[Ecommerce] Michael Geist on Canada and the 1996 WIPO internet treaties

[James Love]

http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1067814607485&call_pageid=971794782442&col=971886476975

Nov. 3, 2003. 01:00 AM
Will copyright treaty benefit Canadians?

MICHAEL GEIST
LAW BYTES

As the Internet began to emerge as a powerful new communication tool in
the mid-1990s, the World Intellectual Property Organization (WIPO), a
United Nations agency, moved quickly to establish two new treaties
designed to address the copyright complications created by the online world.

The WIPO Copyright Treaty and the WIPO Performances and Phonograms
Treaty, commonly referred to as the WIPO Internet treaties, were
formally adopted in late 1996.

The WIPO Internet treaties finally took effect last year after reaching
the thirty-country ratification mark.

While dozens of countries may sign a treaty when it is first introduced,
a treaty only becomes effective once a certain number of countries take
the positive step of ratification by amending their national law to give
the treaty full effect.

Today, the number of ratifications stands at 42 with the United States
and Japan the two most notable countries on the ratification list.

The remainder of the list is comprised of countries such as Indonesia
and the Ukraine, often cited as two leading sources of pirated music and
software, as well as Burkina Faso, Gabon, Saint Lucia, and Togo, a group
one Ottawa lawyer recently termed the "coalition of the billing."

Canada has thus far refrained from ratifying the treaties, though it has
been government policy to do so since 1997.

Our slow movement toward ratification recently caught the attention of
the House of Commons Standing Committee on Canadian Heritage, which has
been conducting hearings on Canadian copyright policy over the past few
weeks.

Late last month, the Committee presented its perspective on treaty
ratification, recommending in the "strongest possible terms" to the
responsible ministers that they instruct their officials to prepare
draft legislation by February 10, 2004 in order that the government
might ratify the treaties.

The Committee's recommendation represents a setback for Canadian
copyright policy.

Rather than leaping toward ill-conceived copyright reform that would
harm innovation and the Canadian public, our go-slow approach has
enabled policy makers to view the mistakes of others, (notably the
United States), and work toward crafting a Canadian policy that better
reflects the national interest.

Left unstated in the Committee recommendation is the fact that
ratification involves much more than merely introducing the treaties
into national law.

Both treaties contain controversial provisions that, depending on how
they are implemented, may fundamentally alter the copyright balance
advocated by the Supreme Court of Canada.

In fact, many copyright experts have begun to express doubt that Canada
should ratify the treaties at all.

While ratification clearly brings significant new obligations, the
benefits to Canadian creators and consumers are more difficult to identify.

Moreover, even if Canada were to ratify, there is considerable room for
interpreting how to do so. Canadian Heritage recently commissioned a
study on technologies, known as technical protection measures, that
enable content creators to better control their work.

While some believe that ratification requires the establishment of legal
protection against those who seek to defeat technological measures, the
study casts doubt on that conclusion.

Complicating matters even further is Canada's private copying regime,
which critics argue harms Canadian retailers and software companies by
establishing a levy on blank media such as audio-cassettes and blank CDs.

In a report issued last year, the Canadian government acknowledged that
the private copying system may not be compliant with the WIPO Internet
treaties.

In order to ensure that it is compliant, Canada would have to extend the
benefits of the levy to sound recordings and performers from all
countries that have ratified the treaty.

The cost of doing so would dramatically increase the levy, thereby
resulting in even higher prices for blank CDs for Canadians.

"First mover advantage," an adage that suggests that there are great
benefits to moving quickly and being the first to market a new product
or service, may hold true in the e-commerce environment, but it is not
necessarily the case in the policy world.

Canada has benefited by taking its time on WIPO Internet treaty
ratification. The recent recommendation from the standing committee to
fast-track the ratification process before all stakeholders have spoken
would squander our last mover advantage and leave Canadian consumers to
pay the price.

Michael Geist is the Canada

Research Chair in Internet and

E-commerce Law at the University of Ottawa and technology counsel with
the law firm Osler Hoskin & Harcourt LLP. He is

on-line at http://www.michaelgeist.ca and http://www.osler.com (e-mail
mgeist@uottawa.ca).

Additional articles by Michael Geist
--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040