p2pnet view P2P | Politics:- “More than fourteen years ago, Canada played an important and positive role in negotiation of the WIPO Internet Treaties.

“But today, Canada stands virtually alone among developed economies in the OECD (and far behind many developing countries) in failing to bring its laws into compliance with the global minimum world standards embodied in those Treaties and in legislative best practices worldwide.”

Wow, eh ?!

The condemnation comes in the latest annual IIPA BS report.

IIPA stands for International Intellectual Property Association which as, Michael Geist points out, boasts the likes of the RIAA, MPAA, BSA, and ESA as ‘members’

He also stresses Canadian officials have noted, “In regard to the watch list, Canada does not recognize the 301 watch list process.

“It basically lacks reliable and objective analysis. It’s driven entirely by U.S. industry.

“We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.”

THE IIPA continues >>>

[Canada's] Bill C-32, tabled in June 2010, is the third copyright reform proposal in 5 years. Like its predecessors, the Bill takes some critical steps forward toward Treaties compliance, including robust anti-circumvention provisions, and includes a new cause of action against online services designed primarily to enable infringement. However, its approach to the role of service providers in combating online piracy is insufficient and deeply flawed, and it would add a host of new exceptions to copyright protection, many of which are inconsistent with Canada’s international obligations under the Berne Convention and TRIPS, and significantly broader than those found in other jurisdictions.

Canada should be encouraged to enact the bill this year, but only after its major flaws are corrected. Canada’s enforcement record also falls far short of what should be expected of our neighbor and largest trading partner, with ineffective border controls, insufficient enforcement resources, inadequate enforcement policies, and a seeming unwillingness to impose deterrent penalties on pirates. Canada’s parliamentary leadership and government, at the highest levels, have acknowledged many of these deficiencies, but have done very little to address them. While we are encouraged by a few examples of improved enforcement responsiveness against physical piracy, overall the piracy picture in Canada is at least as bleak as it was a year ago, and it is cementing its reputation as a haven where technologically sophisticated international piracy organizations can operate with virtual impunity. To underscore U.S. insistence that Canada finally take concrete action to address the serious piracy problem it has allowed to develop just across our border, and that it bring its outmoded laws up to contemporary international standards, IIPA recommends that Canada be maintained on the Priority Watch List in 2011.

Here’s Geist >>>

This report is what Canadian officials have in mind when they talk about it being driven entirely by U.S. industry. There are many aspects worth noting in this year’s report — the criticism of countries like Vietnam and the Philippines for encouraging the use of open source software (the Vietnamese program was established to help reduce software piracy), the criticism of Bill C-32′s digital lock provision that allows cabinet to establish new exceptions (the IIPA would like any new exceptions to be both limited and for a limited time), and the near universal demand that countries spend millions of public dollars on increased policing, IP courts, and public education campaigns.

Of particular note, however, is the fact that the IIPA report provides a fairly convincing case that there is considerable flexibility in implementing the WIPO Internet treaty anti-circumvention rules.

The IIPA hopes to make the opposite case by claiming that country-after-country should amend their digital lock rules to make them more like the U.S. DMCA.

Yet the picture that emerges is that dozens of countries around the world have rejected that DMCA approach in their effort to comply with digital lock requirements found in the WIPO Internet treaties.

Rather, consistent with the flexible language found in the treaties, there are a wide range of implementation approaches. Note that the list includes countries in the European Union and OECD as well as countries that have acceded to WIPO Internet treaties or are part of the Anti-Counterfeiting Trade Agreement.

Countries cited by the IIPA include:

• Argentina, which is a member of the WIPO Internet treaties but has not introduced anti-circumvention rules into its domestic law
• Belarus, whose anti-circumvention rules do not cover trafficking in circumvention devices or access controls
• Brazil, which has proposed anti-circumvention rules without covering both access and copy controls, without a prohibition on trafficking in circumvention devices, and without criminal remedies
• Chile, which recently reformed its copyright law but did not include anti-circumvention measures
• Greece, whose anti-circumvention rules do not cover both access and copyright controls or provide civil remedies for software programs
• India, which has proposed anti-circumvention rules with a fair dealing circumvention exception, do not cover access controls, and do not cover trafficking in circumvention devices
• Indonesia, which has joined the WIPO Internet treaties, but has not implemented anti-circumvention provisions
• Israel, which has no anti-circumvention rules and has rightly asserted that there is a “lack of uniform implementation worldwide.”
• Kuwait, which has proposed anti-circumvention rules that allow circumvention for permitted purposes
• Malaysia, which has proposed anti-circumvention rules that may not include access controls
• Mexico, which has acceded to the WIPO Internet treaties but has not implemented anti-circumvention rules
• the Philippines, which has one copyright reform bill with anti-circumvention rules that do not include access controls or cover trafficking in anti-circumvention devices
• Poland, which acceded to the WIPO Internet treaties in 2003 and 2004, but whose anti-circumvention rules do not cover circumvention devices
• Romania, whose anti-circumvention rules only cover circumvention devices, not acts of circumvention
• Russia, which proposed anti-circumvention legislation in a November 2010 draft that includes many digital lock exceptions
• Singapore, which the IIPA says needs stronger criminal penalties for violations of its anti-circumvention rules
• Spain, whose courts have concluded that “devices primarily designed for purposes of circumvention are lawful when capable of some ancillary non-infringing use.”
• Switzerland, which implemented the WIPO Internet treaties in 2008 and has an circumvention exception for any “use permitted by law.”
• Thailand, which has created draft copyright legislation that may have excluded access controls from the anti-circumvention rules
• Turkey, which joined the WIPO Internet treaties in 2008 but does not have anti-circumvention rules
• Ukraine, which acceded to the WIPO Internet treaties in 2002 but whose anti-circumvention rules require proof of circumvention
• Vietnam, which prohibits trafficking in circumvention devices but does not apply the provision to related rights

The IIPA does not include many other countries with anti-circumvention rules that differ from the U.S. model including ACTA partners New Zealand and Japan. The IIPA report provides a convincing case that the global community views the WIPO Internet treaties digital lock provisions as providing considerable flexibility in implementation. The notion that Canada faces a risk of adopting a flexible approach is undermined by the practices of countries in Europe, Asia, and the Americas, many of which have soundly rejected the U.S.-style DMCA system.

Michael Geist – Michael Geist’s Blog
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist @ uottawa dot ca]

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February, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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This entry was posted on Thursday, February 17th, 2011 at 4:50 pm and is filed under P2P, Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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