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’s 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 Trade 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 firstname.lastname@example.org or online at www.michaelgeist.ca.