Format shifting, low damages put Canada on IP watch list

US copyright industries have declared war on Canada, and they want the US government's help in fighting the battles. Today is the last day to file comments as part of the government's annual "Special 301" process, meant to call out the world's worst copyright countries, and the International Intellectual Property Alliance has just dropped a dramatic document on the US Trade Representative (PDF) that slams Canada and demands the country change many of its laws.

The Great White North is "fast gaining a reputation as a haven where technologically sophisticated international piracy organizations can operate with virtual impunity." The country is "virtually alone" in flouting "minimum world standards" for copyright and its rules are "hopelessly outdated." Finally, "no other country is farther behind the curve in combating copyright infringement in cyberspace."

No country is farther behind—not even Belarus, Peru, Ukraine, Vietnam, or Uzbekistan, all of which are suggested for the US government's annual "watch list." But Canada—along with China, Russia, and a few others—must be put on the highest-level "priority watch list," says the IIPA.

Who cares what the IIPA says? The US government, for one. The group is an umbrella organization that represents movies (MPAA), records (RIAA), music publishers (NMPA), video games (ESA), business software (BSA), and publishers (AAP). When it comes to each year's Special 301 list, the group largely gets what it wants.

This year, it wants the US to "press the Canadian government" on the issue of copyright, demanding a host of specific changes in Canadian law. The idea that libraries should be able to format-shift items before they become obsolete? CAN$500 caps on statutory damages for infringement committed for private purposes? The ability to circumvent DRM in order to make legal uses of the content? Ludicrous, all of them, and the IIPA demands action.

Problems, problems

Copyright holders do have reasons to be angry. Canada doesn't have an anticircumvention law for DRM, which has lead to booming markets in things like mod chips. But the big rightsholders resist any attempt to pass a consumer-friendly anticircumvention law that allows circumvention of DRM so long as the actual use of the content is legal; it would just cause them too much trouble.

Not cool, says IIPA. Canada must "define violations without imposing onerous intent requirements." In other words, only a blanket, DMCA-style ban on bypassing DRM is acceptable. (This is not the position of the international treaties that IIPA repeatedly slams Canada for not ratifying, however.)

$500 caps on statutory damages for "private purpose" infringement are also unacceptable; P2P users must be on the hook for far more money. Still, even if Canada won't change this law in general, IIPA demands that it be changed for their industries: "Their inapplicability to unauthorized uploading must be made definitive."

Canadians currently pay levies for things like blank CDs. What these "private copy" levies cover has been a subject of intense dispute, but IIPA demands that Canadian law be changed to make clear that "the [copying] exception applies only to copies of noninfringing recordings owned by the person who makes the copies."

This has long been the music industry's position: the private copy is really a charge for format-shifting of your own legal content (something that happens without pay in the US, though DRM is doing its best to stop the practice).

It is not at all clear that this is actually the legal position in Canada; back in 2004, judge Konrad von Finckenstein ruled that "the downloading of a song for a person's private use does not constitute infringement." (von Finkenstein is now Canada's top telecoms regulator; his ruling was changed on appeal, though the issue remains murky.)

What really chaps the collective hide of the copyright groups is BitTorrent trackers, and the IIPA document refers multiple times to the fact that "4 of the top 10 illicit BitTorrent sites in the world" are in Canada.

Canadian copyright lawyer Howard Knopf is furious (again) at the IIPA submission relating to Canada. He points out the many ways that Canadian copyright law is tougher than the US (more limited fair use, no right to time-shift, private copying levy, etc.).

But IIPA isn't interested in fair copyright or "balance"; the group demands that Canada patch up all of its "weak" points related to copyright, but Canada's much tougher rules should still remain in place. When one goes around the world doing this, the result is a continual strengthening of copyright law.

And, as so much of the IIPA complaint is based on countries like Canada "falling behind" international norms, the same logic can later be flipped around; once changes are made in foreign countries under US pressure, the US can itself be target for "falling behind" in all those areas where other countries are stricter. The obvious result, as seen in the sorry history of copyright term extensions (many retroactive), is that copyright law moves largely in one direction: stronger enforcement, tougher penalties, more rights.

The public is watching

This year, though, the public has gotten involved in the Special 301 process. Anyone can submit a comment, and more than 250 have been provided to date. A few are from companies and governments, but the huge majority are from individuals.

Most of these aren't so much about Special 301 but about ACTA. "In a country that is ostensibly democratic, ACTA is an affront to all that we stand for," says one. "The fact that these negotiations take place behind closed doors and we the people have no knowledge of what is contained is an insult to our basic foundational principles. I am unaware of any state secrets that could be contained in a treaty on copyright. Is there a good reason that we the people have not been told about the contents of this treaty?"