Coming clean on copyright

With the House of Commons now back to business, a parliamentary committee may be formed this week to conduct hearings on Bill C- 60, the federal government’s copyright reform package. While much of the public’s attention in recent days has focused on concerns the bill will harm education, the most controversial aspect of the forthcoming hearings will not involve those issues, but rather a pair of copyright treaties.

In 1996, the World Intellectual Property Organization ( WIPO), a U. N. agency based in Geneva, adopted the WIPO Copyright Treaty ( WCT) and WIPO Performances and Phonograms Treaty ( WPPT), frequently referred to as the WIPO Internet Treaties. A steady stream of lobby groups representing the movie, music, and software industries will point to the fact that Canada has yet to ratify these treaties after signing them in 1997 as evidence that our copyright law is outdated. But government documents obtained under an Access to Information request and revealed here for the first time, show how out of step the lobbyists are with our government’s own thinking. The treaties are indeed an important consideration in the policy process, but it is important that all Canadians, particularly committee members, separate fact from fiction. The myths that may be invoked in the months ahead fall into three categories:

1. Canada’s place in the international copyright world;

2. The impact of Internet treaty ratification on Canadian creators and consumers;

3. Whether Bill C-60 meets the treaties’ requirements. The arguments surrounding Canada’s place in the international copyright world frequently imply that Canada has failed to meet its international copyright obligations, that signing the treaty in 1997 now compels Canada to ratify it, and that Canada has fallen behind the rest of the world by moving slowly on ratification. Not one of these claims is true. Canada has not failed to meet its international obligations since it has no obligations under the treaties — under international law, obligations only arise once a country has ratified a treaty.

Moreover, Canada’s decision to sign the treaties was a signal of support, not a commitment to ratify. In fact, according to the previously mentioned Access to Information documents, at the time Canada considered signing the treaties, then- Canadian Heritage Minister Sheila Copps was advised by senior officials in her department that “ international convention is such that signing in no way binds Canada to ratify the treaties. It is a symbolic gesture.”

Finally, to hear supporters of the treaties describe it, it would appear that Canada is the last country in the world to move toward treaty ratification. The reality is different — of the countries that comprise the G-20, the large group of economically important nations, only six have formally ratified the copyright treaty. Far from playing catchup, Canada finds itself in the majority of G-20 countries by having adopted a wait- and- see approach. The treaties’ impact has been similarly exaggerated. Supporters argue that failure to ratify will result in diminished protection for Canadian artists outside the country and that ratification will not have an adverse impact on Canadian consumers. Once again, neither of these claims proves accurate under close scrutiny. Concerns about the protection of Canadian artists outside the country is based on the premise that Canadians will only enjoy stronger protections elsewhere if foreign artists benefit from equivalent protections in Canada.

In reality, ratification of the Internet treaties won’t provide Canadian artists with any additional protections in countries such as the United States and Japan since they already extend equal protection — known as national treatment — to local and foreign artists under existing trade agreements.

While ratification of the treaty will not benefit Canadian artists in foreign jurisdictions, foreign artists will enjoy great benefits from ratification to the detriment of Canadian consumers, since formal ratification of the WIPO Performances and Phonograms Treaty would require additional changes to Canadian copyright law, most notably providing national treatment for the controversial private copying levy. The levy, which generated nearly $40 million in revenue from Canadian consumers last year, treats Canadian artists far better than their foreign counterparts. Canada would be required to either drop the levy, convert it into a formal tax, or double its size in order to meet the new copyright obligations. Since neither a new tax nor total elimination of the levy seems likely, ratification would cost Canadians tens of millions of dollars that would promptly flow out of the country.

Given the potential windfall, it should come as little surprise to find that much of the pressure for ratification comes not from Canadians but rather from U. S. interests. In its annual report earlier this year, the U. S. trade representative called on Canada to follow the U. S. model on copyright reform. The pressure is greater from private- sector lobby groups. According to additional information obtained under an Access to Information request, last year the Recording Industry Association of America met with Canadian officials and called on Ottawa to ratify the treaties within seven weeks, presumably jumping ahead of issues such as health care and removing the need for any public consultation or debate.

If supporters of the Internet treaties persuade the committee to pursue ratification, they will likely

also argue that Bill

C-60 must be “ toughened” to meet the

WIPO standard. Using monikers such as “WIPO Lite,” they will claim that the U. S. provides the ideal model to emulate.

While Bill C-60 warrants some criticism, the decision to avoid the dangers inherent in the U. S. approach represents a more enlightened approach. Canada has appropriately sought to limit the applicability of certain Internet treaty provisions to incidents of actual copyright infringement. This is absolutely compliant with the treaties and may reduce the likelihood that the law will be used to curtail innovation and research through chilling lawsuits that have no connection to traditional copyright norms. The new Bill C-60 parliamentary committee will face a tough challenge since copyright reform is always a contentious issue. As dozens of interested parties line up to make their case, committee members must be sure to base their decisions on fact, not fiction. Michael Geist holds the Canada Research Chair in Internet and -commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.