Expert disputes copyright hearing testimony by CRIA lawyer Pfohl

A noted Ottawa copyright expert says that there could be dire consequences for Canada if it implements the World Intellectual Property Organization (WIPO) Internet treaties. His view contrasts sharply with March 9 testimony by the record labels’ counsel to the Standing Committee on Canadian Heritage. Macera and Jarzyna’s Howard Knopf says much of the testimony of the Canadian Recording Industry Association’s (CRIA) Richard Pfohl was disingenuous and that alternative interpretations of the WIPO Internet treaties are possible (CNM, March 17/04). Knopf, who occasionally represents big name copyright clients, but spoke with Canadian NEW MEDIA on the basis of his own personal perspective, says that several of Pfohl’s points sat particularly ill with him. For example, Pfohl says that there is an "international consensus" on the national treatment issue and that "..all of the leading international experts have said that in theory there is not a requirement to extend national treatment with regard to a private copying regime." Says Knopf: "That is simply incorrect. Dr. Mihály Ficsor, who was the senior WIPO official responsible for the WIPO treaties back in 1996, has since written an 800-page book published by Oxford that comes to the specific opposite conclusion. And unlike Silke von Lewinski, his analysis was not paid for by the CRIA or the CPCC (Canadian Private Copying Collective). Dr. Ficsor is without a doubt the leading authority on the WIPO treaties. The Heritage committee should be made aware of Dr. Ficsor’s analysis." One of the most interesting statements made by Pfohl during his testimony came when he was asked by MPs whether there would be any consequences if Canada implements the WIPO treaties in a way with which other countries don’t agree. Pfohl told committee members that "...there is no real world court that you’d be able to take this to. So in fact, as a practical matter, no one is going to hold Canada accountable and force it to change its laws should Canada become a signatory to this treaty...The short answer is that there wouldn’t be any dire consequences for Canada." Knopf, however, disagrees. "The Heritage committee should be made aware that the clear intention of the U.S. government is that current bilateral agreements and the proposed Free Trade Agreement of the Americas - which Canada will be under tremendous pressure to sign in the next couple of years - will not only require Canada to ratify the WIPO treaties but will make inadequate implementation subject to strong dispute settlement measures. This could force the adoption of full national treatment down the line. It’s quite possible that CRIA’s agenda is to get Canada into the WIPO treaties ASAP even with inadequate legislation, knowing full well that a successful U.S. trade challenge could soon follow. This could be a part of what I’ve called the free trade trap." Knopf also feels the committee doesn’t have all the facts at hand regarding the controversial private copying regime. Pfohl says: "Currently we collect a levy. It goes to performers and sound-recording makers, who are all Canadians." Pfohl went to great lengths during his appearance to put forward the view that the national treatment issue for foreigners under the private copying regime shouldn’t be a deal-breaker for WIPO implementation. Knopf responds: "He fails to point out that two thirds of the current levies, which are now probably cumulatively well over $100 million, go to composers, authors and music publishers on a full national treatment basis. It’s safe to assume that at least 50% of this two-thirds share goes to music publishers. And everyone knows that the major multinational record companies, who run CRIA, are also major music publishers. "He also fails to point out that Canada’s current levy scheme is already the richest music levy scheme in the world, yet the fact is that Canada accounts for barely more than 2% of the world’s music publishing market," Knopf states. "The bottom line is simply this: If Canada keeps its current private copying regime and the (Copyright) Board (of Canada) keeps its current calculation template, and Canada is forced to confer full national treatment, the levies will almost exactly double and most of the money will leave the country. It’s a simple exercise in arithmetics."

Expert disputes copyright hearing testimony by CRIA lawyer Pfohl

Broadcast | April 2, 2004

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