of Internet Service Provider liability there are no surprises. IIPA is calling for “a true ‘notice and takedown’ system that offers an expeditious means of shutting off access to infringing online activity, rather than confining itself to the mere "notice and notice’ regime proposed by previous Canadian governments.”
They would also like to see a narrowing of the private copying provision with respect to sound recordings and the inclusion of a broader making available right. IIPA also complains of the library and educational exceptions that were contained in Bill C-60 and does not want to see them carried forward in a new bill. That the IIPA would even worry about complaining about such anemic provisions seems particularly petty. (I’ve written about the inadequacy of the library provisions in Bill C-60 elsewhere.)
As far as enforcement goes, the IIPA is dissatisfied with how Canada’s justice system allocates its resources. They want more law enforcement resources allocated to policing copyright infringements and they want Crown counsel to “be encouraged to take on more copyright infringement cases.” They want judges to change their attitudes about copyright enforcement, and they want our prisons to house more copyright infringers. “Canadian courts” they say, “should be looked to for more consistent deterrent sentences, including jail time for piracy cases.”
While the IIPA does not suggest which criminal activities should be given less attention by border officials, law enforcement, the courts and the prison system, the direct effect of their report is that some other law enforcement priorities will need to be cut back in order to accommodate their demands.
All in all, the IIPA is seeking a rather high level of interference with Canadian internal policy. But it’s hard to place too much blame on the IIPA. After all, they were merely responding to a Request for Written Submissions which appeared in the U.S. government’s Federal Register. The real problems are structural, and are deeply embedded in U.S. trade policy which provides for the maintenance of these lists.
Hopefully, the new U.S. administration that takes office in January will thoroughly review these policies as part of an overall effort to make U.S. policy a bit less unilateral in its nature. Given the broad bipartisan support for these trade policies over the past few administrations, this may be a remote hope.
The more immediate question is whether the Canadian Parliament has the will to resist these pressure tactics.
[on the same topic, also see recent blog entries by William Patry, Howard Knopf, and Michael Geist]
Tags: IIPA USTR watch list trade policy