USTR 2007 Special 301 Report: accepting the good while rejecting the bad.

Often debates about Copyright, including recommendations from the United States Trade Representative in the Special 301 report and the 1996 WIPO anti-Internet treaties, are discussed in an all-or-nothing way. While ratification of the treaties would be an "all" situation and thus should be rejected (we have no obligation to ratify these treaties), that isn't to say that all clauses of these proposals should be rejected.

Canada is mentioned in only a few places in the Special 301 report. The first is to talk about PCT issues included as part of the controversial Security and Prosperity Partnership (SPP) between the USA, Canada and Mexico. It also discusses how there will be "expanded dialogues" (more protectionist lobbying) with Canada and other countries.

Canada then has a specific section of the report, which I will include in full.

Canada is being retained on the Watch List in 2007. The United States commends Canada for issuing regulations correcting deficiencies in its system for protecting against unfair commercial use pharmaceutical data generated to obtain marketing approval. The United States notes our continuing concerns, however, with Canada's failure to ratify and implement the WIPO Internet Treaties and its failure to prohibit the unauthorized camcordering of films in movie theaters. The United States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the amount of infringing products transshipped and transiting through Canada. Canada's weak border measures continue to be a serious concern for IP owners. The United States hopes that Canada will implement legislative changes to provide a stronger border enforcement system by giving its customs officers the authority to seize products suspected of being pirated or counterfeit without the need for a court order. Greater cooperation between Canadian Customs and the Royal Canadian Mounted Police would enhance IPR enforcement, as would the provision of additional resources and training to customs officers and domestic law enforcement personnel. The United States will continue to monitor Canada's progress in providing an adequate and effective IPR protection regime that is consistent with its international obligations and its advanced level of economic development, including improved border enforcement, near term ratification and implementation of the WIPO Internet Treaties, and efforts to stop unauthorized camcordering of films in movie theaters.

Lets start with some basic things where they are wrong.

Signing a treaty is to ratification like dating is to marriage. At the time Canada considered signing the treaties, then-Canadian Heritage Minister Sheila Copps was advised that "international convention is such that signing in no way binds Canada to ratify the treaties. It is a symbolic gesture." The false claim repeated often by the USTR and US-based lobbiests must stop as it is clearly dishonest.

The most controversial aspect of the 1996 treaties relates to the legalization and legal protection of "Technical Protection Measures" abused by or on behalf of copyright holders. The underlying question that these provisions ask is us this: Should non-professionals be allowed to own and control technologies capable of recording, editing, copying and communicating content? If you want to protect the rights of private citizens to participate in culture (UN Universal Declaration of Human Rights article 27(1)), and protect the rights of technology owners and the interests of software authors, you will reject these provisions. If you think that protecting the outdated business models of the major labels and major studios from legitimate competition should be allowed to trump human rights, then you will be a proponent of these provisions.

PCT enforcement is something that benefits private individuals, and therefore should be the obligation of the beneficiaries to enforce. I strongly disagree with the outsourcing of the costs of this private matter onto the public with the proposal to have publicly paid officials, rather than copyright holders, to be taking action. As an example, CRIA often pushes this type of rhetoric even though it was effectively given a blueprint by the Federal Court and Federal Court of Appeal as to the amount of evidence they would need to bring to the courts. They have refused to sue, knowing that it is bad public relations, and now wants to pass the buck onto Canadian law enforcement to be the "bad guy" on their behalf. This to is entirely dishonest of them.

Determining whether something infringes exclusive rights is not trivial, and thus it is inappropriate to have intermediaries trying to determine whether material is infringing without the involvement of the courts. This flawed thinking comes from the USA in a number of forms, such as their harmful suggestion that customs offers be able to seize material without court orders, or via their ISP liability regime (Claim and Censor, or Notice and Take-down) which encourages technical intermediaries to take-down allegedly infringing material without a court order. This is again the case where the USTR and the narrow special interests they are representing are being dishonest about the alleged harm of copyright infringement when compared to the harm of falsely blocking non-infringing material.

There are some things that are good that we should consider adopting.

While I don't agree with the focus on camcordering in theaters, I believe that we do need laws to more generally help business and private owners to disallow recording devices. The City of Ottawa owned pools have signs as you enter the change rooms prohibiting the use of recording devices, and strong legislation to punish anyone who breaks this privacy-protecting rule should exist. The same law that protects the privacy of people in change rooms can also be used to protect the interests of copyright holders. Copyright holders would have a ban on recording devices within theaters as part of their contract with the theaters, and the theaters would have a strongly legally protected right to ban recording devices from their theaters. We historically had laws prohibiting "wiretapping" which needs to be expanded to include all recording devices (Video is seen by citizens to be more personal than audio) and not be limited to only the government (private-sector infringement of our rights is still an infringement of our rights). We don't need every tool that a copyright holder might use to protect their rights to be embedded in the copyright act. This only bloats an already excessively complex act that needs to have "clarifying and simplifying the Act" put as a primary goal of any amendments changes.

The 1996 WIPO treaties also have a concept called "Right of Communication to the Public" that clarifies that it includes on-demand communication "including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them". While there are some lobbiests trying to overly complicate this into some sort of new "making available" right, this could be interpreted as a minor update to our existing "Communication to the public by telecommunications" by adding clarifications that the sender is still liable even if the recipient determines the place and time of the reception. This is one modernization of Canadian law which the recording industry has called for that I agree would be helpful.

The USA also has a Fair Use regime which allows the law to much better handle technological advancements than our extremely limited Fair Dealings regime. It was this Fair Use regime that allowed US courts to clarify the legality of the personal use of the VCR. It is time that Canada joined the USA by implementing our own living Fair Use regime in Canada.

See also: Michael Geist, KEI Statement on USTR 301 list reference to Thailand, IP-Watch: USTR Toughens IP Stance On China, Russia, Thailand; Praises EU, Brazil