U.S. embassy cable highlights new twist in industry lobbying on ‘Priority Watch List’

Newly released U.S. embassy cables about Canada's copyright reform process have shone a spotlight on the industry lobbying that goes into the U.S. Special 301 Priority Watch List. The list is where the U.S. publicly identifies countries as laggards on copyright protection, but in a new twist, one cable highlights Canada's apparent willingness to go along with an elevation on the watch list if it meant a faster passage of copyright reform legislation in Parliament. Experts and insiders say the cable is further reason to call into question the list's legitimacy. New diplomatic cables released by Wikileaks this month contain several reports from the U.S. embassy in Ottawa about Canada's copyright reform process between 2005 and 2009. The Canadian government has been attempting to pass amendments to the Copyright Act for several years, in part to implement two Internet treaties of the World Intellectual Property Organization (WIPO). During a series of minority governments between 2005 and 2010, three different copyright reform bills were tabled at different times but each failed to pass due to prorogations or elections. The U.S. government has been pressuring Canada to update its copyright law with some controversial amendments similar to those included in the U.S. Digital Millennium Copyright Act (DMCA). One pressure tactic has been to include Canada on its Special 301 Priority Watch List, an annual list released by the United States Trade Representative (USTR), which identifies countries around the world that, in the view of the U.S., do not provide adequate intellectual property protections. One U.S. embassy cable released by Wikileaks, dated April 22, 2009, noted an April 20 meeting took place with Zoe Addington, director of policy in the industry minister's office, and Tanya Peatt, director of policy at the heritage minister's office. According to the cable, the officials said the Canadian government would not be ready to introduce a new copyright reform bill until the fall partly because the new industry and heritage ministers needed “time to ensure that they are comfortable with any new legislation.” The cable noted that Addington said “that if Canada is elevated to the Special 301 Priority Watch List (PWL), it would not hamper—and might even help—the GOC's ability to enact copyright legislation.” Canadian companies and industry groups were also lobbying the U.S. to pressure Canada to speed up the copyright reform process by elevating Canada's position on the list, the cable said. “Industry representatives are concerned that the government is dragging its feet on copyright reform and are calling for the USG to elevate Canada to the Special 301 Priority Watch List,” the cable said. Michael Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa, wrote about the cables in a report in the Ottawa Citizen this week, noting that, “ays later, Canada was elevated on the watch list.” The cable, and others released by Wikileaks, confirm that the list's ranking process is not a legitimate one, Geist said in an interview with The Wire Report. “Policy makers in the Canadian government have been very consistent in that it has no legitimacy,” Geist said. “It was clearly used by those supporting U.S.-style reforms as a method of ratcheting up the pressure.” Geist said Canada's position on the list treats it as “something akin to China or a Russia, but by any reasonable metric we are clearly not.” He said he believes the Canadian government's controversial proposal for strict legal protection for digital locks—the digital rights management on content and devices—comes directly from an interest in satisfying the U.S. The Conservative government proposed the measure in its last copyright reform bill, C-32, which died on the order paper this year due to an election. The 2011 watch list said the USTR's review process “examined IPR protection and enforcement in 77 trading partners” and involved “extensive research and analysis.” Canada is included in the “priority” list, the highest level, along with Algeria, Argentina, Chile, China, India, Israel, Indonesia, Pakistan, Russia, Thailand and Venezuela. The lower-level list below Canada's ranking includes Bolivia, Brazil, Colombia, Mexico, Philippines, Romania, Spain, Tajikistan, Ukraine, Uzbekistan and Vietnam. Other newly released cables show that U.S. pressure on Canada continued throughout earlier years as Canada prepared copyright reform bills. One U.S. embassy cable, dated Oct. 31, 2005, alluded to cooperation between Canadian rights-holder groups and U.S. government in a “good cop, bad cop” strategy. The Canadian rights holders would accept less stringent legal measures for Internet service provider (ISP) liability “as a signal to the GOC that they are willing to be 'more reasonable than the Americans,'” the cable said. Another cable, written Feb. 29, 2008, affirmed that the U.S. embassy “remains frustrated by the Government of Canada's continuing failure to introduce—let alone pass—major copyright reform legislation.” The cable noted that Prime Minister Stephen Harper, at a 2008 summit in Montebello, Que., told U.S. President George Bush that Canada would pass copyright legislation. One industry source close to government policy told The Wire Report in a background interview that insiders have known for some time that policy “was being driven by the PMO , and the PMO's main motivation was making sure that they were on good terms with the Americans.” The source added: “Most people kind of ridiculed the fact that we were on the watch list.” NDP MP and heritage critic Charlie Angus released a statement this week that said the U.S. cable shows the watch list "is being used as a bully tool" to pressure Canada when it is supposed to be "reserved for countries on the margin of international law." Stephen Waddell, national executive director of the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), said he is not surprised that the Canadian government suggested the U.S. elevate Canada's position on the watch list. He said he agrees that the Canadian government was trying to cultivate political conditions that are more favourable to moving quickly on copyright reform. “Clearly the governments, whether it’s the U.S. government or Canadian government or governments of other countries, work closely with the major industries,” Waddell said. “The concerns are all about protecting intellectual property rights, which frankly, we share.” Waddell acknowledged that the release of the cables weakens the U.S. tactic of using the watch list as a way to pressure countries but said “it doesn't change the reality that the Canadian government needs to act to strengthen intellectual property rights.” The U.S. embassy in Ottawa said it does not comment on leaks. Sébastien Gariépy, a spokesman for Heritage Minister James Moore, also said via email that the government does not comment on leaked documents, but added that “our approach to copyright legislation is a uniquely Canadian approach.” He said the “legal dynamic in the United States is entirely different” from Canada's and that the government's copyright reform legislation will protect and create jobs, promote innovation and attract new investment to Canada. In an interview with the Canadian Press published Thursday, Heritage Minister Moore said that, this fall, the government intends to introduce legislation the same as Bill C-32 and to continue where a legislative committee study of the bill left off before the 2011 election. Moore said he hopes to pass the bill before the Christmas break but said a ruling from the Supreme Court of Canada could require Parliament to make changes. The Supreme Court is looking at five cases related to fair dealing and downloading digital works under the Copyright Act. The court said Thursday it will hear the five cases together (case numbers 34210, 33800, 33888, 33921 and 33922). sdoyle@thewirereport.ca

U.S. embassy cable highlights new twist in industry lobbying on ‘Priority Watch List’

Broadcast | September 9, 2011

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