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Will copyright treaty benefit Canadians?

As the Internet began to emerge as a powerful new communication tool in the mid-1990s, the World Intellectual Property Organization (WIPO), a United Nations agency, moved quickly to establish two new treaties designed to address the copyright complications created by the online world.


The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, commonly referred to as the WIPO Internet treaties, were formally adopted in late 1996.


The WIPO Internet treaties finally took effect last year after reaching the thirty-country ratification mark.


While dozens of countries may sign a treaty when it is first introduced, a treaty only becomes effective once a certain number of countries take the positive step of ratification by amending their national law to give the treaty full effect.


Today, the number of ratifications stands at 42 with the United States and Japan the two most notable countries on the ratification list.


The remainder of the list is comprised of countries such as Indonesia and the Ukraine, often cited as two leading sources of pirated music and software, as well as Burkina Faso, Gabon, Saint Lucia, and Togo, a group one Ottawa lawyer recently termed the "coalition of the billing."


Canada has thus far refrained from ratifying the treaties, though it has been government policy to do so since 1997.


Our slow movement toward ratification recently caught the attention of the House of Commons Standing Committee on Canadian Heritage, which has been conducting hearings on Canadian copyright policy over the past few weeks.


Late last month, the Committee presented its perspective on treaty ratification, recommending in the "strongest possible terms" to the responsible ministers that they instruct their officials to prepare draft legislation by February 10, 2004 in order that the government might ratify the treaties.


The Committee's recommendation represents a setback for Canadian copyright policy.


Rather than leaping toward ill-conceived copyright reform that would harm innovation and the Canadian public, our go-slow approach has enabled policy makers to view the mistakes of others, (notably the United States), and work toward crafting a Canadian policy that better reflects the national interest.


Left unstated in the Committee recommendation is the fact that ratification involves much more than merely introducing the treaties into national law.


Both treaties contain controversial provisions that, depending on how they are implemented, may fundamentally alter the copyright balance advocated by the Supreme Court of Canada.


In fact, many copyright experts have begun to express doubt that Canada should ratify the treaties at all.


While ratification clearly brings significant new obligations, the benefits to Canadian creators and consumers are more difficult to identify.


Moreover, even if Canada were to ratify, there is considerable room for interpreting how to do so. Canadian Heritage recently commissioned a study on technologies, known as technical protection measures, that enable content creators to better control their work.


While some believe that ratification requires the establishment of legal protection against those who seek to defeat technological measures, the study casts doubt on that conclusion.


Complicating matters even further is Canada's private copying regime, which critics argue harms Canadian retailers and software companies by establishing a levy on blank media such as audio-cassettes and blank CDs.


In a report issued last year, the Canadian government acknowledged that the private copying system may not be compliant with the WIPO Internet treaties.


In order to ensure that it is compliant, Canada would have to extend the benefits of the levy to sound recordings and performers from all countries that have ratified the treaty.


The cost of doing so would dramatically increase the levy, thereby resulting in even higher prices for blank CDs for Canadians.


"First mover advantage," an adage that suggests that there are great benefits to moving quickly and being the first to market a new product or service, may hold true in the e-commerce environment, but it is not necessarily the case in the policy world.


Canada has benefited by taking its time on WIPO Internet treaty ratification. The recent recommendation from the standing committee to fast-track the ratification process before all stakeholders have spoken would squander our last mover advantage and leave Canadian consumers to pay the price.

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