Will Canada – China Changes Include a Shift on Intellectual Property?

Prime Minister Stephen Harper arrived in China today for a high profile visit aimed at improving the Canada- China economic ties. Many have noted the change in tone from the Canadian government on China on rights issues, but the intellectual property story is worth noting here as well. Unlike a U.S. visit, which is likely to place IP issues at the very top of the list, the Canadian visit is unlikely to emphasize the issue. Indeed, Canada would do well to consider shifting its approach to China on intellectual property.

While China-based piracy is unquestionable a concern, Canada has too often used the issue to curry favour with the U.S. at the expense of developing the China relationship. In recent years, our support for the Anti-Counterfeiting Trade Agreement (which deliberately excluded China) and now the Trans Pacific Partnership (which also excludes China) does little to help relations. China could be a strategic ally on global IP issues as both countries face significant external pressure for reform. While compliance with international rules should be the starting point for any dialogue, focusing on the flexibility that exists at international law to address domestic concerns is in both our interests.

The biggest Canadian blunder was the decision to join a U.S. complaint against China at the World Trade Organization in 2007 alleging that China’s domestic laws, border measures, and criminal penalties for intellectual property violations did not comply with its international treaty obligations. The case was a big loss. China was required to amend parts of its copyright law but on the big issues – border measures and IP enforcement – almost all of the contested laws were upheld as valid.

More interesting are the background documents that demonstrate that the Canadian government was unable to muster credible evidence of harm among Canadian companies.

Interestingly, the key player in promoting the case in Canada was the Canadian Recording Industry Association, which appears to have worked closely with the U.S. government to pressure Canadian officials to join the case. A Wikileaks cable notes that “CRIA is leading the charge to get the Government of Canada to join the U.S. case.” [the same cable also states that the Entertainment Software Association of Canada “expects not to take a position, because not all of their members are in agreement and because their members’ IP is not Canada-based anyway.”]

I chronicled the background information in a column in 2009 based on documents obtained under the Access to Information Act.  The key findings:

Government records reveal that the U.S. began to pressure Canada to join the case as a full party in 2006, months before the case was formally filed with the WTO.  In April 2006, officials at the Department of Foreign Affairs asked the Beijing and Shanghai consular offices for information on intellectual property infringement problems, but neither provided much assistance.

Two months later, with the case making little progress (in May, an RCMP official wondered aloud why Canada was even concerned with enforcement in other countries), Foreign Affairs launched a public consultation on intellectual property enforcement abroad.  The consultation was not limited to China, as officials decided to keep it open-ended.

The consultation generated 55 responses, but officials hoping to build a solid case against China were left sorely disappointed.  According to a government summary (the consultation results have never been disclosed to the public and were obtained under Access to Information), only one-third of the responses specifically referenced China as a problem.  In fact, there were more responses that criticized the United States and the consultation itself.

By the end of the summer, the U.S. had provided Canadian officials with its legal arguments, but Canada was without the evidence it needed to demonstrate harm and thereby participate as a co-complainant in the case.  Indeed, on the key issue involving criminal enforcement thresholds, a Department of Justice official noted that Justice and RCMP guidelines used similar thresholds for prosecutorial decisions and that the Chinese could effectively make similar claims against Canada.

Given the weak position, Canadian officials could not support becoming a co-complainant, instead recommending that Canada join as a third party.  Anticipating an October 2006 complaint, a press release was prepared but was never issued after the U.S. decided to delay launching the case.

With no complaint in sight, the Canadian Recording Industry Association, which had been the most vocal supporter of Canadian participation, met with senior Foreign Affairs officials in January 2007.  Documents prepared by department officials in advance of the meeting noted that CRIA’s previous efforts to encourage participation had “lacked specifics.”  The memo concluded that “we remain of the view that we do not have enough information related to specific Canadian experiences and interests to go forward as a co-complainant” and that “there is still no real concrete information however, of Canadian interests that have been harmed in China.”

Over the next few months, Canadian officials grappled with several concerns as a U.S. complaint appeared inevitable.  For example, with plans for Canada to participate in the intellectual property case against China but not in a second case on market access, officials feared that the Canadian steel industry would voice its objections.

Further, as Canadian officials drafted a formal letter of notification of its participation, a Geneva-based official asked “do we have statistics to mention about intellectual property owned by Canadians sold in China or something like it to explain why we are interested?”  Without solid statistics, the formal notification did not reference the issue, instead merely stating Canada’s “concern” with Chinese practices.

The U.S. commenced its action on April 9, 2007. Canada filed its notification as a third party participant two weeks later and within hours, CRIA wrote to Foreign Affairs to offer its assistance on the case. Given the weak position, Canadian officials could not support becoming a co-complainant, instead recommending that Canada join as a third party.


  1. One-dimensional justice
    “compliance with international rules should be the starting point for any dialogue”

    International rules are hardly the product of democratic deliberation. We have deals like ACTA put together in secret by a few powerful actors who make sure they are the only ones in the room. Their explicit intent is to present their bargain as a fait acompli and to strong-arm the public and the rest of the world. We have corporations drafting laws in secret, using ambassadors as cats’ paws to impose them around the world. We have the Prime Minister saying he doesn’t care what the law contains so long as the Americans are happy. Is a rule made this way democratic? Is it reasonable? Is it legitimate? Should we accept it as a new baseline once it has gathered enough signatures from the ignorant, the deceived and the uncaring?

    Did Canada kowtow to international rules in the so-called Turbot War? Not at all. In defense of the commons of fish, we actually boarded a Spanish vessel in international waters after firing shots across its bow. Though the European Union accused us of piracy, our action put us in a position to negotiate a resolution to overfishing.

    This example of piracy and the commons is probably not a productive model for copyright, but it illustrates my point: while we may have to deal with precedents and conventions, they are hardly scripture. Rules are but means to the achievement of ends. Those ends must be chosen democratically by human beings in the public interest. When the rules are illegitimate we must say so, not bow our heads in supplication. If we limit our moral imagination to the world as it is we betray our duty as citizens. People, democracy, the public interest: these things, not rules, must always come first. We must demand them.

  2. Grow a fucking backbone
    Honestly, does the Canadian government have their fingers shoved up their asses, this is a one sided democracy and its clear the Canadian government will never stand up against “Big brother”, we always seem to be the bitch of the US and seriously allot of people are getting fed up with our spineless government.

  3. The Harper government is tightly focused on economics, perhaps to the detriment of other elements of society. I suspect this is why the lobbyists have had such an influence, they are presenting their arguments in an economic framework, even if the “numbers” they use are unjustified (or even outright fabrications). They are speaking the “language” this government wants to hear.
    But any time we can use that myopia to steer them towards more sensible policies in other areas, we should do so.

    With that in mind, loosening the economic ties to the US is a good idea. On the other hand, negotiating closer economic ties with China will bring quite different “agendas” to the table. As we have already seen, it’s isn’t the publicly stated reasons for negotiations that causes the most disruption, it’s the “small side issues” dragged into the picture that creates controversy.

    I have been watching the political and economic changes in China for quite a few years. For now let’s leave aside the political differences. Socially and economically, people tend to think much longer term than the average Canadian, or Canadian corporation. I am unsure how those attitudes will affect our culture, or how it will affect our relations with the US. It will be interesting. But if the Harper government approaches this with the same myopic focus on economics, the long term effects could be very unsettling.

  4. Pfffff….
    …this should have been a great opportunity to find a friend, indeed a big well-funded friend, to stand together AGAINST the united states and its corporate lobbyist-run government (“the best government money can buy”). We should already have reached out to New Zealand, the Kiwis have the same severely outdated life+50 rule we have and they are also under hostile fire.

    Hopefully the Europeans can kill ACTA dead in the water (Poland, Czech republic, Slovenia and now also joined in: Latvia suspending ratification). This means they only have to worry about the revived IPRED2 and inDECT while we can concentrate our efforts on TPP.

    What an onslaught on our freedoms!

    But we all know where this is eventually going when it’s over and out for the Typewriter-generation and in with the Net generation. Right now we’re in a turbulent time between the old Berne-influenced time and the New Time.