[Politech] Michael Geist on trade agreements exporting copyright policy [ip]

From: Declan McCullagh (declan@private)
Date: Tue Oct 21 2003 - 17:04:34 PDT

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    Date: Mon, 20 Oct 2003 07:49:46 -0400
    To: Declan McCullagh <declan@private>
    From: Michael Geist <mgeist@private>
    Subject: Exporting Copyright - Trade Negotiations As Copyright Policy
    Of possible interest to Politech -- my regular Toronto Star Law Bytes 
    columns focuses on the growing importance of trade agreements to the 
    formulation of copyright policy.  The column notes that the U.S. has begun 
    to export its copyright policy through a push for stronger copyright 
    protections in its bi-lateral trade agreements.  Developing countries 
    readily agree as the inclusion of stronger copyright protections is seen as 
    a costless choice, while developed countries are willing to treat copyright 
    protection as little more than a bargaining chip as part of a broader 
    Column at
    <http://shorl.com/dyledevyprefra> [Toronto Star]
    Why we must stand on guard over copyright
    Michael Geist
    As a trading nation, Canadians have considerable experience with 
    negotiating trade agreements. From the Auto Pact in the 1960s, to the 
    U.S.-Canada Free Trade Agreement in the 1980s, we have relied on trade 
    deals to facilitate economic growth and to encourage exports of everything 
    from cars to forestry.
    In recent months, the world has been witness to a new priority in trade 
    discussions - copyright. Although traditionally treated by many countries 
    as a cultural issue not subject to negotiation, stronger copyright 
    protections are now often included at the insistence of the United States. 
    The move toward including copyright within trade negotiations deserves 
    close scrutiny as it has
    significant ramifications for national copyright policy.
    Although the General Agreement on Trade and Tariffs (GATT), the world's 
    most important trade agreement, referenced intellectual property rights, it 
    was not until recently with the emergence of the Agreement on Trade-Related 
    Aspects of Intellectual Property Rights (better known as the TRIPS 
    Agreement) in the 1990s that copyright and other intellectual property was 
    clearly placed on the trade docket.
    While the TRIPS Agreement includes important provisions governing the equal 
    application of intellectual property protections between countries, it does 
    not address the core concerns raised by the online environment such as 
    technical protection measures (technology that can be used to "lock" 
    copyright materials) and the role and responsibilities of Internet service 
    providers in grappling
    with online copyright infringement.
    Those issues are currently dealt with by the World Intellectual Property 
    Organization's 1996 Copyright Treaties. While several countries, most 
    prominently the U.S., have ratified the WIPO treaties, many others, 
    including Canada, have moved slowly to alter their copyright laws to 
    incorporate the provisions that may be needed to become "WIPO compliant".
    The reticence to adopt the WIPO standard is understandable. Many believe 
    the U.S. experience illustrates the dangers of adopting copyright 
    protections that may ultimately stifle innovation. The Digital Millennium 
    Copyright Act, the U.S. statute that implements the WIPO standard, has led 
    to scholars declining to publish their research out of fear of lawsuits, 
    hundreds of individual Internet
    users having their privacy rights ignored, and copyright law being 
    strangely applied to garage door openers and computer printers.
    In fact, the Canadian Supreme Court identified many of those same concerns 
    in a landmark case last year. Noting the importance of maintaining a fair 
    copyright balance, the Court stated that "the proper balance ... lies not 
    only in recognizing the creator's rights but in giving due weight to their 
    limited nature . . . excessive control by holders of copyrights and other 
    forms of intellectual property may unduly limit the ability of the public 
    domain to incorporate and embellish creative innovation in the long-term 
    interests of society as a whole, or create practical obstacles to proper 
    The delay in spreading the WIPO standard throughout the world has 
    frustrated the U.S., which as a major producer of movies, music, and books, 
    has long promoted stronger copyright protections. In response, it has begun 
    to demand inclusion of copyright protections akin to those found within the 
    WIPO treaties when negotiating bi-lateral free trade agreements.
    The strategy appears to be working as in recent months countries worldwide, 
    including Singapore, Australia, and the Dominican Republic, have all 
    indicated that they are receptive to including copyright within their trade 
    Developing countries such as the Dominican Republic view the inclusion of 
    stronger copyright protections as a costless choice. For those countries, 
    the harm that may result from excessive copyright controls pales in 
    comparison to more fundamental development concerns and they are therefore 
    willing to surrender copyright policy decisions in return for tangible 
    benefits in other
    trade areas.
    Developed countries such as Australia may recognize the importance of a 
    balanced copyright policy to both their cultural and economic policies, but 
    they are increasingly willing to treat intellectual property as little more 
    than a bargaining chip as part of broader negotiation. Since most trade 
    deals are judged by an analysis of the bottom-line, economic benefits that 
    result from the agreement, and since quantifying the negative impact of 
    excessive copyright controls is difficult, the policy implications of 
    including copyright within trade agreements is often dismissed as 
    Although Canada has already concluded a free trade agreement with the 
    United States, it is not spared from this latest trend. Current drafts of 
    the Free Trade Area of the Americas Agreement, which would broaden the 
    North American Free Trade Agreement to include countries such as Chile, 
    feature provisions that mandate stronger copyright protections. If those 
    provisions remain intact, copyright policy may be altered not through the 
    traditional policy making process, but rather via international trade 
    This week, a Canadian Heritage committee will commence hearings into 
    Canada's copyright policy agenda for the next five years. While the 
    committee will carefully consider dozens of submissions on every aspect of 
    potential copyright reform, lurking in the background may be the 
    realization that Canadian copyright concerns may ultimately amount to 
    little more than an issue to be sacrificed at
    the negotiation table for gains to fisheries, forestry, and farmers.
    Michael Geist is the Canada Research Chair in Internet and E-commerce Law 
    at the University of Ottawa and technology counsel with the law firm Osler 
    Hoskin & Harcourt LLP. He is on-line at www.michaelgeist.ca and 
    www.osler.com (mgeist @uottawa.ca).
    Professor Michael A. Geist
    Canada Research Chair in Internet and E-commerce Law
    University of Ottawa Law School, Common Law Section
    Technology Counsel, Osler, Hoskin & Harcourt LLP
    57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
    Tel: 613-562-5800, x3319     Fax: 613-562-5124
    mgeist@private              http://www.michaelgeist.ca
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