Mark Kohras is a JD Candidate at Osgoode Hall Law School.
Every year, the Office of the United States Trade Representative (USTR) releases its Special 301 Report. The report provides a detailed list of countries that the United States believes are deficient when it comes to intellectual property laws or enforcement. Perhaps it is no small surprise, given its inclusion on previous lists, that an odd country finds itself on the highest priority list, among traditional piracy and counterfeiting havens such as China and Thailand: Canada.
The Special 301 Report is essentially a United States “hall of shame” used mainly as a tool to place political pressure on foreign governments to conform to United States intellectual property law standards. Although the list does not carry any direct repercussions, inclusion on the list can lead to trade disputes and possible economic sanctions by the US. Although Canada’s inclusion on the list may seem out of place at first, it may not be so surprising that they are paying such close attention to Canada, given our status as the US’s top trading partner.
The US’s concerns stem from a few issues, chief among them being Canada’s copyright laws. Recognizing that Canada’s 3rd attempt at copyright reform was once again unsuccessful (as the result of yet another election), the United States continues to push for a badly needed update to Canada’s Copyright Act, which has not been amended since 2005 (and not had a major update since long before then). As the report notes “The United States encourages Canada to make the enactment of copyright legislation that addresses the challenges of piracy over the Internet, including by fully implementing the WIPO Internet Treaties, a priority for its new government.”
The United States is also concerned about trafficking of counterfeit and pirated goods at the border, requesting that Canadian border officials be granted the authority to conduct warrantless seizures of suspected pirated or counterfeit material, stating that “Canada should provide its Customs officials with ex officio authority to effectively stop the transit of counterfeit and pirated products through its territory.”
The 2011 report also marks the first time the United States has issued an invitation to countries on the list to work together with the United States to “cooperatively develop action plans to resolve [intellectual property rights] issues of concern”. However, given the recent election of a majority government and the Conservative government’s pledge to re-introduce the Copyright Modernization Act (previously Bill C-32) it is likely that Canada’s fourth attempt at copyright reform will pass. Hopefully, with the US’s major concern out of the way, Canada will be taken off the priority watch list for 2012.
The priority watch list is the highest watch list and names countries that the United States feels are the top IP offenders. It includes China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Pakistan, Thailand, and Venezuela. To read the special report, including the United States concerns regarding each of these countries, please see here.