U.S. Targets Canada Over Copyright in Special 301 Report

The U.S. Trade Representative released its Special 301 report today, in which it casts judgement on the intellectual property laws of dozens of countries around the world. To the surprise of no one, Canada finds itself playing the role of Bill Murray in Groundhog Day as it once again is target.  In fact, this year the U.S. aims to increase the pressure by elevating Canada to the Priority Watch List (a more sinister designation than the previous Watch List), implausibly claiming that Canada sits alongside countries like Russia and China with its intellectual property laws. 

The move is not unexpected, given recent comments from Vice President Joe Biden and U.S. Congressional panels as well as the demands from U.S. lobby groups.  Those same groups will now dust off their press releases that lament the "embarrassment" of being included on the list (never mind that countries that represent more than 70 percent of the world's population are on the list) and the failure to introduce U.S.-style reforms (never mind that Canada enacted anti-camcording laws in 2007, introduced C-61 last year, is an original negotiating partner in the ACTA negotiations, joined the U.S. as a third party in the WTO copyright complaint against China, etc.).

Hopefully, the Canadian officials will similarly dust off their advice to the Minister, which for the past few years has stated (as obtained under Access to Information):

The Government is disappointed with the United States' decision to include Canada in its [year here] Special 301 "Watch List."  Canada does not recognize the Special 301 process due to its lacking of reliable and objective analysis, and we have raised this issue regularly with the U.S. in our bilateral discussions."

Those same sentiments were expressed by an official at the Department of Foreign Affairs to a House of Commons committee in 2007:

In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

While this demonstrates that Canadian officials recognize the Special 301 process for what it is (and isn't), it may well be time to take a more aggressive approach.  This year, twenty countries responded to the USTR process, challenging the claims of lobby groups like the IIPA and their possible inclusion on the list.  Some focused on their IP reform efforts, while others challenged the legality of reaching a conclusion of non-compliance.  The strongest came from Israel, which in discussing the view that the absence of anti-circumvention legislation could be the basis for inclusion on the list, stated:

given the industry objections to TPM, it lack of uniform implementation worldwide and its nascent obsolescence, non implementation of TPM can not be the basis for determining that a country, as in the words of the Trade Act of 1974 (19 USC 2242) "denies adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

I think Israel is on the right track here (though it too was elevated to the Priority Watch List).  It is not enough to say that the Special 301 process is unreliable and lacks objectivity.  Canadian officials must counter claims that Canada – which is compliant with its international obligations and has been a major partner for the U.S. on international IP matters – should be included at all.

Update: Here the come the lobbyist releases – the MPAA, Entertainment Software Association, and IIPA all celebrate Canada's inclusion on the list.


  1. United Hackers Association says:

    Time for a pirate party in canada
    the hell with the established morons that get nothgn done , im sick of the crap i keep hearing aobut my great country , when they steal softwood lumber cash and our jobs.

    Copyright is a right like driving a car thats being abused, and is it not traitorous to be doing what another country wants when the majority of your own country wishes that not so?

    TIME to start calling conservatives traitors and anyone that would stand up for any more then a 15 year copy right let alone a 10 year one.

  2. What a joke
    Whining about Canada not implementing a treaty that we signed… I have 5 words in response “Comprehensive Nuclear Test Ban Treaty”.

    “by giving its customs officers the authority to seize products suspected of being pirated or counterfeit without the need for a court order”. Please refer to the Canadian Charter of Rights and Freedoms, Part I, section 8. To accede to US government demands would, in my mind, mean that we are a country where the rule of law no longer applies. USTR, make up your mind. Of course, I could always make the accusation that anything entering Canada with a Warner Bros, or any other Hollywood studio, label is counterfeit so it would be seized… that would of course raise a NAFTA challenge…

  3. How about
    Maybe they should just take all the money they spend on stuff related to this, and give it out to the people that would be affected by this so called “IP theft”. They are wasting everyone’s time

  4. Jean Naimard says:

    Well, if the sionists complain…
    Well, if the sionists complain, you can bet your arse the US will comply to their demands.

  5. none
    As a U.S citizen (of partly Canadian heritage, it may be noted) let me say that I pretty much agree with you. It seems that most of our laws these days are driven by business/lobbying interests without concern for the majority. But c’mon, United Hackers Association; we really don’t steal your jobs. I mean, there are more Canadians working in the U.S. than there are U.S. citizens working in Canada, eh?

  6. Seem Wong!
    I don’t get why the U.S. always has to pick on Canada.
    Last I check we are their biggest trading partners and their strongest ally in my of their fights.
    I think over the years the American government has forgotten all that Canada has done for them.
    Keep picking on your allies and you won’t have any allies left.

  7. “It seems that most of our laws these days are driven by business/lobbying interests without concern for the majority.”


    America has the opportunity to be a vastly better place to live than it is now, but the masses of ignorant sheep completely prevent that from happening. Many Americans are so concerned with other people’s business that the principles of freedom, pursuit of happiness, and privacy are so deteriorated it’s no longer valid to label America has a democracy. Freedom gives way to legislation; legislation gives way to exploitation; exploitation is the american dream.

  8. Copyright as a fiat good…
    This was the writing on the wall 10+ years ago. After outsourcing all their manufacturing base, ‘IP’ is all the USA has to generate money with. If you read the article on the G&M website you get some choice quotes like:

    ““Canada remains woefully behind the rest of the developed world (and many countries in the developing world as well) in adopting critical legislation that will facilitate the development of a healthy online marketplace for copyright materials,” said Eric Smith”

    Healthy Online Marketplace = US Companies exploiting 3rd world agriculture (Monsanto) or taking stories passed down over generations, making cheezy animated versions and reselling it to us over and over with each new ‘special special before we lock it away in the vault’ editions (Disney)

    Copyright is necessary, and Criminal copyright infringement should be punished severely. This whole ‘Intellectual Property’ we can own an /IDEA/ BS that the US pushes, is inane and thanks to groups like A2K, and scholars like Lessig and Geist, people are beginning to see how something that was designed to further human knowledge has been used instead to just further corporate profits and stifle innovation and creativity.

  9. motorheadabega says:

    Americans ARE thieves
    Phil said “But c’mon, United Hackers Association; we really don’t steal your jobs…”

    Americans DID steal $5BILLION dollars they originally charged for a softwood levy that their own NAFTA appeals process found to be ILLEGAL, but that they just decided not to pay back. Must be nice.

    Let US Federal Gov’t pay off their crybaby record companies out of that $5B and get them the @#$% out of our domestic policy.

    Or just invade us already and get it over with 🙁

  10. One of the biggest sources of piracy in North America right now has to be the poorly encrypted Dish satellite signals that pirates easily tap into. Seems to me they are in the US. Wolverine wasn’t leaked from Canada but was from the US. The Metalica album was leaked from the US etc, etc.

    Like enviromental issues it is easier to highlight some one else’s issues than it is to deal with your own.

  11. Soothsayer3 says:

    United Hackers Association said:
    “TIME to start calling conservatives traitors and anyone that would stand up for any more then a 15 year copy right let alone a 10 year one.”

    You sir are a moron. Biden is a flaming LIBERAL, not a Conservative. Liberals will feed you to the lions (riaa) far far sooner than the Cons ever will.

  12. Riley August says:

    No, Biden is a conservative. There is no active liberal party in the US. Democrats are right-wing moderate conservatives, Republicans are a mess going from strong right-wing to extremist.

    I think, however, he meant Stephen Harper, who IS a traitor to Canada and to humanity. He was elected on principles of transparency, provincial rights, and a strong, independent nation on the international stage. In all cases he has done nothing but the opposite. Time to get this stooge OUT! We need to get off this runaway train. The “American Dream” is over, and it infected us far too much.

  13. Maury Markowitz says:

    Some good, some bad
    “by giving its customs officers the authority to seize products suspected of being pirated or counterfeit without the need for a court order”

    I think this is a fine idea, a bone we can throw the US without having any real downside.

    The concern here is the flow of pirate burned DVD’s which flow out of China, in particular, and other countries like Canada as well. Internet piracy gets all the press, but from the conversations I’ve had with people in the industry, it’s not a real concern – yet. Anyone can figure out how to buy a $2

    We accede to similar laws in the case of child abduction or contraband drugs, so the claim that this is too scary to contemplate is clearly unfounded. Perhaps one might suggest that there’s no comparison in terms of “real damage” – who cares about a DVD?

    But that cuts both ways – exactly what is the economic damage to an individual that has a single legit DVD removed without a warrant? $20? And is this really something we expect to happen? I give the CBSA credit for being able to tell the difference between my copy of Greatest American Hero and a trunk full of 1500 bubble-jet printed copies of the latest cookie-cutter Hollywood action movie.


  14. anonymous says:

    Hell with america. They can take their copyright laws stick up RIAA rear.

    F*!# RIAA and america

  15. Seems to be a harsh step
    To increase the pressure by elevating Canada to the Priority Watch List is not that good as Canada should not be counted like other countries and if there are any differences with Canada that can be resolved through negotiations.

    Important phone numbers,

  16. There should be a common Intellectual Property Law for all the countries
    Though it is better to have a common law for every countries when we talk about intellectual property rights because if the definition varies countries to countries it wont be that easy to protect Intellectual property rights.

    Important phone numbers,

  17. copyright
    I would rather you just #### the RIAA and not America… but I suppose we can add in all the American idiots too. Someone should do something about those dumb@$$3$ >.>

  18. They’re right
    It’s a well-known fact that the Pacific Mall in Markham is the central hub of all video piracy in North America, and quite frankly, the RCMP busts every computer and electronics store in the building every 3-6 months, and some relative of the store owner reopens the store in a few days under their name. If you really want to see greed, just take a good look at the people that run these stores. They go onto the internet, pay nothing to steal “screener” movies (movies taped on a camcorder from a wall in a movie theatre projector room) from Bittorrent websites, burn them to DVD, and charge $5-10/apiece for them – all without any cost to them. Now the next time someone says “why pay $20 for a DVD, when I can get one from the Pacific Mall for $5 – while it’s still in the theatre”, I laugh. I’ve seen the quality of said videos before. They’re crap! Plus, they’re illegal. And I know how much it costs to create and package a single copy of a video out of a series, because I’ve done it a few times before, and it’s not cheap. At the risk of sounding like a racial profiler, these stores also carry region-free DVD players designed to undermine profits from DVD sales that are designed to be sold only in a particular region in the world, almost entirely Asian markets, since Markham has a very predominantly Asian community, and China is one of the top countries for piracy. I say that, not because I choose to turn this into a racial contraversy at all – it’s just a fact (if you say “Mafia”, is it not accepted to assume you’re talking about Italians, unless you precede it with another nationality?). Anyway, circumventing region coding means that regional MPAA-like fees and taxes don’t go to the respective organizations. It throws the economics of regional market segmentation for DVD sales out of whack. And it’s not like it’s hard to buy a pirated DVD from these stores. Just go and ask for a new movie and they provide them (for a nominal, nay, undercut fee), no questions asked. I would say that if these stores were busted properly under copyright law, they wouldn’t stand a chance to pay up legal fees and would be permenantly shuttered, so something is up. Either a) they have lots of money through family connections overseas, b) the RCMP is taking bribes or elsewise just looking the other way, or the least likely, c) the stores make enough money to pay for piracy charges through the cutthroat computer parts industry (just not possible, sorry). Take your pick.

  19. Darryl Moore says:

    They’re not right about DVD region encoding!
    While I have no issue at all with the RCMP shutting down the sale of pirated DVDs at the Pacific Mall or anywhere else for that matter, I fully support and encourage the sale of region free DVD players. Region encoding should be against the law.

    Region encoding was designed by the movie companies to impose an artificial monopoly where there has no business being one. This isn’t about copyright at all. This is about my ability to enjoy a product I’ve legally purchased in a manor in which I want too. (Both the DVD player and the DVD) I am curious what rational you use to conclude that the movie companies have a right to impose these monopoly marketing regions in the first place.

    I will ignore any of your racial comments as they are completely superfluous to my point.

  20. Say Hi to the 103-Cultural Development Index!
    Guys, it’s crystal clear: access to culture makes people cult. Laws which insanely chase access to culture just cause more inculture.

    Then, those IIPA made us the Cultural development Index! Reverse 301 and you will get 103 – ‘World’s cultural development Index’, in short, US citizens will be even more stupid as a whole (as they have a negative rate 😉 ) and Canadian and Chinese ones will improve over time.

    We just need to take away their nukes and they will sink into two oceans. They have no credibility on Canada, Latin America (Colombia isn’t actually a country), Russia, China, Europe and 99% of muslim population worldwide.

    Once the Chinese guys had bought the remaining US’s satellite banana republics, the US will appear next to Rome, Spain and England in history books as another superpower which was too stupid to keep it’s status. BTW China de-facto controls half africa and asia right now, it’s just a matter of time.

    Good morning Vietnam!

  21. Re: Darryl Moore
    “Region encoding was designed by the movie companies to impose an artificial monopoly where there has no business being one.”

    Absolutely untrue. Region encoding was designed to keep products within a given market to support regional economies.

    “I am curious what rational you use to conclude that the movie companies have a right to impose these monopoly marketing regions in the first place.”

    Governments that want to keep their own content within their own region, for one thing.

    If you want a good example of this, just look at the CRTC’s restrictions on external content. The CRTC wants to keep a set percentage of Canadian content on Canadian airwaves by limiting the amount of outside content by a certain percentage of airtime. DVD region coding just does the same thing, but with sales on a tangible product, rather than on a service. If you buy region 1 coded DVDs and a player, you have nothing to complain about – if you use them in North America. Try to mix and match them, and it’s not accepted. Nobody is saying you can’t take your player with you, along with discs when you travel. You’ve already purchased them in your country of residence. If you purchase goods outside of your country, there may be trade and/or copyright law preventing them from being legally played from outside of that product ecosystem, and region coding is the enforcement of those laws. FWIW: When was the last time you saw a Chinese company making a CVD player designed for North American markets?

    “I will ignore any of your racial comments as they are completely superfluous to my point.”

    Your point is about region coding. Fine. As far as piracy goes, anybody that turns their head to the possible connections of the areas locals nationality, and a related nation known for being in the top 3 nations in the world for piracy is completely ignorant of the facts, especially considering their past dealings with the law. Now if I made those claims based on no evidence, that could be considered racial profiling. Instead, you have previous evidence and legal issues to content with. These companies bring products over from overseas too, with connections to manufacturers in China. Would it be wrong to say the same thing about drugs or migrant workers brought in? I would harken no.

  22. @Darryl Moore (in addition)
    “Region encoding was designed by the movie companies to impose an artificial monopoly where there has no business being one. **This isn’t about copyright at all**”

    That’s EXACTLY what it’s about, I’m afraid (well, one aspect anyway). You see, to get international copyright costs a lot of money. Most DVD products are sold without region-free encoding because it’s cheaper to manufacture for a particular market with only the copyrights needed for that market. Often a video production company will go to a regional government for funding, but the government may only fund them for a media production destined to be sold within that market. As such, any international copyrights may cost additional legal fees to enforce outside of the target market. Region coding helps to prevent that. Now, there’s the argument about free trade, but free trade worldwide is governed by the WTO, the same company that sat by when, as another reader wrote, Canada got f*ed over with softwood trade disputes. Then you have the WIPO, which is governed by the UN, which favours regionalization of products to protect regional economies. The EU only disputes UN policy if it’s in their favour to do so.

  23. Darryl Moore says:

    The glaring flaw in your analysis, and in particular with regard to the CRTC, is that there are no government restrictions on content in this fashion. CRTC CanCon restrictions are for broadcast, and broadcast only. There is no equivalent for tangible media.

    Don’t go and start blaming the government for something they have had absolutely no part in. Lord knows there is enough problems for which they can legitimately take the blame.

    Region encoding is entirely a marketing control used by big media companies so that they can squeeze the maximum amount of profit from an arbitrary geographic market by making media from other geographic areas intentionally incompatible with domestic AV equipment. There are NO laws requiring them to do this. By the same token, there are no laws which say I need to honour these artificial market segmentations. Nor should there be. They only benefit multinational media companies, and at the expense of a free market.

    “You see, to get international copyright costs a lot of money.”

    You know little about copyright. Any creative work is by default protected by copyright in all Berne treaty nations (most of the world) There are no additional costs. I repete this is nothing to do with copyright and everything to do with market control.

  24. Monopoly to hagemony
    Although the post is old, but I think the matter is always current. The big corporates are known for using their deep pockets and clout to influence policy makers around the world. US is not an exception. In fact, it can easily be argeued to be a leader in some sense, to start this trend.

    So what should be our response, “Ignore 301 or whatever that amounts to”, and carry on with your work of creating better artifacts that can be distributed across the world at a very low cost and without a greed to make money from just that. Rather create some more and better after that.

    That is how you and me can serve humanity better and make this world a better place to live…

  25. garbage
    Considering that 90% of movie exported by the US to all over the world is garbage and that porn is surely the invisible part of the iceberg that fuels big money into the the pockets of the mpaa&riaa I agree it’s a crime those good guys at Pacific Mall selling dvd’s a $1. The legally should be them to pay the people who pick the dirty.

  26. He said, she said….
    I have an opinion, but I am going to keep it to myself on this matter, but let me just say, wouldn’t it be great if there was a nuclear war right about now to annihilate both sides so we could start this never-ending battle over, and hopefully get it right the next time..

    Greed and power are evil.. And it all started with the Catholic Church.. I wonder if the Pope uses bit torrent?

  27. Special 301 link broken
    Here’s the new link: Version of the 2009 SPECIAL 301 REPORT.pdf

  28. I think from memory Open Sourse has been around far longer then Microsoft, and why have we got freedom of choice in speech etc, and why does big brother America stick up for the down trodden and oppressed societies of the world and then turn around on the other hand and tell us we can’t use open source software? “Who are the hypocrites”? Is Microsoft so hard up with 95% of the operating system world market that the have to try to drive the rest of us to us Windows, I for one will continue to use open source operating systems and I think I’m just one of thousands out there that prefer to use open source.


  29. Does being special come with a prize?
    So your country ends on the list if it advocates for FOSS? – Sadly, it means my country is not doing enough to promote FOSS. Hopefully, next year we will make it. Kudos to canada and indonesia.

  30. Sanity_Vocal says:

    Reversal of Roles
    Hey, maybe everyone on the 301 list should put the US on a list of their own – the Protectionalist Countries list. With the US being put in the No 1 position, and followed by Japan in No. 2.

    Cause all this bolstering, it seems a lot like protectionalism to me, bub!

  31. Femacamper says:

    F**k these private American associations that represent New World Order companies
    The IPAA, MPAA, RIAA, and ESA can blow me.