Global trade agreement throws ‘made in Canada’ copyright policy into question

Legal experts disagree on whether the controversial Anti-Counterfeiting Trade Agreement would compel Canada to abandon “made-in-Canada” copyright reform. Public controversy erupted this fall after a series of leaks revealed that the ACTA proposes significant digital copyright reforms modeled on U.S. intellectual property law. Critics have called the secret negotiations a form of U.S. “policy laundering” intended to circumvent the work of the World Intellectual Property Organization (WIPO). Canada is one of a handful of countries taking part in the ACTA negotiations, along with the United States, the European Union, Switzerland, Japan, and a few other states. Secret negotiations surrounding the agreement have taken place since 2007. “The treaty’s only going to be binding on those countries that actually adopt it,” Barry Sookman, a partner and copyright lawyer at McCarthy Tétrault in Toronto, said in an interview. Canada could essentially walk away from the agreement—and refuse to sign—if it is opposed to the final text, he said. The leaked Internet chapter of the ACTA text proposes a “graduated response” system of ISP liability, in which Internet providers could be required to cut off Internet access for subscribers who allegedly commit a series of copyright infringements. It also proposes copyright laws modeled on the United States’ Digital Millennium Copyright Act (DMCA). These include a provision that would make it an infringement of copyright to circumvent electronic copy-protection and access-control programs—known as digital rights management. In Parliament’s Question Period on Dec. 1, NDP MP Charlie Angus said the ACTA leaks exposed the government’s summer consultations on copyright policy as “a total sham” that will “deep six” Canada’s independence on copyright policy. Angus said the ACTA provisions “read like a wish list for the U.S. corporate lobby.” Industry minister Tony Clement responded by saying that the Government of Canada has not “adhered to or agreed to anything” in the ACTA, and that the “negotiations are in fact subservient to any legislation that is put forward in this House.” Clement added that he and Heritage minister James Moore consulted in good faith with Canadians over the summer, and that the government has made efforts to ensure that the public is aware of government’s copyright reform initiative. Sookman, an advocate for stronger copyright law in Canada, recently wrote on his blog that critics are unnecessarily spreading “fear and panic” about ACTA. Canada’s place at the negotiating table is an opportunity for the country to ensure that Canada’s independence on copyright reform is not compromised. “Canada being at the table enables Canada to help negotiate something that may be palatable, reasonable, and consistent with what it wants its made-in-Canada approach to be,” he said. But Howard Knopf, a copyright lawyer at Macera & Jarzyna LLP in Ottawa and a critic of the ACTA and DMCA-style copyright law, said he’s concerned about Canada’s declining influence in the world and that Canada does not wield the necessary honest broker authority to influence the U.S. and Europe. “We’re going down in the world in terms of diplomatic punch, and that’s going to get worse if we just go with the flow on things like ACTA,” Knopf said. Michael Geist, a law professor and the Canada Research Chair of Internet and e-commerce at the University of Ottawa, has predicted that efforts are underway to conclude the ACTA negotiations by the end of 2011 and that by 2012 there will be pressure to put the measures into international trade agreements. Sookman said that even if Canada signs the proposed trade agreement, the country may not be forced to change its domestic law according to the text. The proposed agreement is secret and it’s not clear whether enforcement mechanisms would be in place to penalize parties that fail to implement the proposals. For example, Canada signed two treaties of WIPO in 1997, but still has not implemented their provisions. Not does Canada have any international obligations to do so. “We’ve got an international moral commitment to implement the WIPO treaties, but there’s no sanction that any of the other member states can take,” Sookman said, adding that the ACTA could be similar. “It could be an agreement that everyone agrees to, but there’s no mechanism for enforcing it.” But Knopf said that if Canada signed the ACTA, there would be significant political pressure to implement and ratify it. “If we were to sign onto it, there would be enormous pressure to ratify it, and we would have to drastically change our laws in order to do so,” Knopf said. “The copyright consultation process that we just went through would be moot and down the toilet.”

Global trade agreement throws ‘made in Canada’ copyright policy into question

Broadcast | December 10, 2009

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