Sean Jackson is a first year JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.
In the International Intellectual Property Alliance’s (IIPA) 2011 Special 301 Report on Copyright Protection and Enforcement, the IIPA recommends that Canada retain its spot on the priority watch list. The IIPA described Canada as “… standing virtually alone among developed economies in failing to bring its laws up to global minimum standards for the digital networked environment.”
Now don’t fret, our coastal waters are not being threatened by the swashbuckling decedents of the notorious Blackbeard. Canadian piracy is of the digital variety. The eye patch wearing, peg legged pirates of years past have been replaced with children, businessmen and yes, even grandparents who are illegally copying and distributing movies, music, software and books over the Internet. Historically, Canada has not always been a safe haven for Internet pirates. In fact, over fourteen years ago Canada played an important role in the negotiation of the World Intellectual Property Organization (WIPO) Internet Treaties. Since then however, Canada has developed a negative reputation with respect to Internet piracy. In the International Intellectual Property Alliance’s (IIPA) 2011 Special 301 Report on Copyright Protection and Enforcement Canada maintained its infamous reputation as the IIPA recommended that Canada retain its spot on the priority watch list. While the IIPA report acknowledges Canada’s current attempt at reforming copyright law, it highlights numerous issues with the proposed reform, draws attention to enforcement issues and outlines numerous recommendations for bringing Canadian standards up to par.
Canada’s most recent attempt at reforming copyright law comes in the form of Bill C-32. The IIPA report states that while it supports the objectives of Bill C-32, the actual text is ineffective in meeting these objectives. Among the numerous critiques of Bill C-32, there are three notable issues addressed by the IIPA. According to the report, while the TPM provision finally brings Canada in line with current international standards, the proposed exceptions have the potential to do more harm then good and should only be used in very limited circumstances and for limited periods of time. In addition, the IIPA claims the proposed section for dealing with online piracy could fall significantly short of its objectives by creating immunities for network service providers without providing incentives for them to cooperate with copyright owners. Finally, the IIPA takes significant issue with the statutory damages proposed in Bill C-32. When an individual is found guilty of copyright infringement for non-commercial purposes the maximum fine is $5,000, regardless of how many files were copied and/or distributed.
Another significant problem regarding piracy in Canada identified by the IIPA report is enforcement. Specifically, the IIPA draws attention to Canadian border security, or the lack thereof, and how easy it is for pirated material to enter the country. According to the IIPA, “No Canadian enforcement authority currently has adequate resources, training and legal tools to tackle the problem effectively”. A porous border allows individual as well as organized groups of pirates to set up shop within Canada’s borders. From within this legislative safe haven, pirated material can be distributed illegally around the world. It would seem therefore that the first step in fighting Internet piracy begins with grass roots law enforcement.
In addition to highlighting its many concerns with the current Canadian copyright landscape, the IIPA report made several recommendations. With respect to legislative reform, the new law should bring Canada into full compliance with international standards, provide incentives for Internet service providers to cooperate with copyright owners and establish clear liability with effective remedies. Furthermore, the reform should ensure that any exceptions to copyright protection conform to international standards. To deal with the aforementioned enforcement issues, the IIPA suggests that legislative changes should be made to empower customs officials to seize pirated material without a court order. This legislative change should be accompanied by an increase in resources devoted to anti-piracy enforcement at the boarder and within Canada.
In its entirety, the IIPA’s report serves as yet another notice that reform is needed to Canadian copyright law and highlights the problems associated with the governments proposed reform outlined in Bill C-32. A dense fog surrounds the fate of copyright reform in Canada. It is unclear whether the current government will heed to this advice or if they will even have the chance as Bill C-32 may be forced to walk the plank with a spring election looming.
[Note: This post was revised on March 22, 2011 to clarify that the IIPA made recommendations to the U.S. Trade Representative (USTR) that Canada should continue to be placed on the USTR’s watch list.]