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USTR's Bully Report Unfairly Blames Canada Again

By Michael Geist

The U.S. government has released its annual Special 301 report in which it purports to identify those countries with inadequate intellectual property laws.  Given the recent history and the way in which the list is developed, it will come as no surprise that the U.S. is again implausibly claiming that Canada is among the worst of the worst.  As a starting point, it should be noted that the Canadian government does not take this exercise particularly seriously.  As an official with the Department of Foreign Affairs once told a House of Commons committee:

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 year's report is particularly embarrassing for the U.S. since it not only lacks in credible data, but ignores the submission from CCIA (which represents some of the world's largest technology and Internet companies including Microsoft, Google, T-Mobile, Fujitsu, AMD, eBay, Intuit, Oracle, and Yahoo) that argued that it is completely inappropriate to place Canada on the list.  The technology giants reminded the USTR that "Canada's current copyright law and practice clearly satisfy the statutory 'adequate and effective' standard. Indeed, in a number respects, Canada's laws are more protective of creators than those of the United States."

With respect to the actual data, the USTR report is largely rhetoric rather than reality.  The reality is:

• According to the software industry's own piracy numbers, Canada rate is declining and is dramatically lower than any other country on the priority watch list.  Moreover, even the Business Software Alliance has characterized Canada as a "low piracy country."
  
• According the recording industry's own numbers, the Canadian recording industry did not decline last year as badly as the U.S. or Japan and it ranked well ahead of the global average for digital music sales growth.
• According to the motion picture industry, illegal camcording has declined rapidly in Canada in recent years.  Canada is one of the only countries in the world with criminal convictions for such activities.
• Last year Canada amended its Proceeds of Crime regulations by removing the Copyright Act from the list.  The change had been requested by copyright lobby groups.
  
• Canada is often characterized as a prominent home for BitTorrent sites, yet there are more sites hosted in European countries such as the Netherlands but it is not included on the list.
• Canada is the only participant in the Anti-Counterfeiting Trade Agreement to be named to the Priority Watch List.  Apparently, our involvement in those talks counts for little.
  
• Comparative analysis of U.S. and Canadian copyright law identifies numerous areas where Canada's copyright laws are stronger than those found in the U.S.
  
• The RCMP has prioritized intellectual property enforcement and conducted thousands of investigations in recent years.
  
• Canadian enforcement measures include a host of other provisions that are not found in many countries that do not make the USTR list, such as statutory damages and anti-camcording rules.

Looking beyond just Canada, the list is so large, that it is rendered meaningless.  According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection.  Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection.  Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain. 

In other words, the embarrassment is not Canadian law.  Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country.

Full post as published by Michael Geist on April 30, 2010 (boomark / email).