An Australian blogger reports on a recent conversation with Australian government officials discussing ACTA and copyright related issues. The report indicates that Australia - which changed its copyright laws under pressure from the U.S. as part of a trade deal - now borrows from the U.S. playbook in criticizing the current state of Canadian law.
Yesterday's ACTA leak that provides full detail on each country's negotiation position attracted immediate media attention, with the New Zealand press picking up on the story (and that country's tough position), while the Australian press lamented their country's relative silence at the negotiation table. And what of Canada? The Canadian positions on the Internet chapter culled from the EU leaked document are:
That's it. Compare the Canadian focus on clarifications of legal language and hints at opposition with the far-tougher, more explicit New Zealand positions:
Why is the Canadian delegation content to say virtually nothing and leave it to New Zealand to take the strongest position on these ACTA issues? Why does Canada not join with New Zealand to present a stronger front against the extension of ACTA far beyond copyright enforcement?
Nielsen Soundscan has just released the Canadian music sales figures for 2009. Notwithstanding the regular claims that the Canadian digital music market cannot develop without copyright reform, the Canadian market grew faster than the U.S. market for the fourth consecutive year. As the chart below demonstrates, digital music sales have grown faster in Canada than in the U.S. in every year since 2006:
| Year | Canada | United States |
| 2009 | 38% | 8% |
| 2008 | 58% | 27% |
| 2007 | 73% | 45% |
| 2006 | 122% | 65% |
While this does not suggest that the market is thriving - a down economy with more competition for the entertainment dollar it is a tough market - it does confirm yet again that attempts to link copyright reform to the development of a Canadian digital market are not borne out by the facts. Indeed, Canada has consistently grown faster than the United States (from an admittedly lower starting point given that digital music stores arrived later in Canada).
Moreover, as I pointed out last summer, the IFPI's global data further supports the conclusion that the Canadian digital music market is not the laggard that some would have the public believe. As of last year, Canada's digital market stood 7th worldwide, while ranking 6th for all recorded music - in other words, about what you would expect. Of the top 20 global markets for recorded music, the IFPI said that Canada ranked 5th for the percentage of digital sales.
Indeed, digital music sales as a percentage of total sales in Canada is ahead of every major European country. The U.S. may lead Canada (though growing at a far slower rate), but the IFPI reported that Canada is ahead of France, Britain, Spain, Belgium, Italy, Germany, Switzerland, the Netherlands, Austria, Sweden, Czech Republic, Finland, Greece, Hungary, Norway, Poland, Portugal, and Russia. Canada also leads countries such as Australia, New Zealand, Hong Kong, Singapore, Taiwan, Mexico, Argentina, Brazil, and South Africa. The global music market may be facing difficult times, but the industry's own data confirms that placing the blame on Canadian copyright laws is quite clearly misplaced.
Liberal leader Michael Ignatieff is on a campus tour this week and sources report that he is being asked about Canadian copyright policy at every stop. He responds that Canadian copyright policy must not be dictated by Washington. He says that Canada needs its own policies and is encouraging students to help work on the issue. While much more detail is needed - where does the party stand on ACTA, CETA, fair dealing, anti-circumvention rules, C-60/C-61, etc. - this is a promising start.
A new editorial from Nature criticizes Canadian science policy:
Some critics say Canada has no science policy at all. Others say it has unwritten laws that seem to let it muddle along. But muddling along isn't good enough in today's tough economic climate. Canada needs a bigger vision of where its science is going: a vision informed by organized scientists, and voiced by a strong position in government.
Today Public Knowledge is sponsoring World's Fair Use Day, described as a day to celebrate the doctrine of fair use and the benefits it brings to creators, innovators, and consumers. As many readers will know, Canada does not have a fair use provision but rather one called fair dealing. Given the focus on fair use, it is worth considering both the breadth of fair dealing in Canada as well as its limits. For those supportive of fair dealing, the good news is that the Supreme Court of Canada has ruled that it is a user right. In CCH Canadian v. Law Society of Upper Canada, a unanimous court ruled:
Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.
Treating fair dealing as a user right was a crucially important milestone that breathed new relevance into the provision. However, fair dealing only applies to a limited list of categories, namely research, private study, news reporting, criticism, and review. While this list can be interpreted broadly (ie. the Copyright Board treated song samples as consumer research), there are still many common activities that are not strictly permitted under Canadian copyright law:
These limits should not be underestimated as they unquestionably have a stagnating effect on innovation, a chilling impact on creators, and create uncertainty for consumers, students, and businesses. So as we celebrate the breadth of fair use (dealing), let's not forget that reform is needed to ensure that the benefits of a balanced fair dealing provision accrue to all.
More than 20 years ago, Canada negotiated a free trade agreement with the United States that attracted enormous public attention. The first FTA - to be followed a few years later by the North American Free Trade Agreement that brought Mexico into the mix - played a pivotal role in a national election and ultimately resulted in dramatic changes to the economy and Canadian law.
My weekly technology law column (Toronto Star version, homepage version) notes that earlier this year, Canada and the European Union announced plans to negotiate a Comprehensive Economic and Trade Agreement (CETA), possibly the biggest Canadian trade negotiations since NAFTA. The first round of talks took place in Ottawa in October, yet the treaty has generated practically no public scrutiny. That may change following the leak last week of the European Union's proposed intellectual property chapter.
Simply put, the EU demands target the entire Canadian economy. They include increased patent protection for pharmaceutical companies, heightened support for famous trademarks, and new rules for industrial designs. The EU is also keen on restrictions on the use of geographic indications, which would limit the ability of Canadian wine and cheese makers to use such words as champagne or parmesan.
The EU has emphasized its desire that Canada comply with a series of treaties that have not been signed or ratified. Demands focus on Canadian accession to the Hague System for the International Registration of Industrial Designs, implementation of the World Intellectual Property Organization Internet treaties, and compliance with both the Trademark Law Treaty and the Patent Law Treaty.
The EU draft indicates the treaty would also dramatically reshape Canadian copyright law. Indeed, when combined with the Anti-Counterfeiting Trade Agreement (the other ongoing secret negotiation), the two agreements would render Canadian copyright law virtually unrecognizable. The notion of a "made-in-Canada" approach promoted by Industry Minister Tony Clement - already under threat from ACTA - would be lost entirely, replaced by a made-in-Washington-and-Brussels law.
The leaked document includes the following demands:
Copyright term extension. The current term of copyright protection in Canada is life of the author plus 50 years. This is consistent with the term requirements under the international law. The EU is demanding that Canada add an additional 20 years by making the term life plus 70 years.
Digital lock provisions. The EU is demanding that Canada implement digital lock provisions that include a ban on the distribution of circumvention devices. There is no such requirement in the WIPO Internet treaties.
Enforcement provisions. The EU is demanding that Canada establish a host of new enforcement provisions including measures to preserve evidence, ordering alleged infringers to disclose information on a wide range of issues, mandating disclosure of banking information in commercial infringement cases, as well as allowing for injunctive relief and destruction of goods. There is also a full section on new border measures requirements.
Resale rights. The EU is demanding that Canada implement a new resale right that would provide artists with a royalty based on any resales of their works subsequent to the first sale. This new right would mean that paintings, sculptures, and other works would carry an additional royalty fee for any sales after the creator has sold their work.
While the leaked document may only represent the starting European position, there is little doubt there will be enormous pressure on Canadian negotiators to cave on the IP provision in return for gains in other areas. CETA may not have attracted much attention to date, but its long-term implications could ultimately exceed the first Canada/U.S. FTA.
The World Intellectual Property Organization is meeting this week with considerable momentum toward work on a Treaty for the Blind that would establish important copyright limitations and exceptions to ensure broader access for the sight disabled. While the U.S. had emerged as a leader with a surprising shift in approach, attendees report that Canada has been missing in action and maintaining a very low profile. It's incredibly discouraging to see Canada - which fashions itself as a leading voice that can bridge the gap between delegations - doing so little on such an important issue.
There are multiple reports this morning that Amazon is finally selling the Kindle in Canada. The device comes with wireless downloads, which suggests that a deal has been struck with a Canadian carrier. But which one?
Rebecca Tushnet liveblogs a "debate" on Canadian IP policy in Washington, DC between recording industry lawyers on both sides of the border. Canada is described as facing a "very dark situation."