Michael Geist

My weekly Law Bytes column (Toronto Star version, homepage version, Ottawa Citizen version) discusses this week's release of the USTR's Special 301 Report.  This year, it is a virtual certainty that Canada will receive special attention, with the U.S. claiming that the country has neglected to address critical issues and suggesting that it is rapidly emerging as a piracy haven.  I focus on three issues likely to generate criticism in the Special 301 report – the fact that Canada has not ratified the World Intellectual Property Organization's Internet treaties, extended the term of copyright by an additional 20 years, or introduced anti-camcording legislation designed to stem movie piracy.

Notwithstanding the pressure on Canada to act on these issues, even one-time U.S. supporters are beginning to admit that these policies are open to doubt. Last month, Bruce Lehman, who served as the Assistant Secretary of Commerce in the Clinton Administration where he was the chief architect of the WIPO Internet treaties, acknowledged that "our Clinton administration policies didn't work out very well."  Meanwhile, Marybeth Peters, the U.S. Registrar of Copyrights has noted that the U.S. extension of copyright was a "big mistake," and the President of the U.S. National Theater Owners Association has advised his members that notwithstanding the introduction of anti-camcording laws, unauthorized camcording in the U.S. is on the rise.

Not only are the policies suspect, but the USTR report should be seen for what it is – a biased analysis of Canadian law supported by a well-orchestrated lobby effort.  Since the mid-1990s, the USTR has placed intellectual property protection at the very top of its priority list.  As a result, dozens of countries have entered into trade agreements with the U.S. in which they undertake to implement U.S. style intellectual property protections. 

Canada has not faced similar trade pressures – the North American Free Trade Agreement pre-dates the shift in USTR priorities – yet it has not been spared intense U.S. lobbying.

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