Over the next few weeks, I’ll be placing the spotlight on the many contributions in From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda
. My substantive contribution
focuses on the legal requirements to comply with the World Intellectual Property Organization’s Internet treaties. With the treaties dating back to the 1990s the issue may seem dated, yet it still resonates today. Within a domestic context, the government has identified ratification of the WIPO Internet treaties as one of Bill C-32’s chief goals. Internationally, the 1990s WIPO debate was re-enacted this year during the Anti-Counterfeiting Trade Agreement negotiations, with the U.S. again failing to convince its negotiating partners to adopt its implementation approach for anti-circumvention.
My article examines the issue from four perspectives: the plain language of the statutory requirements, the legislative history behind the inclusion of anti-circumvention provisions within the treaty, state practice in implementing those requirements, and scholarly analysis of the treaty obligations.
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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.
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