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Copyright Lobby Group Makes the Case for Flexible Digital Lock Rules

By Michael Geist

The International Intellectual Property Association, which represents large copyright lobby groups such as the RIAA, MPAA, BSA, and ESA, has released its annual report on the state of intellectual property protection in dozens of countries around the world. The report is designed to convince the U.S. government to place countries on the "Special 301 watchlist". Canada is regularly cited, though Canadian officials have noted:

In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

This report is what Canadian officials have in mind when they talk about it being driven entirely by U.S. industry. There are many aspects worth noting in this year's report - the criticism of countries like Vietnam and the Philippines for encouraging the use of open source software (the Vietnamese program was established to help reduce software piracy), the criticism of Bill C-32's digital lock provision that allows cabinet to establish new exceptions (the IIPA would like any new exceptions to be both limited and for a limited time), and the near universal demand that countries spend millions of public dollars on increased policing, IP courts, and public education campaigns.

Of particular note, however, is the fact that the IIPA report provides a fairly convincing case that there is considerable flexibility in implementing the WIPO Internet treaty anti-circumvention rules.



The IIPA hopes to make the opposite case by claiming that country-after-country should amend their digital lock rules to make them more like the U.S. DMCA. Yet the picture that emerges is that dozens of countries around the world have rejected that DMCA approach in their effort to comply with digital lock requirements found in the WIPO Internet treaties. Rather, consistent with the flexible language found in the treaties, there are a wide range of implementation approaches. Note that the list includes countries in the European Union and OECD as well as countries that have acceded to WIPO Internet treaties or are part of the Anti-Counterfeiting Trade Agreement.

Countries cited by the IIPA include:

• Argentina, which is a member of the WIPO Internet treaties but has not introduced anti-circumvention rules into its domestic law
• Belarus, whose anti-circumvention rules do not cover trafficking in circumvention devices or access controls
• Brazil, which has proposed anti-circumvention rules without covering both access and copy controls, without a prohibition on trafficking in circumvention devices, and without criminal remedies
• Chile, which recently reformed its copyright law but did not include anti-circumvention measures
• Greece, whose anti-circumvention rules do not cover both access and copyright controls or provide civil remedies for software programs
• India, which has proposed anti-circumvention rules with a fair dealing circumvention exception, do not cover access controls, and do not cover trafficking in circumvention devices
• Indonesia, which has joined the WIPO Internet treaties, but has not implemented anti-circumvention provisions
• Israel, which has no anti-circumvention rules and has rightly asserted that there is a "lack of uniform implementation worldwide."
• Kuwait, which has proposed anti-circumvention rules that allow circumvention for permitted purposes
• Malaysia, which has proposed anti-circumvention rules that may not include access controls
• Mexico, which has acceded to the WIPO Internet treaties but has not implemented anti-circumvention rules
• the Philippines, which has one copyright reform bill with anti-circumvention rules that do not include access controls or cover trafficking in anti-circumvention devices
• Poland, which acceded to the WIPO Internet treaties in 2003 and 2004, but whose anti-circumvention rules do not cover circumvention devices
• Romania, whose anti-circumvention rules only cover circumvention devices, not acts of circumvention
• Russia, which proposed anti-circumvention legislation in a November 2010 draft that includes many digital lock exceptions
• Singapore, which the IIPA says needs stronger criminal penalties for violations of its anti-circumvention rules
• Spain, whose courts have concluded that "devices primarily designed for purposes of circumvention are lawful when capable of some ancillary non-infringing use."
• Switzerland, which implemented the WIPO Internet treaties in 2008 and has an circumvention exception for any "use permitted by law."
• Thailand, which has created draft copyright legislation that may have excluded access controls from the anti-circumvention rules
• Turkey, which joined the WIPO Internet treaties in 2008 but does not have anti-circumvention rules
• Ukraine, which acceded to the WIPO Internet treaties in 2002 but whose anti-circumvention rules require proof of circumvention
• Vietnam, which prohibits trafficking in circumvention devices but does not apply the provision to related rights

The IIPA does not include many other countries with anti-circumvention rules that differ from the U.S. model including ACTA partners New Zealand and Japan. The IIPA report provides a convincing case that the global community views the WIPO Internet treaties digital lock provisions as providing considerable flexibility in implementation. The notion that Canada faces a risk of adopting a flexible approach is undermined by the practices of countries in Europe, Asia, and the Americas, many of which have soundly rejected the U.S.-style DMCA system.

Full post as published by Michael Geist on February 17, 2011 (boomark / email).