Columns Archive

U.S. Copyright Report More Rhetoric Than Reality

Appeared in the Toronto Star on April 23, 2007 as We Mustn't Cave In To Copyright Bullying

Appeared in the Ottawa Citizen on April 24, 2007 as U.S. Copyright Report Card More Rhetoric Than Reality

This week the Office of the United States Trade Representative (USTR), the U.S. government department responsible for international trade, will release its annual report card on intellectual property protection around the world.  The "Special 301 report" typically identifies about 50 countries that the U.S. has targeted for legal reform.

This year, it is a virtual certainty that Canada will receive special attention, with the U.S. claiming that the country has neglected to address critical issues and suggesting that it is rapidly emerging as a piracy haven. While the report will generate media headlines and cries for immediate action from Industry Minister Maxime Bernier and Canadian Heritage Minister Bev Oda, the reality is that Canada’s record on intellectual property protection meets international standards.  

Moreover, differences between the U.S. and Canadian economies – the U.S. is a major exporter of cultural products and has therefore unsurprisingly made stronger copyright protection a core element of its trade strategy while Canada is a net importer of cultural products with a billion dollar annual culture deficit – means that U.S.-backed reforms may do more harm than good.  

In fact, the U.S. claims fail to recognize that the current Canadian legal framework is successfully supporting a rapidly developing digital marketplace featuring digital download music sales that grew by 122 percent last year (nearly double the U.S. rate) with twice as many online music sellers as the U.S. when measured on a per capita basis.

Consider three issues likely to generate criticism in the Special 301 report – the fact that Canada has not ratified the World Intellectual Property Organization's Internet treaties, extended the term of copyright by an additional 20 years, or introduced anti-camcording legislation designed to stem movie piracy.

Notwithstanding the pressure on Canada to act on these issues, even one-time U.S. supporters are beginning to admit that these policies are open to doubt. Last month, Bruce Lehman, who served as the Assistant Secretary of Commerce in the Clinton Administration where he was the chief architect of the WIPO Internet treaties, acknowledged that "our Clinton administration policies didn't work out very well."  Meanwhile, Marybeth Peters, the U.S. Registrar of Copyrights has noted that the U.S. extension of copyright was a "big mistake," and the President of the U.S. National Theater Owners Association has advised his members that notwithstanding the introduction of anti-camcording laws, unauthorized camcording in the U.S. is on the rise.

Not only are the policies suspect, but the USTR report should be seen for what it is – a biased analysis of Canadian law supported by a well-orchestrated lobby effort.

Since the mid-1990s, the USTR has placed intellectual property protection at the very top of its priority list.  As a result, dozens of countries have entered into trade agreements with the U.S. in which they undertake to implement U.S. style intellectual property protections.  

The latest example is this month's free trade agreement between the U.S. and South Korea.  As part of that deal, the U.S. demanded that South Korea extend the term of copyright, ratify the WIPO Internet treaties, decrease Korean content requirements, and open Korean broadcast and telecommunications companies to total U.S. ownership.

Canada has not faced similar trade pressures – the North American Free Trade Agreement pre-dates the shift in USTR priorities – yet it has not been spared intense U.S. lobbying.

In recent months, U.S. Ambassador David Wilkins has publicly called on Canada to introduce copyright reform, characterizing our laws as the weakest in the G7 (conveniently overlooking the fact that the G7 no longer exists and references to the G8, which includes Russia, would not be accurate), while U.S. Senators Dianne Feinstein and John Cornyn have written a public letter to Prime Minister Stephen Harper demanding anti-camcording legislation.

Government documents obtained under the Access to Information Act reveal that lobbying pressure is even more intense behind closed doors.  During the first nine months of 2006, the documents show meetings focused exclusively on intellectual property were held between U.S. and Canadian officials in January and September in Washington as well as in April, May, and August at the U.S. embassy in Ottawa.

The documents also reveal that even Canadian Members of Parliament have used their positions to promote USTR concerns.  In August 2005, then Canadian Heritage Parliamentary Secretary Sarmite Bulte sent a personal request to Frank McKenna, the Canadian Ambassador to the United States, to meet for "a briefing on USTR concerns" with Canadian copyright reform. The private meeting, which took place a month later in Washington, featured the Ambassador, Ms. Bulte, and Canadian Recording Industry Association President Graham Henderson.

While the USTR report and its supporters seek to paint Canada as a laggard on copyright, this rhetoric ignores the fact that Canada is compliant with its international obligations and that Canadian law is consistent with the laws in most countries around the world.  For example, of the three highlighted issues (WIPO ratification, copyright extension, and camcording), only three of 192 United Nations members – the U.S., Singapore, and the Czech Republic – have completed all three reforms.  

Canada need not become the fourth country on that list.  The USTR may give a Canada a failing grade, however, the real failure lies with countries that cave into such bullying by enacting laws that are not in their national interest.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at


  1. Canada a piracy haven? I always thought there was something to “The Last Saskatchewan Pirate”…

  2. Xetheriel Angelknight says:

    My hope is that somebody in a position to make a difference actually reads this well-written piece of work from Mr. Geist. I have never read a piece of work that better describes and elaborates the current affairs of the Canadian cultural scene.

    Canadians need to stand up and make our voices heard: “We will not be a U.S. clone!”

    Why change something that is already working in our own best interest?

  3. firefoxuser says:


    Please make it so that I can read your stories without loading the images. If you want to test this, then use firefox v2.0.0.3 and imglikeopera 0.6.15 (to block the images). I also use noscript, but I do not believe that is the problem because when I loaded the captcha for this post, the page corrected itself.

    I like your stories, but I currently have to copy and paste it into a notepad to read them.

    Thanks for your time,


  4. R. Bassett Jr. says:

    Use Opera
    Opera is the best x86 and ARM processor based web browser in the world. Head to and see for yourself.

    By the way, Opera pre-dates Mozillia/Firefox and had tabbed browsing years before anything else did.

  5. Stian R. Eide says:

    Do not use Opera
    Opera is proprietary software, meaning the manufacturers control what you can do with it and let you use it at their mercy, much like the US tries to control what us non-Americans can do with our cultural heritage. Firefox, on the other hand, is free software, providing anyone with the freedom to modify or distribute it. Read [ link ] for more information on free software.

  6. Adebisi The Gamer says:

    I can assure you any laws or new technologies Canada adopts will not deter or prevent anyone who is determined to pirate. New laws will have only one effect, and that is to further stifle legitimate purchasers of the work.

    US copyright laws are reaching draconian levels, and the US (and even the Canadian) intellectual properties industries, are treating their legitimate purchasers like criminals with DRM restrictions, tariffs on blank media, etc…

    Such behavior is rapidly taking piraters from a money saving rationale, into a rebellion rationale. We have to put up with a lot of stupid crap and stupid laws from our governments, but this is not one of them.

    I would also ad that while the US is waxing paranoid over copyright, they do nothing or next to nothing, to stop any of these countries they deal with from sending phishing, or spyware, or other citizen targetting crimes against their own citizens. Where are the treaty demands to crack down on phishing spam and spyware exportation? I guess the guy who bilks Grandma out of her life savings is less a criminal than the college kid who downloads the latest Pussy Cat Doll’s drivel.

    And BTW, I am using firefox and the site looks just fine. If you expect every developer to make every website look perfect with every possible firefox plugin you may be using you are completely delusional. The fault is yours, not the webmaster on this finely produced page.

  7. use the adblock plus extension, dumbass.

  8. internet user
    I have to agree with Adebisi The Gamer saying that \”New laws will have only one effect, and that is to further stifle legitimate purchasers of the work.\”.

    Of course, that is really the point. I think, the proponents of these types of laws are not so much after \”stopping pirates\” via technological measures. They must know that this does not work, they are not that stupid.

    However, draconian technology measures that make it possible to control completely what the legitimate purchaser does with the content *is* something that must appeal to them greatly. By controlling the consumer rights at a very fine grained level, you can make them pay more, for every individual use. So.. it will make it possible for them to exploit the consumer more and make more money.

    Really, they would like nothing better but to \”lease\” the content to you and have you pay every time you do anything with the content at all.

    Copy to a CD? => 2$
    Listen to it on an iPod => 5 cents per minute
    Archive it on your hard drive => 1 $ / year

    And sure… this affects the legitimate user and doesn\’t stop pirates at all. I don\’t think they really care that much about piracy, but no matter how you turn when it comes to controlling their clientele the more control they have the better they like it.

  9. Canna Say says:

    Someone who deals with copryight
    Right now the laws allow the copyright holders to spam the abusers. It means that ISP’s are spending hundreds of dollars serving notices for toothless laws. Considering how much of the copyright violation that is going on is not from movies copied from the screen, it is important to ask why these laws are important. If there is going to be a law on the books regarding the sale and distribution, then we now have something new, that may be applied elsewhere.

    Its funny how they have realized that our govenment is as toothless as the laws that they are trying to enact, and rather getting some minor law put in place so that they can then work it through the courts into a much larger policy. It would be far better if our government decided to make a measured, controlled, well thought out law, then applying a bandaid, with the hopes that the courts will do all the real work. Why do we pay our elected officials, if they are going to aver their responisibility to the courts for matters like this….?