The International Intellectual Property Alliance (IIPA), of
which Microsoft and Apple are members, has asked the US Government
to put Canada on its high priority blacklist of intellectual
property offenders, arguing the Great White North is not doing
enough to prevent piracy, and complaining peevishly:
"Canada's long tenure on the USTR Watch List seems
to have had no discernible effect on its copyright policy. Almost
alone among developed economies in the OECD, Canada has taken no
steps toward modernizing its copyright law to meet the new global
minimum standards of the WIPO Internet Treaties, which Canada
signed a decade ago. Its enforcement record also falls far short of
what should be expected of our neighbor and largest trading
partner. Pirates have taken advantage of the gaps in Canadian law
to make it a leading exporter, both of camcorded masters that feed
audio-visual piracy worldwide, and of devices - illegal in most
global markets besides Canada - that are intended to circumvent
technological protection measures used by the publishers of
entertainment software. Canada lacks effective border controls on
pirated products, and most of its other enforcement efforts suffer
from insufficient resources and a lack of deterrent impact. To
underscore US insistence that Canada take action to address the
serious piracy problem it has allowed to develop just across our
border, and that it bring its outmoded laws up to contemporary
international standards, IIPA recommends that Canada be elevated to
the Priority Watch List in 2007."
It may be true that Canadians are more likely than Americans to
download music files from the Internet and use peer-to-peer,
file-sharing networks. On the other hand, these accusations may be
overblown. According to a commentary in the
Toronto Star by Canadian academic Michael Geist:
"Based on recent media coverage, people unfamiliar
with Canada could be forgiven for assuming that all Canadians sport
pirate eye-patches while searching for counterfeit treasure. The
'Canada as a piracy haven' meme has been floated with disturbing
frequency in 2007 with regular claims that Canada is home to
rampant music downloading, illegal movie camcording, counterfeit
product purchasing and outdated copyright laws.
"Moreover, movie camcording in Canada impacts
roughly 3 per cent of Hollywood films (not 50 per cent as initially
alleged) and Canadian copyright law is consistent with
international treaty obligations.
"Nevertheless, the cumulative effect of the piracy
coverage has left some officials humming 'Blame Canada' and
wondering whether the country deserves to be classified as a rogue
nation when it comes to intellectual property matters."
That's certainly the IIPA's position, with an ambitious
laundry-list of demands that Canada:
- Enact legislation bringing Canada into full compliance with the
WIPO "Internet" Treaties (WIPO Copyright Treaty [WCT] and WIPO
Performances and Phonograms Treaty [WPPT])
- Create strong legal incentives for Internet Service Providers
(ISPs) to cooperate with copyright owners in combating online
piracy
- Amend the Copyright Act to clarify the scope of the private
copying exception for sound recordings
- Amend the Copyright Act to clarify that illicit file-sharing
services are a violation because they authorize infringement
- Amend the Criminal Code to make unauthorized camcording an
indictable offense
- Make legislative, regulatory or administrative changes
necessary to empower customs officials to make ex officio seizures
of counterfeit and pirate product at the border
- Increase resources devoted to anti-piracy enforcement both at
the border and within Canada
- Direct the RCMP, CBSA, and Crown prosecutors to give high
priority to intellectual property rights enforcement, including
against retail piracy and imports of pirated products, and to seek
imposition of prison sentences for material infringements
The Bush Government decided against including Canada on the list
prime piracy suspects, which includes China, Russia, Argentina,
Chile, Egypt, India, Israel, Lebanon, Thailand, Turkey, Ukraine,
and Venezuela.
However, Canada remains in the second division of copyright
miscreants for the fourth year in a row, in the company of Belarus,
Belize, Bolivia, Brazil, Colombia, Costa Rica, Dominican Republic,
Ecuador, Guatemala, Hungary, Indonesia, Italy, Jamaica, South
Korea, Kuwait, Lithuania, Malaysia, Mexico, Pakistan, Peru,
Philippines, Poland, Romania, Saudi Arabia, Taiwan, Tajikistan,
Turkmenistan, Uzbekistan, and Vietnam.
The IIPA expressed disappointment adding that Canada "continues
to stand almost alone among developed countries in its failure to
implement the obligations of the two WIPO digital treaties, and
weak enforcement in both hard goods and Internet piracy continues
to cause great damage to legitimate rights holders, both of
Canadian and US copyright products."
The IIPA blacklist is initiatory to a process that can end in
international trade sanctions. The organization complains in its
report that
"Canada remains far behind virtually all its peers
in the industrialized world with respect to its efforts to bring
its copyright laws up to date with the realities of the global
digital networked environment. Indeed, even most of the major
developing countries have progressed further and faster than Canada
in meeting this challenge. Although the new Canadian government
that took office in March 2006 expressed its commitment to
modernization of Canada's copyright laws, to date it has not even
released a draft of legislation."
You can download the full IIPA report in PDF format here:
<http://www.iipa.com/2007_SPEC301_TOC.htm>
The Audacity
I continue to marvel at the audacity of the IIPA and its
fellow-travelers in the RIAA and the MPAA, the Business Software
Alliance, and, for that matter, The Canadian Alliance Against
Software Theft, with their arrogant assertion that their vested
interest point of view on the issue of intellectual property rights
represents some sort of moral imperative that must be applied
universally. Presumably, the only thing than would satisfy them is
for all countries to adopt the bizarre and draconian provisions of
the US Digital Millennium Copyright act, which has trampled fair
use rights Americans used to enjoy underfoot.
I admire America greatly, and there can be few Canadians that
are more pro-American than I am, but one US attribute I do not
admire is the tendency of US legislators to kowtow to business
lobbies and special interest pleaders, which has resulted in
counterproductive legislation like the DMCA and many other laws
that favor business interests over the interests of the broader
community - an ethic perhaps most concisely captured in President
Calvin Coolidge's famous affirmation, "The business of America is
business," and GM CEO Charlie Wilson's comment to a Senate
subcommittee hearing in 1952: "What is good for the country is good
for General Motors, and what's good for General Motors is good for
the country."
Copyright laws are merely an arbitrary and
mutable legislative construct, and do not necessarily carry
objective moral weight.
Listening to the whiners of the IIPA, et al., you might infer
that US-style copyright laws were handed down on stone tablets by
the Almighty. They were not, and not everyone in the world bestows
on the abstract concept of intellectual property rights the
quasi-religious reverence they are accorded in lawsuit-happy
America. Copyright laws are merely an arbitrary and mutable
legislative construct, and do not necessarily carry objective moral
weight. New York University assistant professor of culture and
communication Siva Vaidhyanathan, one of America's foremost
scholars of intellectual property and its role in contemporary
culture, has argued that under the DMCA, arts and culture are
losing to corporations and governments, and that swapping songs,
files, and ideas can benefit and strengthen society.
In his book Copyrights and Copywrongs, Mr. Vaidhyanathan
argues that while digital technology has allowed artists,
librarians, and academics to address culture in new ways, copyright
law is hampering those innovations. He vigorously opposes the
recording industry's attempts to stifle file sharing and advocates
the Creative Commons
alternative-copyright project spearheaded by Stanford University
law professor Lawrence Lessig,
What the copyright bullies fail to acknowledge is that
intellectual-property is not some sort of natural right, that
intellectual-property "theft" has been the norm for most of human
history, and the "modern" copyright era dates back less than 100
years to 1914 when ASCAP was formally organized to license the
performance rights. Music was not even included in the first
federal copyright passed by Congress in 1789; it didn't get added
until 1831.
Thus, rather than representing some sort of categorical moral
imperative, copyright legislation is rooted in monopolism and
censorship, and has, in our time, been expanded in scope far beyond
its original intent at the behest of business interests. The
original US Copyright Act granted copyright-holders "the exclusive
right to print, publish, and sell a copyrighted work for fourteen
years with a second fourteen-year term possible." There were no
rights given to the copyright holder regarding the public
performance of the work, nor could the holder control adaptations
or derivative works.
Sovereignty
Canada, like other sovereign nations, has developed its own
copyright statutes, conventions, and body of case law which does
not necessarily fall into lockstep with the US, In March 2005,
Canadian Federal Court Justice Konrad von Finckenstein ruled that
the Canadian Recording Industry Association (CRIA) had failed to
prove 29 unnamed file sharers sued by the muscibiz organization had
violated copyright material owned by its members. His ruling
reaffirmed and amplified a previous decision by the Copyright Board
of Canada that downloading music in Canada is legal. It appears
that the copyright bullies just can't get over that.
According to Global Digital Living, a multinational survey
conducted by Dallas, Texas-based Parks Associates, more than 40% of
all Canadian households with broadband Internet hookups download
music files on a monthly basis, compared with 28% of similar
American households. Additionally, one-third of all Canadian
broadband-connected households use a peer-to-peer (P2P) network
each month, but in the United States, this figure is just 16%.
But it isn't as if there is no protection for the music and
entertainment industry pigopolists in Canada. Canadian copyright
laws prohibit duplicating software without permission, making
multiple unauthorized copies for use by different users within an
organization, and giving an unauthorized copy to another
individual. Individuals or businesses caught with pirated software
are at least theoretically liable to criminal penalties for
copyright infringement, including fines up to $1 million, jail
terms up to five years, or both.
The Copyright Board of Canada has also approved and implemented
a "levy" on recordable media since 1998, which funds a compensation
plan for recording artists whose financial estate is alleged to be
harmed by people pirating copyrighted music off records, tapes, and
CDs.
Copyright Protection Is Good
I'm not suggesting that there should be no legal protection of
intellectual property. I'm a producer of copyrighted material
myself, and my point certainly isn't that content producers should
not be fairly compensated for their work. However, I also don't
think the ethics of intellectual property in the digital age have
been adequately worked out, and I emphatically do not believe that
draconian, heavy-handed impositions like the Digital Millennium
Copyright Act are morally defensible (although they, of course,
carry the provisional force of law in America).
Unjust laws can be overturned through the political process. The
task is come up with something fair and equitable to all
stakeholders, which includes consumers, to replace them with.
As fellow Canadian Mark Steyn, a columnist for the Chicago
Sun-Times and The Atlantic Monthly, observed some time
ago in a National Post op-ed, copyright has generally worked
in the favor of big corporate holders, so long as they had a lock
on the means of widespread distribution. However, Steyn noted, "The
Internet's changed all that: It's slipped beyond the grasp of Sony
and Warners. They can win the suit, but not the war... We are
witnessing the end of enforceable copyright."
"And, when you think about it," Steyn concludes, "it couldn't
happen to a nicer bunch of guys than all those record-company
limousine liberals who, from Elvis to Eminem, have perpetrated the
most ludicrous confidence trick of all: half a century of ruthless
capitalist corporate continuity masquerading as radical, dangerous,
progressive permanent revolution... You say you want a revolution?
Here, belatedly, it comes."
I hope he's right. As a Canadian citizen and taxpayer, I have
urged Canada's current Heritage Minister Bev Oda, who is
responsible for the copyright legislation file, to resist pressure
from the music and entertainment industry pigopolies and maintain
Canada's historically more fair and balanced approach to
intellectual property legislation.
