Is Canada a 'Haven for Pirates' or a Sovereign Nation with It's Own Copyright Laws?

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claims that Canada is home to rampant music downloading, illegal movie camcording, counterfeit product purchasing and outdated copyright laws.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.