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[d@DCC] [Random-bits] Michael Geist on trade agreements exporting copyright policy (fwd)

From: Russell McOrmond <russell _-at-_>
To: General Copyright Discussions <discuss (at)>
Date: Tue, 21 Oct 2003 23:23:21 -0400 (EDT)

Full circle, back into Ottawa...

 Russell McOrmond, Internet Consultant: <> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  --

---------- Forwarded message ----------
Date: Tue, 21 Oct 2003 20:43:29 -0400
From: James Love < _AT_>
Subject: [Random-bits] Michael Geist on trade agreements exporting
    copyright policy

Date: Mon, 20 Oct 2003 07:49:46 -0400
To: Declan McCullagh <declan _AT_>
From: Michael Geist <mgeist (AT)>
Subject: Exporting Copyright - Trade Negotiations As Copyright Policy


Of possible interest to Politech -- my regular Toronto Star Law Bytes 
columns focuses on the growing importance of trade agreements to the 
formulation of copyright policy.  The column notes that the U.S. has begun 
to export its copyright policy through a push for stronger copyright 
protections in its bi-lateral trade agreements.  Developing countries 
readily agree as the inclusion of stronger copyright protections is seen as 
a costless choice, while developed countries are willing to treat copyright 
protection as little more than a bargaining chip as part of a broader 
Column at
<> [Toronto Star]
Why we must stand on guard over copyright

Michael Geist

As a trading nation, Canadians have considerable experience with 
negotiating trade agreements. From the Auto Pact in the 1960s, to the 
U.S.-Canada Free Trade Agreement in the 1980s, we have relied on trade 
deals to facilitate economic growth and to encourage exports of everything 
from cars to forestry.

In recent months, the world has been witness to a new priority in trade 
discussions - copyright. Although traditionally treated by many countries 
as a cultural issue not subject to negotiation, stronger copyright 
protections are now often included at the insistence of the United States. 
The move toward including copyright within trade negotiations deserves 
close scrutiny as it has
significant ramifications for national copyright policy.

Although the General Agreement on Trade and Tariffs (GATT), the world's 
most important trade agreement, referenced intellectual property rights, it 
was not until recently with the emergence of the Agreement on Trade-Related 
Aspects of Intellectual Property Rights (better known as the TRIPS 
Agreement) in the 1990s that copyright and other intellectual property was 
clearly placed on the trade docket.

While the TRIPS Agreement includes important provisions governing the equal 
application of intellectual property protections between countries, it does 
not address the core concerns raised by the online environment such as 
technical protection measures (technology that can be used to "lock" 
copyright materials) and the role and responsibilities of Internet service 
providers in grappling
with online copyright infringement.

Those issues are currently dealt with by the World Intellectual Property 
Organization's 1996 Copyright Treaties. While several countries, most 
prominently the U.S., have ratified the WIPO treaties, many others, 
including Canada, have moved slowly to alter their copyright laws to 
incorporate the provisions that may be needed to become "WIPO compliant".

The reticence to adopt the WIPO standard is understandable. Many believe 
the U.S. experience illustrates the dangers of adopting copyright 
protections that may ultimately stifle innovation. The Digital Millennium 
Copyright Act, the U.S. statute that implements the WIPO standard, has led 
to scholars declining to publish their research out of fear of lawsuits, 
hundreds of individual Internet
users having their privacy rights ignored, and copyright law being 
strangely applied to garage door openers and computer printers.

In fact, the Canadian Supreme Court identified many of those same concerns 
in a landmark case last year. Noting the importance of maintaining a fair 
copyright balance, the Court stated that "the proper balance ... lies not 
only in recognizing the creator's rights but in giving due weight to their 
limited nature . . . excessive control by holders of copyrights and other 
forms of intellectual property may unduly limit the ability of the public 
domain to incorporate and embellish creative innovation in the long-term 
interests of society as a whole, or create practical obstacles to proper 

The delay in spreading the WIPO standard throughout the world has 
frustrated the U.S., which as a major producer of movies, music, and books, 
has long promoted stronger copyright protections. In response, it has begun 
to demand inclusion of copyright protections akin to those found within the 
WIPO treaties when negotiating bi-lateral free trade agreements.

The strategy appears to be working as in recent months countries worldwide, 
including Singapore, Australia, and the Dominican Republic, have all 
indicated that they are receptive to including copyright within their trade 

Developing countries such as the Dominican Republic view the inclusion of 
stronger copyright protections as a costless choice. For those countries, 
the harm that may result from excessive copyright controls pales in 
comparison to more fundamental development concerns and they are therefore 
willing to surrender copyright policy decisions in return for tangible 
benefits in other
trade areas.

Developed countries such as Australia may recognize the importance of a 
balanced copyright policy to both their cultural and economic policies, but 
they are increasingly willing to treat intellectual property as little more 
than a bargaining chip as part of broader negotiation. Since most trade 
deals are judged by an analysis of the bottom-line, economic benefits that 
result from the agreement, and since quantifying the negative impact of 
excessive copyright controls is difficult, the policy implications of 
including copyright within trade agreements is often dismissed as 

Although Canada has already concluded a free trade agreement with the 
United States, it is not spared from this latest trend. Current drafts of 
the Free Trade Area of the Americas Agreement, which would broaden the 
North American Free Trade Agreement to include countries such as Chile, 
feature provisions that mandate stronger copyright protections. If those 
provisions remain intact, copyright policy may be altered not through the 
traditional policy making process, but rather via international trade 

This week, a Canadian Heritage committee will commence hearings into 
Canada's copyright policy agenda for the next five years. While the 
committee will carefully consider dozens of submissions on every aspect of 
potential copyright reform, lurking in the background may be the 
realization that Canadian copyright concerns may ultimately amount to 
little more than an issue to be sacrificed at
the negotiation table for gains to fisheries, forestry, and farmers.
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 and (mgeist [AT]
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
Technology Counsel, Osler, Hoskin & Harcourt LLP
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist _AT_    

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