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ACTA Threatens Made-in-Canada Copyright Policy

Tuesday November 10, 2009
Last week Canadian officials travelled to Seoul for the latest round of closed-door negotiations on an international treaty called the Anti-Counterfeiting Trade Agreement (ACTA).  Battling commercial counterfeiting would seem like a good idea, but leaks have revealed that ACTA - which has been conducted with unprecedented secrecy - is really about copyright, rather than counterfeiting.

My weekly technology law column (Toronto Star version, homepage version) notes that from the moment the talks began last year, observers noted the approach was far different from virtually any other international treaty negotiation.  Rather than negotiating in an international venue such as the United Nations and opening the door to any interested countries, ACTA partners consisted of a small group of countries (Canada, United States, European Union, Japan, Korea, Australia, New Zealand, Mexico, Morocco, and Singapore) meeting in secret and opposed broadening the process. The substance of the treaty was also accorded the highest level of secrecy.  Draft documents were not released to the public and even the locations of negotiations were often kept under wraps.  In fact, the U.S. government refused to disclose information about the treaty on national security grounds.    

Despite the efforts to keep the public in the dark, there has been a steady stream of leaks. Earlier this year, it was revealed criminal provisions would target both commercial and non-commercial infringement, creating the prospect of jail time even in cases where there was no intent to profit.  Further, border guards would be given new powers to search people and seize products as they enter a country.

Just as negotiators were sitting down to discuss ACTA's Internet-related provisions last Wednesday, information on those proposals also leaked.  The disclosures were the most disturbing to date, since they conclusively demonstrated that ACTA is fundamentally not a counterfeiting treaty, but rather one focused on copyright.

The Internet provisions feature specific requirements on the legal protection for digital locks that extend far beyond those required under international law.  Moreover, they would move Canada toward a three-strikes and you're out approach that requires Internet providers to cut off subscriber access on three allegations of infringement.  Canada's successful "notice and notice" approach to addressing infringing content hosted by Internet providers - adopted by both Conservative and Liberal copyright bills - would be rejected in favour of a U.S. model that requires removal of content without evidence of infringement.

The combined effect of these provisions would dramatically reshape Canadian copyright law and eliminate sovereign choice on domestic copyright policy. These issues were at the heart of thousands of submissions as part of this summer's national copyright consultation. However, if Canada agrees to ACTA, flexibility would be lost and the government would be forced to implement a host of new reforms.

Such an approach contradicts recent comments from Industry Minister Tony Clement. In an interview earlier this month, he stated "Canada and its international trading partners each have distinct copyright policies, laws and approaches for addressing the challenges and opportunities of the Internet. Canada's current framework provides strong intellectual property protections and our copyright laws apply in the digital context, including on the Internet. Moreover, Canada's regime for the protection and enforcement of intellectual property rights is fully consistent with its international obligations."

Yet the ACTA provisions seek to remove those distinctions.  If adopted, the robust copyright debate that occurred over the summer would be rendered moot.  Instead, it would appear that a made-in-Canada approach would give way to decisions made last week at secret meetings in Seoul.

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