Last month, the IIPA, a lobby group representing a handful entertainment industries, released its annual submission to the United States Trade Representative criticizing the copyright laws of dozens of countries around the world. That submission will likely play an influential role in next month's USTR Special 301 Report. As usual, Canada was on their list, leading to the usual press coverage claiming that Canada is a laggard on copyright reform. While Canadian officials have criticized the USTR Special 301 report, to my knowledge the government has never made a formal submission defending Canadian policies.
This year, the USTR received 24 submissions, including comments from three countries – Israel, Poland, and Turkey (the USTR has posted the non-governmental submissions for the first time this year). The Israeli submission has been posted online and provides a great model for how countries should be defending their national interests. The submission, which characterizes the IIPA submission as containing the "usual inaccuracies and hyperbole," includes a great defense of Israeli copyright policy. For example, on the issue of anti-circumvention legislation it notes:
internal discussions on whether to implement TPM continue and in this respect the GOI [Government of Israel] notes that the experience with TPM around the world has not been uniform, nor has it achieved the results that many of its early promoters thought it would. Additionally, comments received by the Ministry of Justice following a "request" for comments on the subject of TPM, indicate that many several large authors' groups vehemently oppose TPM, while other right holders categories favor TPM. The critiques and criticism of TPM both from business model perspectives and from copyright perspectives are almost endless. Indeed, some content providers are already experimenting with non-encrypted access to content. Hence, the question of whether and in what manner to implement TPM is not straightforward and politically volatile.
If only Canadian officials were as forthcoming. Similarly, the Israeli submission defends its decision to implement a fair use provision within its copyright law, noting that:
The Berne "three step test" (Berne Article 9(2) and re-affirmed at Article 9 of the TRIPS Agreement) sets forth a binding international standard that is embodied in the new Copyright Law, and in particular in its "fair use" section (section 19) and exceptions sections. Neither Berne, nor TRIPS, requires that the exact language of a treaty general principle be copied verbatim into national legislation. Indeed, if that were the case then the IIPA would also have to claim that Section 107 "Fair Use" of the U.S. Copyright Act is in violation of Berne Article 9(2). Israel's new fair use section (section 19) follows Section 107 of the U.S. Act and is virtually identical therewith.
This points to the relative security Canada would face if it chose to implement a more flexible fair dealing provision. The Israeli submission makes a strong case that its inclusion on any USTR watch list is inappropriate. There is little doubt that Canada could make a similar case – question period cards prepared for Ministers often feature responses to similar criticisms. Given those views, why doesn't the Canadian government (or many other governments for that matter) follow the Israeli lead by standing up for its national interests?