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Copyright Lobby Group Makes the Case for Flexible Digital Lock Rules

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Thursday February 17, 2011
The International Intellectual Property Association, which represents large copyright lobby groups such as the RIAA, MPAA, BSA, and ESA, has released its annual report on the state of intellectual property protection in dozens of countries around the world. The report is designed to convince the U.S. government to place countries on the "Special 301 watchlist". Canada is regularly cited, though Canadian officials have noted:

In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

This report is what Canadian officials have in mind when they talk about it being driven entirely by U.S. industry. There are many aspects worth noting in this year's report - the criticism of countries like Vietnam and the Philippines for encouraging the use of open source software (the Vietnamese program was established to help reduce software piracy), the criticism of Bill C-32's digital lock provision that allows cabinet to establish new exceptions (the IIPA would like any new exceptions to be both limited and for a limited time), and the near universal demand that countries spend millions of public dollars on increased policing, IP courts, and public education campaigns.

Of particular note, however, is the fact that the IIPA report provides a fairly convincing case that there is considerable flexibility in implementing the WIPO Internet treaty anti-circumvention rules.


The IIPA hopes to make the opposite case by claiming that country-after-country should amend their digital lock rules to make them more like the U.S. DMCA. Yet the picture that emerges is that dozens of countries around the world have rejected that DMCA approach in their effort to comply with digital lock requirements found in the WIPO Internet treaties. Rather, consistent with the flexible language found in the treaties, there are a wide range of implementation approaches. Note that the list includes countries in the European Union and OECD as well as countries that have acceded to WIPO Internet treaties or are part of the Anti-Counterfeiting Trade Agreement.

Countries cited by the IIPA include:
  • Argentina, which is a member of the WIPO Internet treaties but has not introduced anti-circumvention rules into its domestic law
  • Belarus, whose anti-circumvention rules do not cover trafficking in circumvention devices or access controls
  • Brazil, which has proposed anti-circumvention rules without covering both access and copy controls, without a prohibition on trafficking in circumvention devices, and without criminal remedies
  • Chile, which recently reformed its copyright law but did not include anti-circumvention measures
  • Greece, whose anti-circumvention rules do not cover both access and copyright controls or provide civil remedies for software programs
  • India, which has proposed anti-circumvention rules with a fair dealing circumvention exception, do not cover access controls, and do not cover trafficking in circumvention devices
  • Indonesia, which has joined the WIPO Internet treaties, but has not implemented anti-circumvention provisions
  • Israel, which has no anti-circumvention rules and has rightly asserted that there is a "lack of uniform implementation worldwide."
  • Kuwait, which has proposed anti-circumvention rules that allow circumvention for permitted purposes
  • Malaysia, which has proposed anti-circumvention rules that may not include access controls
  • Mexico, which has acceded to the WIPO Internet treaties but has not implemented anti-circumvention rules
  • the Philippines, which has one copyright reform bill with anti-circumvention rules that do not include access controls or cover trafficking in anti-circumvention devices
  • Poland, which acceded to the WIPO Internet treaties in 2003 and 2004, but whose anti-circumvention rules do not cover circumvention devices
  • Romania, whose anti-circumvention rules only cover circumvention devices, not acts of circumvention
  • Russia, which proposed anti-circumvention legislation in a November 2010 draft that includes many digital lock exceptions
  • Singapore, which the IIPA says needs stronger criminal penalties for violations of its anti-circumvention rules
  • Spain, whose courts have concluded that "devices primarily designed for purposes of circumvention are lawful when capable of some ancillary non-infringing use."
  • Switzerland, which implemented the WIPO Internet treaties in 2008 and has an circumvention exception for any "use permitted by law."
  • Thailand, which has created draft copyright legislation that may have excluded access controls from the anti-circumvention rules
  • Turkey, which joined the WIPO Internet treaties in 2008 but does not have anti-circumvention rules
  • Ukraine, which acceded to the WIPO Internet treaties in 2002 but whose anti-circumvention rules require proof of circumvention
  • Vietnam, which prohibits trafficking in circumvention devices but does not apply the provision to related rights
The IIPA does not include many other countries with anti-circumvention rules that differ from the U.S. model including ACTA partners New Zealand and Japan. The IIPA report provides a convincing case that the global community views the WIPO Internet treaties digital lock provisions as providing considerable flexibility in implementation. The notion that Canada faces a risk of adopting a flexible approach is undermined by the practices of countries in Europe, Asia, and the Americas, many of which have soundly rejected the U.S.-style DMCA system.

Comments (8)add comment

Graham J said:

...
From my Facebook share of this article:

"Geist takes the farce that is IIPA's "Special 301 watchlist" (which consistently paints Canada as a copyright no-man's land) and uses it to prove that C-32's anti-circumvention rules are too restrictive and that the world doesn't want DMCA. Did I mention this guy is my hero? :D"
February 17, 2011

Crockettt said:

Drip .. Drip ...
It's such a shame when actual facts and figures leak through the cheesecloth screen of the copyright lobbyists.
February 17, 2011

Anon-K said:

@Crockett
Yes... too bad when facts get in the way of a belief.

@Graham J: The Special 301 is a product of the USTR, not the IIPA. The IIPA presents their own report to the USTR in an effort to sway the USTR, and then uses the Special 301 to attempt to browbeat politicians in other countries. I get dizzy just thinking about it.
February 17, 2011

end user said:

...
Ok I got to ask, how much money is being spent on lining politicians pockets by this industry to basically have an almost unrestricted power to make new laws and pull reports out of their asses that are then taken seriously by the politicians.

Unreal... I too wish I could pull reports out of my ass and say liable/false/made up things with out a worry of being sued.
February 17, 2011

Napalm said:

...
I also like the lists of "most corrupt states" that US compiles. Bwahahaha.

Guys. These are just business tools.

Nap.
February 17, 2011

Irving said:

...
I'll be glad when the revolution finally arrives and we can tell these *#%#& to take their $##* back home, because we don't play that game in Canada.
February 17, 2011

end user said:

...
Of maybe the media companies know that the US financially up the creek so they are trying to force new laws onto other countries to prepare for the day when hell breaks loose in the US and their main consumer is broke with no disposable income.
February 17, 2011

Eric L. said:

...
Yes, we need outrageously strong anti-circumvention provisions. After all, content protection adds to product and development costs, is poorly designed, does great harm to "legit" customers, does nothing to stop unauthorized copying, and reduces demand of the products. Not to mention it can be abused for purposes that the set the stage for draconian restriction (i.e. trusted computing).
February 17, 2011

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