The U.S. Trade Representative is conducting a hearing today on the Special 301 report, its annual list of countries it claims have inadequate intellectual property protections. Several countries will appear alongside many lobby groups. I’ve previously posted on how the report from the IIPA, which represents the movie, music, software and publishing industries, badly misstates Canadian law. Indeed, with recent court decisions, Canada now has one of the toughest anti-piracy rules in the world.
I recently obtained documents under the Access to Information Act that confirm the Canadian government’s rejection of the Special 301 process. Canada will not bother appearing today largely because it rejects the entire process. According to a memorandum drafted for Canadian Heritage Minister Melanie Joly after last years’ report:
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Canada last overhauled its copyright law in 2012, bringing to a conclusion more than a decade of failed bills and lobbying pressure. The public debate over the Copyright Modernization Act was often framed by disputed claims that Canada was weak on piracy, with critics arguing that updated laws were needed to crack down on copyright infringement. As the government prepares to conduct a statutorily-mandated review of the law later this year, the landscape has shifted dramatically with court cases and industry data confirming that Canada is now home to some of the toughest anti-piracy rules in the world.
My Globe and Mail column notes that the change in Canadian law is best exemplified by a ruling last week from the Federal Court of Canada involving the sale and distribution of “modchips”, which can be used to circumvent digital controls on video game consoles. Nintendo filed a lawsuit against a modchip retailer in 2016, arguing that the distribution of modchips violated the law, even without any evidence of actual copying.
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In one of his first acts in office, U.S. President Donald Trump has signed an executive order withdrawing the United States from the Trans Pacific Partnership. With the U.S. out of the TPP, the agreement cannot take effect as it requires ratification from both the U.S. and Japan to do so. Last week, new International Trade Minister Francois-Philippe Champagne said that Canada would consider all its options with the remaining TPP countries, but the reality is that Canada should follow the U.S. lead and abandon the agreement.
The need for U.S. and Japanese ratification for the TPP to take effect is no accident. For most of the countries in the TPP, access to those two markets were the reason they were willing to sign in the first place. For example, Canada came late to the TPP negotiations in part because it saw limited value in better access to markets such as Australia, Vietnam, Malaysia, and New Zealand. Trade with those countries is relatively minor and would not justify making significant policy concessions. The decision to join the negotiations was sparked by concern that preferential access to the U.S. would be undermined if Canada was left out of the TPP and by a desire to strike a trade agreement with Japan. Once Japan shifted its focus from bi-lateral discussions to the TPP, Canada pushed for inclusion in the deal. With the U.S. out, one of the foundational arguments for joining the TPP is gone.
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From the moment the Liberal government took office last fall, it left no doubt that innovation was going to be a top priority. Gone was Industry Canada, replaced by the Ministry of Innovation, Science, and Economic Development, with Navdeep Bains, a close confidant of Prime Minister Justin Trudeau, installed as the responsible minister.
Last week’s budget continued the emphasis on innovation, promising $150 million in 2017-2018 for an innovation agenda. The full details have yet to be revealed, but the budget also added tax reforms to create investment incentives (and quietly dropped a tax change that would have hurt start-up companies), support for innovation clusters, and increased dollars for scientific research.
My weekly technology law column (Toronto Star version, homepage version) notes that the government says its goal is to make Canada a “centre of global innovation”, a significant challenge given that studies persistently point to Canada’s innovation gap. Last year, the Science, Technology and Innovation Council (STIC), a government-backed group, concluded that Canada “was not globally competitive” and that “it is falling further behind global competitors and facing a widening gap with the world’s top five performing countries.”
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The 2012 Canadian copyright reform law featured several “made in Canada” provisions that the Conservative government touted as striking a better balance than rules found elsewhere. At the top of the list was the notice-and-notice system for Internet providers. Minister James Moore (then of Canadian Heritage and later Industry) specifically cited the Canadian system as an example of how Canada had “rejected the American style approaches on massive parts of our legislation.” Yet a close reading of the leaked version of the Trans Pacific Partnership intellectual property chapter suggests that Canada may just have agreed to establish a copyright takedown system.
The preservation of the notice-and-notice was a top copyright priority for the Canadian government, so much so that it caved on copyright term extension and implemented digital lock rules that were widely criticized by the Canadian public. However, the negotiators may have failed to keep a notice-and-takedown system out of Canada. Section I of the copyright chapter creates a U.S. style notice-and-takedown system. The Canadian solution was to create a special annex that provides an alternative to the U.S. approach. While the annex was designed specifically for Canada, it would appear that it fails to prevent copyright takedowns from coming to Canada.
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