The ESA Looks To Use ACTA To Circumvent Copyright Law In Canada

It appears that the American arm of the Entertainment Software Association (ESA) is keenly interested in ‘circumventing’ Canada’s domestic copyright regime, reformed or otherwise, by employing the controversial Anti-Counterfeiting Trade Agreement (ACTA). On September 23, 2009 a meeting of the U.S./EU IPR Enforcement Working Group took place in Washington DC, attended by the old guard: private sector industry reps and lobby groups. The listed objectives were as follows:

  • To promote enforcement
  • To fight piracy and counterfeits
  • To promote public & private partnerships on piracy and counterfeits

Both the U.S. and EU governments and industry representatives shared concerns on IPR enforcement in Canada. ESA representatives went on to suggest that ACTA be used as a means of “raising the bar” in Canada to force Canadian government to respect TPMs and uphold its IPR commitments. U.S. representatives responded by stating that they expect all parties involved in ACTA to uphold the provisions put forth in the agreement, and will not accommodate the “lowest common denominator.”

It now appears that even if Canada modernizes its copyright regime to meet its international obligations, ACTA could be used to ‘circumvent’ domestic copyright laws and tip the balance between consumer and creator rights in favour of distributors, lobby groups and litigious-happy lawyers. While the Canadian government has been open with their public consultations on copyright reform, Canadians are left wondering how and why ACTA, an agreement which threatens to supersede the domestic Copyright Act, is so secretive and non-transparent.

Consultations On Copyright Merely A “Tactic To Confuse”

As if the pressure from US based lobby groups and trade organizations like the USTR and the MPAA wasn’t threatening enough to Canadian sovereignty, it now appears that the European Union has decided to throw its weight around in an effort to influence Canadian policy. Canada and the EU are in the midst of negotiating the Comprehensive Economic and Trade Agreement (CETA). The virtues of such Agreement are being bestowed by Industry Canada as:

Liberalizing trade in goods and services could bring a potential 20% boost to bilateral trade and GDP gains of up to $12 billion (or €8.2 billion) for Canada by 2014. A CETA with the EU could deliver commercial benefits across many goods sectors, including aerospace, chemicals, plastics, wood products, aluminum, fish and seafood, light vehicles and automotive parts, and agriculture products such as wheat, beef, and pork; it could also deliver benefits across services sectors such as transportation, engineering and computer services. The study also shows potential for enhancing the relationship in areas such as investment, labour mobility, regulatory cooperation, environment, and science and technology.

However, as the omnipresent Michael Geist and The Wire explain, the devil is in the details. While this new trade agreement may indeed be beneficial to boosting bilateral trade and providing all the economic advantages that come with it, it also provides a conduit to shaping and influencing Canada’s domestic IP polices. A recently leaked document outlines plans for increased political pressure against Canada and dismisses the 2009 consultations on copyright as a “tactic to confuse”.

Now a second document has leaked, though it is not currently available online. The Wire Report reports that an EU document dated November 16, 2009, features candid comments about Canada and the EU strategy. The document, called a “Barrier Hymn Sheet” leaves little doubt about the EU’s objective:

“Put pressure on Canada so that they take IPR issues seriously and remedy the many shortcomings of their IPR protection and enforcement regime…”

The document states that the trade negotiations are a “unique opportunity [for Canada] to upgrade its IPR regime despite local anti-IPR lobbying.” It includes an assessment of recent copyright reform efforts, noting that two bills have died due to “political instability.” The document adds that the copyright reform process was revived in 2009 with the national copyright consultation, but notes dismissively it may have been a “tactic to confuse.”

Canadian Government Commits To Tougher Copyright Laws

Yes Canada, it’s like déjà vu all over again. This Government has once again committed themselves to tackling this pesky copyright thingy. In today’s Speech from the Throne it took Governor General Michaëlle Jean just 14.5 minutes out of 60 some-odd minutes to mention copyright and the direction this Government will take to update Canada’s Copyright Act:

To fuel the ingenuity of Canada’s best and brightest and bring innovative products to market, our Government will build on the unprecedented investments in Canada’s Economic Action Plan by bolstering its Science and Technology Strategy. It will launch a digital economy strategy to drive the adoption of new technology across the economy. To encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada’s prosperity, our Government will also strengthen laws governing intellectual property and copyright.

In terms of copyright and its implications, this was essentially a carbon copy of the Speech from the Throne delivered by this same Government on Nov. 18, 2009.

With approximately 100 sitting days scheduled for the House of Commons to be in session before the summer recess, one gets the inkling that Canadians are going to see an Act to Amend the Copyright Act hit the Order Paper and most likely First Reading before the MP’s retreat to the summer BBQ circuit.

When it comes to copyright reform in Canada battle lines have been clearly drawn, on the one side we have the ‘blame Canada’ corporate lobbyists, shills and lawyers versus those of sound mind, i.e. consumers, esteemed members of academia, lawyers with sound reasoning and tech industry coalitions. Just who truly has the ear of Government will remain to be seen in the next 100 days and beyond. However, if Bill C-60 and Bill C-61 are any indications consumers are going to be in for a rough ride as distributors will continue to push for locked down content and legislation to protect their imposed locks.

Even if this government comes to its senses and crafts a truly balanced copyright bill, Canada, and the rest of the developed world for that matter, have the Anti-Counterfeiting Trade Agreement (ACTA) looming over their heads. This secretly negotiated trade agreement represents a particularly vile form of policy laundering that if enacted, threatens to override Canada’s domestic copyright policy, reformed or otherwise. ACTA seeks to provide an unprecedented level of control to ISP’s, pseudo-law enforcement and content distributors to dictate how, when and where consumers can access content and associated products in the high tech economy. Yes, folks be afraid, be very afraid.