Post Tagged with: "WIPO"

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.

December 23, 2009 — 4 comments — News

Ficsor Attacks: WIPO Treaty Architect Still Fighting Lost Policy Battle

CRIA lobbyist Barry Sookman's blog is home this week to a guest post from Mihály Ficsor, a well-known international copyright author who is the former Assistant Director General of WIPO. Ficsor is closely associated with the creation of the WIPO Internet treaties and today works with the International Intellectual Property Alliance, the leading U.S. copyright lobby representing the RIAA, MPAA, BSA, and other groups. Unlike Bruce Lehman, another leading creator of the WIPO Internet treaties who has acknowledged that they (along with the resulting DMCA) have been a policy failure, Ficsor remains determined to fight for his baby.

The post is filled with remarkable vitriol toward those arguing for balanced copyright, with Ficsor warning of "free access revolutionaries" and against Canada becoming "an isolated hostage and victim of demagogue campaigns organized in the hatred-driven style of Maoist Guards as during that other brilliant 'cultural revolution.'" Most reasonable readers will likely dismiss the post on that basis alone. For those willing to look beyond it, however, the key question is whether the WIPO Internet treaties requires a prohibition on the distribution and manufacture of circumvention devices. Ficsor argues that they do, stating:

The allegation that the two Treaties do not require protection against the manufacture and distribution of unauthorized circumvention devices is completely groundless. The negotiation history of the Treaties clearly indicates that, although their anti-circumvention provisions finally used a more general language, they had been based on proposals extending to the prohibition of such activities.

While it is true that the initial U.S. proposals (which led to the WIPO Committee proposed language) targeted circumvention devices, the negotiation history actually shows that there was not consensus support for this language.

December 22, 2009 — 40 comments — News

EU Demands for Trade Deal Would Reshape Canadian IP Law

More than 20 years ago, Canada negotiated a free trade agreement with the United States that attracted enormous public attention. The first FTA – to be followed a few years later by the North American Free Trade Agreement that brought Mexico into the mix – played a pivotal role in a national election and ultimately resulted in dramatic changes to the economy and Canadian law.

My weekly technology law column (Toronto Star version, homepage version) notes that earlier this year, Canada and the European Union announced plans to negotiate a Comprehensive Economic and Trade Agreement (CETA), possibly the biggest Canadian trade negotiations since NAFTA. The first round of talks took place in Ottawa in October, yet the treaty has generated practically no public scrutiny. That may change following the leak last week of the European Union's proposed intellectual property chapter.

December 21, 2009 — 18 comments — Columns

WIPO Treaty for the Blind Gains Momentum, But Canada Missing in Action

The World Intellectual Property Organization is meeting this week with considerable momentum toward work on a Treaty for the Blind that would establish important copyright limitations and exceptions to ensure broader access for the sight disabled. While the U.S. had emerged as a leader with a surprising shift in approach, […]

December 18, 2009 — 2 comments — News

Beyond ACTA: Proposed EU – Canada Trade Agreement Intellectual Property Chapter Leaks

Canada's participation in the Anti-Counterfeiting Trade Agreement negotiations has understandably generated enormous public concern as leaked documents indicate that ACTA would have a dramatic impact on Canadian copyright law. The U.S. has proposed provisions that would mandate a DMCA-style implementation for the WIPO Internet treaties and encourage the adoption of a three-strikes and you're out system to cut off access where there are repeated allegations of infringement.

Yet it would appear that ACTA is actually only part of the story. Canada is also currently negotiating a Comprehensive Economic and Trade Agreement with the European Union. The negotiations have been largely off the radar screen (and similarly secretive) with the first round of talks concluding in October in Ottawa. Intellectual property figures prominently in the agreement. In fact, the EU proposal for the IP chapter has just leaked online and the document is incredibly troubling. When combined with ACTA, the two agreements would render Canadian copyright law virtually unrecognizable as Canada would be required to undertake a significant rewrite of its law. The notion of a "made-in-Canada" approach – already under threat from ACTA – would be lost entirely, replaced by a made-in-Washington-and-Brussels law.

What are some of the EU's demands?

Copyright term extension. The current term of copyright law in Canada is life of the author plus 50 years. This is consistent with the term requirements under the Berne Convention. The EU is demanding that Canada add an additional 20 years by making the term life plus 70 years.
WIPO ratification. The EU is demanding that Canada respect the rights and obligations under the WIPO Internet treaties. The EU only formally ratified those treaties this week.
Anti-circumvention provisions. The EU is demanding that Canada implement anti-circumvention provisions that include a ban on the distribution of circumvention devices. There is no such requirement in the WIPO Internet treaties.
ISP Liability provisions. The EU is demanding statutory provisions on ISP liability where they act as mere conduits, cache content, or host content. ISPs would qualify for a statutory safe harbour in appropriate circumstances. There is no three-strikes and you're out language (which presumably originates with the U.S.).
Enforcement provisions. The EU is demanding that Canada establish a host of new enforcement provisions including measures to preserve evidence, ordering alleged infringers to disclose information on a wide range of issue, mandate disclosure of banking information in commercial infringement cases, allow for injunctive relief, and destruction of goods. There is also a full section on new border measures requirements.
Resale rights. The EU is demanding that Canada implement a new resale right that would provide artists with a royalty based on any resales of their works (subsequent to the first sale).
Making available or distribution rights. The EU is demanding that Canada implement a distribution or making available right to copyright owners.