[A2k] Geist on US Special 301 Report

[Judit Rius Sanjuan]

http://www.michaelgeist.ca/content/view/1889/159/

U.S. Copyright Report More Rhetoric Than Reality

Appeared in the Toronto Star on April 23, 2007 as We Mustn't Cave In To
Copyright Bullying
<http://www.thestar.com/sciencetech/article/206012>

This week the Office of the United States Trade Representative (USTR),
the U.S. government department responsible for international trade,
will release its annual report card on intellectual property protection
around the world. The "Special 301 report" typically identifies about
50 countries that the U.S. has targeted for legal reform.

This year, it is a virtual certainty that Canada will receive special
attention, with the U.S. claiming that the country has neglected to
address critical issues and suggesting that it is rapidly emerging as a
piracy haven. While the report will generate media headlines and cries
for immediate action from Industry Minister Maxime Bernier and Canadian
Heritage Minister Bev Oda, the reality is that Canada=92s record on
intellectual property protection meets international standards.

Moreover, differences between the U.S. and Canadian economies - the
U.S. is a major exporter of cultural products and has therefore
unsurprisingly made stronger copyright protection a core element of its
trade strategy while Canada is a net importer of cultural products with
a billion dollar annual culture deficit - means that U.S.-backed
reforms may do more harm than good.

In fact, the U.S. claims
fail to recognize that the current Canadian legal framework is
successfully supporting a rapidly developing digital marketplace
featuring digital download music sales that grew by 122 percent last
year (nearly double the U.S. rate) with twice as many online music
sellers as the U.S. when measured on a per capita basis.

Consider three issues likely to generate criticism in the Special 301
report - the fact that Canada has not ratified the World Intellectual
Property Organization's Internet treaties, extended the term of
copyright by an additional 20 years, or introduced anti-camcording
legislation designed to stem movie piracy.

Notwithstanding the pressure on Canada to act on these issues, even
one-time U.S.
supporters are beginning to admit that these policies are open to
doubt. Last month, Bruce Lehman, who served as the Assistant Secretary
of Commerce in the Clinton Administration where he was the chief
architect of the WIPO Internet treaties, acknowledged that "our Clinton
administration policies didn't work out very well." Meanwhile,
Marybeth Peters, the U.S. Registrar of Copyrights has noted that the
U.S. extension of copyright was a "big mistake," and the President of
the U.S. National Theater Owners Association has advised his members
that notwithstanding the introduction of anti-camcording laws,
unauthorized camcording in the U.S. is on the rise.

Not only are the policies suspect, but the USTR report should be seen
for what
it is - a biased analysis of Canadian law supported by a
well-orchestrated lobby effort.

Since the mid-1990s, the USTR has placed intellectual property
protection at the very top of its
priority list. As a result, dozens of countries have entered into
trade agreements with the U.S. in which they undertake to implement
U.S. style intellectual property protections.

The latest example is this month's free trade agreement between the U.S.
and South
Korea. As part of that deal, the U.S. demanded that South Korea extend
the term of copyright, ratify the WIPO Internet treaties, decrease
Korean content requirements, and open Korean broadcast and
telecommunications companies to total U.S. ownership.

Canada has not faced similar trade pressures - the North American Free Trad=
e
Agreement pre-dates the shift in USTR priorities - yet it has not been
spared intense U.S. lobbying.

In recent months, U.S. Ambassador David Wilkins has publicly called on
Canada to introduce
copyright reform, characterizing our laws as the weakest in the G7
(conveniently overlooking the fact that the G7 no longer exists and
references to the G8, which includes Russia, would not be accurate),
while U.S. Senators Dianne Feinstein and John Cornyn have written a
public letter to Prime Minister Stephen Harper demanding
anti-camcording legislation.

Government documents obtained under the Access to Information Act reveal
that lobbying pressure is
even more intense behind closed doors. During the first nine months of
2006, the documents show meetings focused exclusively on intellectual
property were held between U.S. and Canadian officials in January and
September in Washington as well as in April, May, and August at the
U.S. embassy in Ottawa.

The documents also reveal that even Canadian Members of Parliament have
used their positions to promote
USTR concerns. In August 2005, then Canadian Heritage Parliamentary
Secretary Sarmite Bulte sent a personal request to Frank McKenna, the
Canadian Ambassador to the United States, to meet for "a briefing on
USTR concerns" with Canadian copyright reform. The private meeting,
which took place a month later in Washington, featured the Ambassador,
Ms. Bulte, and Canadian Recording Industry Association President Graham
Henderson.

While the USTR report and its supporters seek to paint Canada as a
laggard on copyright, this rhetoric ignores the fact
that Canada is compliant with its international obligations and that
Canadian law is consistent with the laws in most countries around the
world. For example, of the three highlighted issues (WIPO
ratification, copyright extension, and camcording), only three of 192
United Nations members - the U.S., Singapore, and the Czech Republic -
have completed all three reforms.

Canada need not become the fourth country on that list. The USTR may
give a Canada a failing
grade, however, the real failure lies with countries that cave into
such bullying by enacting laws that are not in their national interest.

Michael Geist holds the Canada Research Chair in Internet and E-commerce
Law at
the University of Ottawa, Faculty of Law. He can reached at
mgeist@uottawa.ca or online at www.michaelgeist.ca.

--
Judit Rius Sanjuan
Attorney
judit.rius@keionline.org

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