World's Leading Tech and Internet Companies: Don't Blame Canada on Copyright
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Friday February 19, 2010
The Computer & Communications Industry Association, which includes a who's who of the tech world including Microsoft, Google, T-Mobile, Fujitsu, AMD, eBay, Intuit, Oracle, and Yahoo, have issued a strong defense of current Canadian copyright law, arguing that the U.S. is wrong to place Canada on the annual Special 301 list. The CCIA notes that including Canada undermines the credibility of the process, stating "Canada’s current copyright law and practice clearly satisfy the statutory 'adequate and effective' standard. Indeed, in a number respects, Canada's laws are more protective of creators than those of the United States."
The defense, which was submitted to the U.S. government, is precisely the kind of defense that Canadian officials should be making when confronted with fear-mongering from the usual suspects about the state of Canadian copyright law. That it is the world's leading technology companies speaking out should send a strong signal to Industry Minister Tony Clement and Canadian Heritage Minister James Moore about how Canadian law is actually viewed by leading companies as they craft copyright reforms and develop a national digital strategy.
The CCIA raises several issues in countering the claims that Canada belongs on the list.
With respect to the implementation of the WIPO Internet treaties, it notes:
watch-listing one nation for non-ratification of the WIPO Internet treaties would seem to require watch-listing all non-members of the WIPO Internet treaties. The European Union, for example, only just ratified the Internet treaties late in 2009, and by such logic was presumably as much a haven for pirates as Canada until that time. There is, therefore, no basis for USTR to conclude that any country does not provide adequate and effective protection based on non-ratification of any treaty: “adequate and effective protection” of intellectual property rights, by the plain, defined meaning of those terms, goes to the extent to which there is functional legal protection for particular rights under domestic law, not whether a country has taken action on a treaty.
The CCIA continues with specific analysis of the absence of anti-circumvention legislation, stating that "policy disagreements over implementation of protection for technological measures do not constitute inadequate or ineffective protection,""the lack of a right against circumventing TPMs used to prevent copying of copyrighted works cannot form the basis for a failure to provide adequate and effective rights," and "neither Canada nor any other country is required to implement any particular means of preventing copying, and most assuredly not a right once removed from copying: circumventing a technological lock."
The CCIA also address Canada's notice-and-notice system, countering claims that the U.S.-style notice-and-takedown is required:
The Special 301 process is not a vehicle to remake the world in the image of the DMCA, a world in which millions of automated cease-and-desist requests based on computer-generated allegations automatically trigger the blocking and take down of material, including of lawfully posted material, all without any due process or any judicial involvement. Concerns about unauthorized use of copyrighted works cannot be allowed to result in the sacrifice of fundamental values that are the hallmarks of civilized countries. Canada’s system of dealing with the online use and dissemination of material, including copyrighted material, is more than adequate and effective; it is a thoughtful, and in a number of cases, superior way of resolving disputes. Notice and notice cannot form the basis for invoking procedures in the Trade Act.
The submission concludes by noting that Canadian copyright law is more protective of creators in some respects, pointing specifically to the existence of moral rights and the limitations of fair dealing when compared to the U.S. fair use provision.
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Friday February 19, 2010