The United States released its annual report on the state of global intellectual-property protections.
The "Special 301 Report," named after the legislative provision mandating the annual review by the U.S. Trade Representative, places countries deemed to have insufficient protections on either a "Watch List" or "Priority Watch List." Inclusion on the Priority Watch List is particularly troublesome, because that may lead to U.S. trade sanctions.
The U.S. deemed Canada's intellectual-property laws insufficient for the 11th consecutive year. We are, however, in good company. The 50 cited countries included the European Union and dozens of countries in South America, Eastern Europe, Asia, the Middle East and the Caribbean.
Media attention in Canada focused on U.S. concerns over the availability of counterfeit or pirated products at home, but the coverage missed the real story. Just weeks after the Canadian government announced its plans for copyright reform, the U.S. has injected itself into our policy debate by criticizing our future laws as well.
The report notes that the U.S. copyright industry is concerned with Canada's plan: Ottawa intends to reject some provisions in the controversial U.S. Digital Millennium Copyright Act. In particular, the U.S. is unhappy with Canada's proposed approach to legal protections for digital locks known as technological protection measures, or TPMs, and with proposed Internet service provider liability.
After years of urging Canada to implement the World Intellectual Property Organization's Internet treaties, the U.S.'s true interests are revealed. Implementing the treaties is now not good enough. The U.S. wants us to implement its version, which extends well beyond international requirements.
Even more troubling is the way U.S. pressure against Canada has become part of a much larger global campaign to leverage American economic power by tying trade agreements to greater intellectual-property protection. This was not always the case. When Canada negotiated the Free Trade Agreement with the United States in the 1980s, intellectual-property issues constituted only a small part of the deal. Today, the U.S. is negotiating trade agreements with dozens of countries. The intellectual-property provisions are sometimes 40 pages in length, specifying international intellectual-property agreements that must be implemented and including specific provisions to govern domain-name disputes, patent protection and copyright law. The copyright provisions inevitably go beyond even those found in the U.S., including requirements for an extension of the term of copyright, new protections for TPMs and ISP-liability requirements. The provisions do not, however, feature any balancing for user interests.
This trade-policy approach has become so pervasive that it's time to create a mirror list to counter the U.S. Special 301 report. That list should include naming countries the U.S. has already bullied into stronger intellectual-property protections, along with a "Watch List" of others facing similar pressures.
The IP Bullied List would include Australia, Bahrain, Chile, Singapore, Morocco, Jordan and the signatories to the Central America Free Trade Agreement (Dominican Republic, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua).
Each of these countries has reached trade agreements with the U.S. that include sizable intellectual-property requirements. For example, the U.S.-Morocco Free Trade Agreement even includes ministerial side letters specifying precisely what ISPs in Marrakesh are required to do if they are notified a subscriber has posted infringing content on the Internet.
The Watch List would be even longer, including Panama, Thailand, Malaysia and Brunei, all of which are working on bilateral trade agreements.
Moreover, a block of Middle Eastern countries (Algeria, Kuwait, Qatar, Saudi Arabia, United Arab Emirates and Yemen) would make the list as part of the Middle East Free Area Initiative, as would the five countries working on the Southern African Customs Union Free Trade Agreement (South Africa, Botswana, Lesotho, Namibia and Swaziland).
Further, every country in the Americas, including Canada, Mexico, Argentina, Brazil, Jamaica, Peru and Venezuela would be on the list by virtue of participation in the Free Trade Area of the Americas Agreement negotiation.
Even though that draft treaty has stalled, the Americas agreement is the most ambitious attempt to spread stronger intellectual-property laws throughout North and South America. with at least 25 countries participating in the talks.
The latest version includes pages of intellectual-property obligations that would overturn carefully developed national policies. For example, the Canadian Internet Registration Authority would be required to scrap its domain-name dispute-resolution policy. It provides greater protection for free-speech websites than the policy favoured by the U.S.
Given the U.S.'s global-trade strategy, the recent criticism of Canada's plans is clearly just the first shot across the bow. If history is any indication, Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla can expect an onslaught of U.S.-backed lobbying for stronger protections in the months ahead.
Standing up to that pressure is difficult, but Ottawa should keep in mind that it is far better to retain Canadian sovereignty and, in doing so, remain on the U.S. Special 301 list, than to surrender our right to choose and take a spot on the U.S. IP Bullied List.