The International Intellectual Property Alliance – a group that brings together several U.S. lobby groups including the MPAA, RIAA, BSA, the ESA, and publisher groups, has just released its Section 301 recommendations, a submission to the U.S. Trade Representative that frequently serves as a blueprint for U.S. commentary on intellectual property protection around the world. The list covers 60 countries, including most of the world's leading economies. The USTR report, which will be released in April, will likely mirror the IIPA recommendations.
Canada figures prominently on this list and indeed this year it is expected that the U.S. will escalate the pressure by placing us on the Priority Watch List. The Globe and Mail gives the lobby groups' recommendations front page coverage with dire warnings for Canada (the coverage is matched in other countries – see Taiwan and Thailand as examples). The IIPA submission on Canada includes a litany of complaints, including the failure to implement the WIPO Internet Treaties, the need for ISPs to play a greater role in dealing with copyright infringement, the need for a camcorder law, and the need for greater enforcement activity. The IIPA report is particularly critical of Bill C-60, arguing that Canada should "jettison" the approach in favour of something, well, like the U.S. has implemented. In fact, it incorrectly argues that full compliance with the WIPO Internet treaties requires legislation that matches the DMCA (full TPM protection, ban on devices that can be used to circumvent, limited exceptions). It also wants the scope of the private copying limited and clear liability for P2P services established. In fact, it even attacks Bill C-60's tepid distance learning and library loan provisions, arguing that they "would have had a significant detrimental impact on publishers of scientific, technical, and medical materials."
While the IIPA recommendations have predictably led to negative, overblown press coverage in Canada, a little context is needed. The reality is that the majority of the world's biggest economies face similar criticism, including:
- Japan is criticized for a wide range of issues including the absence of statutory damages, copyright term extension, stronger TPM protection, narrowing private use exceptions, and the establishment of camcording legislation
- Sweden receives special mention for widespread Internet piracy and being host to thePirateBay.org
- New Zealand is criticized for its copyright reform bill, which, much like Canada's Bill C-60, adopts a more balanced approach to TPMs. For its effort, the government is also incorrectly told that the proposal "fall far short of meeting international minimum standards." Moreover, the bill's time shifting provisions are criticized, despite the fact that the U.S. has far more liberal fair use provisions.
- Switzerland is criticized for its TPM approach, which apparently does not meet the standard in the EUCD or the DMCA, along with a broad private copying provision and the need for camcording legislation.
- South Africa is criticized for failing to sign the WIPO Internet treaties
- Hong Kong is criticized for its approach on TPMs and for proposing new exceptions for educational purposes. It is also urged to extend the term of copyright.
- South Korea is criticized for its TPM approach, education exceptions, its private copying system, and for failing to extend the term of copyright.
- Israel is criticized for failing to implement TPM legislation and for considering a fair use provision that mirrors the U.S. approach (the IIPA claims this might be viewed by the public as a "free ticket to copy.")
- Mexico is criticized for its TPM approach and for the absence of an ISP notice and takedown system
- Italy is criticized for doubt about its TPM approach and for failing to establish an ISP notice and takedown system
- Brazil is criticized for failing to ratify the WIPO Internet treaties and for granting exceptions to university students
- Greece is criticized for making it difficult to obtain the personal identities of ISP subscribers and for levying a surcharge at movie theatres that are used to support Greek films
- Spain is criticized for failing to place sufficient liability on ISPs for activity on their networks
- India is criticized for its TPM provisions and "overly broad" exceptions
These are just fourteen examples – there are dozens more countries on the list, including many developing countries, each invariably criticized for not adopting the DMCA, not extending the term of copyright, not throwing enough people in jail, or creating too many exceptions to support education and other societal goals. In fact, the majority of the world's population finds itself on the list, with 23 of the world's 30 most populous countries targeted for criticism (the exceptions are Germany, Ethiopia, Iran, France, the UK, Congo, and Myanmar).
The U.S. approach is quite clearly one of "do what I say, not what I do" (fair use is good for the U.S., but no one else), advising country after country that it does not meet international TPM standards (perhaps it is the U.S. that is not meeting emerging international standards), and criticizing national attempts to improve education or culture through exceptions or funding programs. Moreover, it is very clear that the U.S. lobby groups are never satisfied as even those countries that have ratified the WIPO treaties or entered into detailed free trade agreements with the U.S. that include IP provisions still find themselves criticized for not doing enough.
Canadians should not be deceived into thinking that our laws are failing to meet an international standard, no matter what U.S. lobby groups or the Globe and Mail say. Rather, Canadians should know that our approach – and the criticism that it inevitably brings from the U.S. – places us in very good company.