Canada and The WIPO Treaties: Flexibility Was Always Key

Yesterday I blogged about the origins of the WIPO Internet treaty, challenging Mihály Ficsor's claims that the treaty requires a ban on the distribution and manufacture of circumvention devices.  Coincidentally, I recently received long overdue documents under the Access to Information Act that highlight the Canadian position during the negotiations of those treaties.  As the Canadian delegation prepared to go to Geneva for the final round of negotiation, then Deputy Minister Kevin Lynch (later Clerk of the Privy Council under Prime Minister Harper) provided then Industry Minister John Manley with a memorandum approving the Canadian instructions (the delegation was led by Danielle Bouvet, then with Industry Canada).

Three issues stand out from the document.  The first has to do with the hesitation with the treaty itself.  The memo acknowledges "in certain areas, the proposed treaty language has not been the subject of adequte debate within Canada – or indeed internationally." Perhaps arising from these concerns, the memo concludes by noting "the delegation will not have full powers to sign a treaty."

Second, the position of the Canadian government was to support provisions that would not result in major changes to domestic law or were sufficiently flexible in implementation.  In particular, the memo states that "Canada will also support provisions that constitute minor changes to domestic policy, or which provide flexiblity to adopt measures compatible with Canadian policy."  The delegation instructions were therefore limited to provisions consistent with Canadian law (which the WIPO Internet treaties were not) or were flexible in implementation.

Third, notwithstanding the admitted lack of debate, it is striking to see how much more open the WIPO Internet treaties were than the current ACTA negotiations.  The memo states:

Drafts of the treaties to be negotiated at the Conference were made available by WIPO in early September 2006. Copies have been distributed by Industry Canada to over 200 individuals and groups representing Canadian stakeholders, who were invited to file written submissions. Consultation meetings were held with individual stakeholders. The key stakeholders were invited on November 14 to review the draft treaties with the author, Jukka Liedes of Finland.

Compare that process with the current one in ACTA, where there are no drafts to share – just vague promises about making drafts available after the talks are concluded.


  1. Darryl Moore says:

    circular arguments.
    I am amazed by the number of lawyers here who are arguing the intent of a treaty, and therefore how it must be interpreted.

    Here is Barry Sookman’s response to Michael:

    Who said what where, and what was written in various other documents, is all irrelevant. Try fighting your 407 bill based on the conversation you had their staff, or how you understood your contract with them. Good luck.

    WRT DRM protection the relevant section of the WIPO treaty is Aticle 11:

    Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

    That is all that is said. It is vague and widely open to interpretation. However, it is pretty clear from this that the protection for DRM is limited to its use by authors “in connection with the exercise of their rights under this Treaty or the Berne Convention”. I.E. Not to protect any other rights the author might have given himself that go beyond the scope of these treaties. That is a very narrow scope, which totally preventing the distribution of circumvention devices would go well beyond because doing so would prevent the use of such devices to bypass DRM put in place to protect MORE than the authors rights.

    It is also very interesting to see Barry quote from “WIPO Guide to the Copyright and Related Rights Treaties” to support his and Dr. Ficsor’s assertions that Canada does not have this flexibility.

    First of all this is an opinion piece written by bureaucrats giving their interpretation of the document, which should hardly be considered binding upon governments. Second, did I say who the particular bureaucrat was that wrote this book? It was Dr. Ficsor himself!“Guide+to+the+Copyright+and+Related+Rights+Treaties”&source=bl&ots=pqxmxl2mC-&sig=jLWakPSnUhkmjHpyLPgOqOBztPs&hl=en&ei=gU8yS-viJIOINK6CnYEJ&sa=X&oi=book_result&ct=result&resnum=10&ved=0CCMQ6AEwCQ#v=onepage&q=WIPO “Guide to the Copyright and Related Rights Treaties”&f=false

    If the above long link does not work try googling:

    “The law of copyright and the internet” “Guide to the Copyright and Related Rights Treaties”

    It is hardly fair to quote ones own words to support ones argument, but then, that is par for the course for this lot isn’t it!

    There is much more wrong with his post, but this was the item that jumped out at me.

  2. Darryl Moore says:

    doh, easier link
    Actually it is right is his bio here:

    In 2003, WIPO published Dr. Ficsor’s “Guide to the Copyright and Related Rights Treaties Administered by the WIPO and Glossary of Copyright and Related Rights Terms.”

    I believe this is what Dr. Geist called policy laundering

  3. “Coincidentally, I recently received long overdue documents under the Access to Information Act that highlight the Canadian position during the negotiations of those treaties.”

    Great! Could you please post them so we can see the passages you cited in the original context?

  4. The Mad Hatter says:

    Doctor Ficsor has a problem with accuracy, which I have pointed out to him and to Barry Sookman.

    I will admit that I do not expect them to respond, after all, I’m not an internationally respect copyright expert, who Google doesn’t seem to know anything about…

    OK, ok. I’m still upset about being called a Maoist Revolutionary. Someone should take Mihaly Ficsor aside, and explain to him that insulting people is not the best way to get them to see your point. And that telling the truth is also a good idea. Lies are too easy to spot.