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The US Intellectual Property Watch List: The Canadian Perspective

To the surprise of absolutely no one, the U.S. has again placed Canada on its Special 301 Priority Watch List, implausibly claiming that Canada’s intellectual property laws are seriously deficient and on par with countries such as China and Russia. The U.S. “analysis” is short and to the point:

Canada remains on the Priority Watch List. The United States continues to urge Canada to implement its previous commitments to improve its legal framework for IPR protection and enforcement. Unfortunately, Canadian efforts in 2010 to enact long-awaited copyright legislation were unsuccessful. The United States encourages Canada to make the enactment of copyright legislation that addresses the challenges of piracy over the Internet, including by fully implementing the WIPO Internet Treaties, a priority for its new government. The United States encourages Canada to provide for deterrent-level sentences to be imposed for IPR violations, as well as to strengthen enforcement efforts, including at the border. Canada should provide its Customs officials with ex officio authority to effectively stop the transit of counterfeit and pirated products through its territory. U.S. stakeholders have also expressed strong concerns about Canada’s administrative process for reviewing the regulatory approval of pharmaceutical products, as well as limitations in Canada’s trademark regime. The United States appreciates the high level of cooperation between the Canadian and U.S. Governments, and looks forward to continuing engagement on these important issues.

So Canada – a country with intellectual property protections that have been ranked ahead of the U.S., has many copyright rules more restrictive than the U.S., and digital markets growing faster than the U.S. – is once again placed by the U.S. on the watch list while other countries with similar laws are not.

This year’s inclusion is somewhat different, however. The Canadian position on the validity of the list no doubt remains the same as Canadian officials have consistently rejected the entire process as an industry-driven analysis without merit. In fact, according to records I recently obtained under the Access to Information Act, Canadian officials prepared a full defence of Canadian law for submission to the Special 301 process in 2009 but ultimately decided against submitting it.

More telling are the U.S. cables released by Wikileaks that conclusively demonstrate how the entire process is nothing more than a calculated guess at how much pressure can constructively be brought on foreign governments. The placement on the list ultimately says little about the strength of a country’s laws. Rather, it is about the strength of the national government and the likelihood that it will cave to U.S. pressure by inclusion on Special 301.

In 2007, the U.S. embassy in Ottawa concluded:

Despite optimism after the Conservative Party took power in early 2006, Canada’s track record on strengthening IPR protection has remained  disappointing. With one notable exception regarding pharmaceutical data protection, the GOC has made no  discernable progress towards addressing USG concerns stated in last year’s Special 301 report. These include updating  Canada’s out-of-date copyright laws, ratifying and  implementing the WIPO Internet Treaties that it signed in  1997, and improving lackluster IPR enforcement. In addition, despite growing awareness that Canada has become a major international source for pirated DVD movies from U.S.  studios, the GOC appears disinclined towards criminalizing the act of camcording in theaters. In essence, there have  been numerous meetings, numerous Canadian promises, and  seemingly no substantive action on the part of the GOC.  Therefore, the Embassy recommends that unless there is substantial progress by the GOC in the next few weeks, Canada should be elevated to the Special 301 Priority Watch list.

The advice was rejected – Canadian remained on the Watch List and was not elevated.

A year later, the Embassy again recommended elevation to the Priority Watch List:

We believe that the minority Conservative  government is committed to improving the protection and  enforcement of intellectual property rights. However, given  the GOC’s failure so far to introduce a copyright reform  bill in Parliament – and the lack of significant steps to  strengthen IPR enforcement and protection on the border – the  Embassy reluctantly recommends that Canada be elevated to  Special 301 Priority Watch List. We would strongly recommend  retaining Canada on the Watch List if the government  introduces its copyright bill into the House of Commons  before the end of April. (Comment: Elevation of Canada to the Priority Watch List could adversely affect prospects for the introduction and passage of a copyright bill in  Parliament. End comment)

Once again, that advice was rejected. In 2009, the Embassy acknowledged progress but still sought inclusion on the list, seemingly suggesting that Canada stay at the Watch list level.

Although there has been no legislative change since last year when Mission Canada recommended that Canada be elevated to the Special 301 Priority Watch List, given Canada’s good faith efforts to address IPR protection, Mission Canada recommends that Canada remain on the Special 301 Watch List.

Instead, the U.S. elevated Canada to the Priority Watch List.  In other words, the U.S. Embassy was three for three – each time its recommendations were rejected in Washington, which presumably factored in its own political calculus.

What is left is a “name and shame” approach that brings shame primarily on the U.S. as the bully tactics have little correlation to a factual analysis of the state of Canadian intellectual property protection.  The lesson for Canada is clear.  With a majority government in power, it should have the strength to address copyright laws in the national interest, even when that means saying no to some U.S. demands.  Indeed, the history of the Special 301 list shows that no matter what Canada does, the U.S. will always come back demanding more.

27 Comments

  1. So which is it, Michael?
    Michael Geist writes “So Canada – a country with intellectual property protections that have been ranked ahead of the U.S., has many copyright rules more restrictive than the U.S., and digital markets growing faster than the U.S.”

    So Michael, when will you stop telling Canadians that we NEED to update our copyright laws? We need to abolish them. Any attempt to “update” them by this government will only try to strengthen them, which is NOT the way we need to go.

  2. I fully expect the Conservative Government to enact exactly what the US wants them to with little regard to how bad something like it has gone in the US, and to make it worse for no real reason.

  3. It’s not the Canada Government for God sake, it’s the Canadian PEOPLE that don’t want these copyright laws any stricter, unfair, you name it. It’s the CANADIAN PEOPLE! They US Govt not only blatantly ignores its own ppl but now it wants to ignore that on earlier polls the CANADIAN PEOPLE decided they didn’t want such laws passed?

    Seriously, what are the Americans doing? They should be going Egypt style ASAP! They haven’t moved an inch to stop financial speculation as the one that lead to the subprime crisis, they aren’t addressing internal problems as they should and WHAT THE HECK ARE THE AMERICANS DOING? Letting their Govt run freely under the power of money that’s what they are doing.

  4. By the time the cons are done, Canadians are going to be begging for only C-32 worth of damage.

  5. U. S. Citizen says:

    Tell The US Gov’t Where To Put Their Intellectual Property Laws
    Yes. I hope Canada continues to tell the United States Government exactly what the people of the United States is telling the United States Government.

    There’s too many laws of that sort right now!

    LEAVE THEM ALONE! If anything, repeal some that are already on the books! DON’T PASS MORE!

    And certainly stop bullying other countries into accepting the stupid laws you’ve foisted upon your own people without THEIR consent!!!!!!!

  6. Sixth Estate says:

    It seems to me that having a minority government is more of an obstacle to U.S. demands in this area than having a majority government favouring Canadian adoption of American regulations.

  7. Anarchist Philathrapist says:

    With the harper regime
    As i said earlier, i can’t even begin to imagine the timing of this report. I may sound like a conspiracy theorist but lets face it, harper and his ties to the americans hasn’t really proven wrong.

    The only sad part is, harper may have saved the oil industry, but he will destroy the IT industry. The internet is the closest thing we have to natural evolution of technology, and what we’re getting are companies and governments who want to control everything, and keep all the money for them selves.

    The more I see sh!t like this, the more I truly thing the bourgeoisie / proletariat conflict never really ended, the middle and lower class is still being controlled by the upper class.

  8. Anarchist Philathrapist says:

    *proven us wrong*

  9. Bill MacEachern says:

    I fully expect…
    to ignore any asshat laws designed to criminalize a large portion of society to the benefit of a particular few foreign special interests.


  10. Anything that criminalizes more than 10% (A VERY conservative estimate) of the population is unenforceable and useless. Hopefully Moore will leave and they’ll get someone in there who has a clue about technology. It’s really the only hope we have at this point.

  11. The Yanks with their ??FFIA can go screw themselves into the sticking place.

    Goddam Yankee bullies wanting to rule the whole f’ing world.

    With all the R&D required on pharmaceuticals, there is only a 20 year protection here. Then the item no longer is protected.

    What’s with those lazy, money-grubbing idiots wanting copyright protection for ever and ever, amen?!?!?!?!

  12. Chris H. says:

    The USG is not satisfied after having screwed up their own country; now they want to screw up our country too…

  13. Stephen MacDougall says:

    Doing something right
    Being placed on the Special 301 List makes me feel good that we are doing something right with our copyright laws. It will be a sad day when the USA government is happy with our copyright laws and takes us off the list.

  14. USA tops Special 404 Public Domain Impediment Watch List
    To the surprise of absolutely no one, the U.N. has again placed the United States of America on its Special 404 Public Domain Impediment Watch List, plausibly claiming that the USA’s intellectual property laws are seriously deficient and deprive its citizens of free and unimpeded access to cultural works that should have passed into the public domain decades ago.

    Why don’t we have such a 404 (object not found) Watch List? Why don’t we have any Champions of the Public Domain? I think it’s better to battle for something (rich public domain) than against something. You’re no longer ‘just’ fighting like a Don Quixote against the content megacorps, you’re fighting to get society to get access to a rich public domain of culture, be it 5 decades old, but still culture, which is a noble cause.

  15. Crockett says:

    No you can’t have my milk money …
    Honestly, the best way to deal with a bully is to bop him in the nose and tell him to run home to Mommy. Some will say we have to kowtow to the US else we will incur trade barriers. Last time I checked we have a huge amount of natural resources that the US needs, and from a stable close by ally which is a increasing rarity in the world today. Now that the Cons have a majority it can go two ways; they can cave to US demands and do their bidding or, they can without fear of interference from other Canadian parties actually govern for the greater interest of THIS country.

    Harper, you have a new strength given by the Canadian people, don’t abuse it.

  16. Kowtow
    Of course we’re going to kowtow to the US, we ALWAYS do. Canadian politicians should be issued knee-pads and Vaseline as soon as they step in to office. Our government is a bloody joke.

    Under pressure from the US, we’ll implement mandatory tracking and C-32, perhaps unaltered, but probably worse, removing the limits on statutory damages and other provisions that are there protect civil infringement from corporate-level law suits and copyright trolls. After all, they don’t have to try to appease opposition parties any more and they were NEVER interested in public opinion.

    Need I remind everyone of Harper’s statement to Moore and/or Clement regarding C-32. Something to the effect of, “I don’t care what you do, as long as the US is happy!!!”

  17. end user says:

    Someone needs to set up a website that lists the 301 list countries and compares their CR laws in a table to the US laws for a nice comparison.

  18. @Crockett:
    “Harper, you have a new strength given by the Canadian people, don’t abuse it”
    lol, Harper already showed everyone conclusively he is a complete tyrant and they voted him in anyway.. We deserve what we get now.

  19. Anarchist Philathrapist says:

    @Crade

    “We deserve what we get now. ”

    This is no different than the americans voting in bush twice in a row. Get a good look at their way of life, cause harper is waving their flag.

  20. Crockett says:

    As long as the US us happy …
    I am going to 3 sizes too snell optimist hat on and see what the cons will do next. I am prepared to be disappointed but would really like to be surprised ūüėÄ

  21. When the US says “jump”, Harper will only ask, “how high”.

  22. Since we are already “copyright terrorists” in their eyes…
    Let’s be the best damn ones we can be >:D
    *torrents something*

  23. Esspwebbb says:

    Buy Essays
    USA has underestimated Canada by putting it on Priority Watch List.
    Buy Essays

  24. A Random Test
    You know…earlier in the week, after the Special 301 report was released, I decided to put it to the test. I wanted to see who was downloading so I selected a random torrent of copyrighted material, but printed material, stuff that would not hit the CRIA/MPAA/RIAA radar. I don’t want a letter from my ISP for doing such a test. Now a program called uTorrent will actually tell you where your peers are located in the world. I selected a large torrent at over 2G because I wanted to monitor the pattern over time, not just at a single point in time. There were well over 100 peers in the swarm, up to 150+ at times, at most, any time I looked, 2 were Canadians, a couple from Italy, one from Australia, New Zealand, Sweden and a few others from other random countries, but a vast majority of them were from the US…at least 85%, or more. I challenge anyone to do this with ANY English (Either spoken, subtitled or written) torrent and I’ll bet you’ll see the same pattern. Obviously, a Dutch or German-only torrent will have little appeal in primarily English speaking countries.

    Now, who really should be on the watch list?

  25. John Kerr says:

    Seven years waiting?
    So the recording industry wants Canada to change our Copyright Laws. I do not like the digital locks component of the Copyright Act at all. Why do we need digital locks?

    At least seven years after the recording industry demanded changes so that they can stay in business, well, they are still in business. There are two huge record stores on Yonge Street in Downtown Toronto. The little independent store in the little city of Guelph, Ontario is still in business as well. Online sales are doing very well also.

    We do not need digital lock legislation. We need tough penalties to counterfeiters, we need the entertainment industry to streamline / control its distribution so that when I buy a CD or DVD in a store I know that it is legit.

    Enough of this nonsense.


  26. @Ianme: “Now, who really should be on the watch list? ”

    Quod licet Iovi, non licet bovi.

    Nap. ūüôā

  27. @Nap
    NICE!! I like the bull metaphor. Unfortunately, this bull is trying to trample us dead rather than seduce us.