Coming Clean on Copyright

My regular Law Bytes column (Toronto Star version, freely available version) notes that with House of Commons now back to business, a parliamentary committee will be formed in the coming weeks to conduct hearings on Bill C-60.  While much of the public' s attention in recent days has focused on concerns that the bill will harm education, the reality is that the most controversial aspect of the forthcoming hearings will not involve those issues, but rather the WIPO Internet Treaties.  A steady stream of lobby groups representing the movie, music, and software industries will point to the fact that Canada has yet to ratify these treaties as evidence that our copyright law is outdated.

I argue that it is important to separate fact from fiction.  The myths that may invoked in the months ahead fall into three categories: (i) Canada's place in the international copyright world, (ii) the impact of WIPO Internet treaty ratification on Canadian creators and consumers, and (iii) whether Bill C-60 meets the treaties' requirements.

The arguments surrounding Canada's place in the international copyright world frequently imply that Canada has failed to meet its international copyright obligations, that signing the treaty in 1997 now compels Canada to ratify it, and that Canada has fallen behind the rest of the world by moving slowly on ratification.

None of these claims are true.  Canada has not failed to meet its international obligations since it has no obligations under the WIPO Internet Treaties – under international law, obligations only arise once a country has ratified a treaty. Moreover, Canada's decision to sign the WIPO Internet Treaties was merely as a sign of support, not a legal obligation to ratify.  In fact, according to government documents obtained under an Access to Information request, at the time Canada considered signing the treaties, then-Canadian Heritage Minister Sheila Copps was advised that "international convention is such that signing in no way binds Canada to ratify the treaties. It is a symbolic gesture."

Finally, to hear supporters of the treaties describe it, it would appear that Canada is the last country in the world to move toward treaty ratification.  The reality is far different – of the countries that comprise the G-20, the large group of economically-important nations, only six have formally ratified the WCT.  Far from playing catch-up, Canada finds itself in the majority of G-20 countries by having adopted a wait-and-see approach.

The WIPO Internet Treaties' impact has been similarly exaggerated.  Supporters argue that failure to ratify will result in diminished protection for Canadian artists outside the country and that ratification will not have an adverse impact on Canadian consumers. Once again, neither of these claims prove accurate under close scrutiny.

Ratification of the WIPO Internet treaties won't provide Canadian artists with any additional protections in countries such as the United States and Japan since they already extend equal protection – known as national treatment – to local and foreign artists under existing trade agreements. While WIPO Internet treaty ratification will not benefit Canadian artists in foreign jurisdictions, foreign artists will enjoy great benefits from ratification to the detriment of Canadian consumers, since formal ratification of the WPPT would require additional changes to Canadian copyright law, most notably providing national treatment for the controversial private copying levy.

The column also focuses on the intense pressure to ratify coming from the U.S.  For example, according to additional information obtained under an Access to Information request, last year the Recording Industry Association of America met with Canadian officials and called on Ottawa to ratify the treaties within seven weeks, presumably jumping ahead of issues such as health care and removing the need for any public consultation or debate.

I conclude by acknowledging that the new Bill C-60 parliamentary committee will face a tough challenge since copyright reform is always a contentious issue.  As dozens of interested parties lineup to make their case, committee members must be sure to base their decisions on fact, not fiction.

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