Canadian Copyright is Coming to the USA

There seems to be some real interest in the recent developments in Canadian copyright law south of the border. Next week, two separate events will take place in Washington DC.

On Sept. 12, Howard Knopf and I will talk about the recent developments at American University Law School. The title of our talk is: “Canadian Copyright: Calm, Cool, and Clever”. The event is organized by the Program on Informational Justice and Intellectual Property at American University Law School. Martin Senftleben from VU University of Amsterdam will offer additional analysis of fair dealing from a European perspective. More details here.

The following day, on Sept. 13, Casey Chisick of Cassels Brock & Blackwell LLP will give a talk titled “Copyright Crazy: Canadian Copyright Law in Transition”. That event is hosted by the Copyright Society of the USA, and will take place at George Washington University. More details here.

The time and place of both events may not be totally coincidental. The 14th Round of Trans Pacific Partnership (TPP) negotiations takes place nearby in Leesburg, Virginia, between September 6-15, 2012. Exceptions and limitations to copyright is one of the controversial items to be negotiated, and Canada’s recent developments might be of interest.

I don’t know exactly what Casey Chisick’s is going to say, but given the opposing positions that we took in in the recent Alberta (Education) v. Access Copyright Supreme Court case (Howard and I wrote an Intervener Factum on behalf of CILP, and Mr. Chisick acted for CMRRA in that case and in three other copyright cases decided by the Supreme Court) I assume that his take on the recent Canadian developments is going to be different than that of Howard’s and mine. However, there are some signs that branding the recent developments in Canadian copyright law as “crazy” may reflect more than a difference in opinion (and more than just hyper hyperbole) but indeed is part of a broader strategy to discredit Canada’s recent approach to copyright and lay the ground for a new round of pressure by the USTR and the industry interests that it promotes.

The “Copyright Crazy” event will be moderated by Steve Metalitz, of Mitchell Silberberg & Knupp LLP, who also serves as counsel to the International Intellectual Property Alliance (IIPA), the key force behind the ridiculous inclusion of Canada on the Special 301 Priority Watch List.

In its latest submission to the USTR, the IIPA urged the USTR to maintain Canada’s inclusion on the Priority Watch List (which it did). With respect to copyright reform, the IIPA had four general demands from Canada. It demanded that Canada:

1. Enact legislation bringing Canada into full compliance with the WIPO Internet treaties (WIPO Copyright Treaty [WCT] and WIPO Performances and Phonograms Treaty [WPPT]).
2. Establish clear liability and effective remedies against those who operate illicit file sharing services, or whose actions are otherwise directed to promoting infringement.
3. Ensure that any new exceptions or limitations to copyright protection conform to international standards, and avoid the risk of unintended consequences due to overly broad construction.
4. Enact strong legal incentives for Internet Service Providers (ISPs) to cooperate with copyright owners in combating online piracy, including by limiting the scope of liability safe harbors in accordance with international best practices.

Bill C-11 brought Canada into full compliance with the WIPO treaties (point #1), and added the “enabler” provisions (point #2). The Bill, however, didn’t adhere to the IIPA’s wishlist with respect to point #4 (e.g., it adopted a notice-and-notice regime rather than notice-and-take-down), and did not subscribe to the IIPA’s views with respect to fair dealing (point #3).

Indeed, point #3 was not urged only on Parliament. In fact, the same arguments were made by Mr. Chisick’s clients before the Supreme Court, and just like Parliament, the Court didn’t buy-in.

As we wrote in our factum, the notion that Canada’s fair dealing (or the US fair use for that matter) is out of step with international standard is a baseless red-herring. Nevertheless, this argument is part of the IIPA and its members’ worldwide strategy. In this regard, the passage of Bill C-11 and the failed attempt to roll back fair dealing to its pre-CCH days, are a major setback because they make the argument that international standards mandate narrow and strict exceptions to copyright less credible. Moreover, if this article from the Economist is a sign, the IIPA must be worried that other countries might follow Canada’s example.

Therefore, it can be expected that the IIPA and its members will renew and revamp the pressure on Canada. Branding its recent development as “crazy” may be part of this strategy.