This year s report is most notable for its comment on Canadas copyright reform plan, announced just last month. The USTR has the following to say about Canada:
"Canada is being maintained on the Special 301 Watch List in 2005, and the United States will conduct an out of cycle review to monitor Canadas progress on IPR issues during the upcoming year. We urge Canada to ratify and implement the WIPO Internet Treaties as soon as possible, and to reform its copyright law so that it provides adequate and effective protection of copyrighted works in the digital environment. The Canadian court decision finding that making files available for copying on a peer to peer file sharing service cannot give rise to liability for infringement under existing Canadian copyright law underscores the need for Canada to join nearly all other developed countries in implementing the WIPO Internet Treaties. The U.S. copyright industry is concerned about proposed copyright legislation regarding technological protection measures and internet service provider (ISP) liability, which if passed, would appear to be a departure from the requirements of the WIPO Internet Treaties as well as the international standards adopted by most OECD countries in the world. The United States urges Canada to adopt legislation that is consistent with the WIPO Internet Treaties and is in line with the international standards of most developed countries. Specifically, we encourage Canada to join the strong international consensus by adopting copyright legislation that provides comprehensive protection to copyrighted works in the digital environment, by outlawing trafficking in devices to circumvent technological protection measures, and by establishing a "notice and takedown" system to encourage cooperation by ISPs in combating online infringements. It also is imperative that Canada improve its enforcement system so that it can stop the extensive trade in counterfeit and pirated products, as well as curb the amount of transshipped and transiting goods in Canada. The United States also urges Canada to enact legislation that would provide a stronger border enforcement system by giving its customs officers greater authority to seize products suspected of being pirated or counterfeit. We also encourage greater cooperation between Customs and the Royal Canadian Mounted Police in enforcement matters, and encourage Canada to provide additional resources and training to its customs officers and domestic law enforcement personnel. Canada s border measures continue to be a serious concern for IP owners. With respect to data protection, we recognize that Canada has taken positive steps to improve its data protection regime. The U.S. pharmaceutical industry is concerned about certain aspects of the proposed regulations. The United States will use the out of cycle review to monitor Canada s progress in providing an adequate and effective IPR protection regime that is consistent with its international obligations and advanced level of economic development, including improved border enforcement and full implementation of data protection."
What to take away from this? Not surprisingly, Canada s balanced proposal for copyright reform does not leave the U.S. copyright industries particularly happy. It isn t just that they want Canada to implement the WIPO Internet treaties, they want us to implement a Canadian version of the DMCA. They interestingly question whether the Canadian plan meets WIPO standards given the exclusion of devices from our anti circumvention provisions. I think a plain reading of the WIPO Internet treaties suggests that it does. Meeting the U.S. standard is, of course, an entirely different matter.
Further, the U.S. also objects to the proposed notice and notice system for ISPs. Again, there is no surprise here. Notice and takedown may be completely ineffective, but it is the U.S. system so presumably they would like everyone to adopt it.
This represents the first shot across the Canadian bow. If history is any indicator, the copyright reform plan is going to face an onslaught of U.S. backed lobbying for stronger protections in the months ahead.
One side note for those new to these issues the references to data protection do not refer to privacy, which is not a big issue for the U.S. these days.