My weekly technology law column (Toronto Star version, homepage version) examines the role that U.S. pressure played leading up to the introduction of Bill C-61 last week. I argue that the bill is the result of an intense public and private campaign waged by the U.S. government to pressure Canada into following its much-criticized digital copyright model. The U.S. pressure has intensified in recent years, particularly since there is a growing international trend toward greater copyright flexibility with countries such as Japan, New Zealand, and Israel either implementing or considering more flexible copyright standards.
The public campaign was obvious. U.S. Ambassador to Canada David Wilkins was outspoken on the copyright issue, characterizing Canadian copyright law as the weakest in the G7 (despite the World Economic Forum ranking it ahead of the U.S.). The U.S. Trade Representatives Office (USTR) made Canada a fixture on its Special 301 Watch list, an annual compilation of countries that the U.S. believes have sub-standard intellectual property laws. The full list contains nearly 50 countries accounting for 4.4 billion people or approximately 70 percent of the world's population. Most prominently, last year U.S. Senators Dianne Feinstein and John Cornyn, along with California Governor Arnold Schwarzenegger, escalated the rhetoric on Canadian movie piracy, leading to legislative reform that took just three weeks to complete.
The private campaign was even more important.
Sources say that emboldened by the successful campaign for anti-camcording legislation, U.S. officials upped the ante at the Security and Prosperity Partnership meeting in Montebello, Quebec last summer. Canadian officials arrived ready to talk about a series of economic concerns but were quickly rebuffed by their U.S. counterparts, who indicated that progress on other issues would depend upon action on the copyright file. Those demands were echoed earlier by the USTR, which, according to documents obtained under the Access to Information Act, made veiled threats about "thickening the border" between Canada and the U.S. if Canada refused to put copyright reform on the legislative agenda.
Faced with unrelenting U.S. pressure, the newly installed Industry Minister was presented with a mandate letter that required a copyright bill that would meet U.S. approval. The government promised copyright reform in the October 2007 Speech from the Throne and was set to follow through last December, only to pull back at the last hour in the face of mounting public concern.
In the months that followed, Prentice's next attempt to bring the copyright bill forward was stalled by internal cabinet concerns over how the bill would play out in public. The bill was then repackaged to include the new consumer-focused provisions such as the legalization of recording television shows and the new peer-to-peer download $500 damage award. The heart of the bill, however, remained largely unchanged since satisfying U.S. pressure remained priority number one. Just after 11:00 a.m. last Thursday, the U.S. got its Canadian copyright bill.