The Conference Board of Canada has released a series of reports concerning Canada's state of intellectual property protection. According to this theoretically non-partisan group, "Canada's failure to strengthen intellectual property rights in the face of digital technology has given it an unwelcome reputation as the file-swapping capital of the world."

Michael Geist posted an assessment of the reports, drawing attention to the questionable methodology employed. The conclusions were drawn through a selective reading of data, with some data prepared by copyright industry associations. One of the reports, National Innovation Performance and Intellectual Property Rights, states that Canada ranks 19th worldwide. As Prof. Geist writes, "...the report fails to mention that Canada was actually tied with four other countries ranked 15th to 19th including the United States, which in the same paragraph is heralded as a leader in innovation whereas Canada is described a laggard."

Prof. Geist takes no prisoners and ably shows that the Digital Economy report borrowed heavily from the work of the International Intellectual Property Alliance without paying much attention to the courtesy of proper citation. In their rebuttal the Conference Board attempts to distance themselves from the charge of plagiarism. Moreover, they state "This report was produced as contract research. The Conference Board does not disclose the terms of its contracts without permission of the client." An ironic remark, given that Ontario taxpayers provided part of the funding for this venture.

My comments to the debate...

Professors Fischer and Hughes each identify the rationale for the system of copyright as its capacity to encourage creative effort, as well as promote respect for creative people. Both are laudable goals, but a dispassionate analysis should note the oddity of the situation we find ourselves in - copyright laws focus more upon the distribution of creative works, and less upon the creation of those works.

Guest speaker John Kennedy made perhaps the most trenchant observation, "Copyright influences behaviour." This has manifested in two equally undesirable ways. The speakers and various individuals have spoken of the challenges caused by those who engage in unauthorized distribution of copyrighted content. At the other end of the spectrum is the self-censoring of creative effort that occurs when individuals believe that copyright is a grant of absolute property.

Copyright is not, and has never been, a measure of complete control. Since its emergence into Western law, it has remained a limited right; limited not only in time, but also in its reach. Eighteenth century English courts recognized fair dealing (rooted in the doctrine of fair abridgement); likewise, early American courts recognized the practice of fair use to varying degrees. While there are differences between the two exceptions, each allows for the unauthorized reproduction of copyrighted material for certain uses (i.e. private study, research, criticism, review and news reporting). Conditions apply to any exercise of fair dealing or fair use; neither exception is an invitation to copy without restriction.

Fair use has made a brief appearance in this debate. Professor Fischer describes the doctrine as helpful, but ambiguous and unpredictable. Professor Hughes states, "... to historians, novelists, archivists and documentary filmmakers... the fair use doctrine provides substantial protection against infringement claims." Fair use and fair dealing apply to all individuals engaged in creative effort. Yet, individuals who exercise these rights risk a charge of infringement, a litigation few people can afford. However, financial expense is not the worst of the difficulty; the real problem is that many people do not understand the limits of copyright and shape their behaviour accordingly. They are unaware that, in lay-man's terms, a good-faith productive use of copyrighted material is very likely to be legitimate. Granted, my position is shaped by a very progressive Canadian Supreme Court.

Guest speaker Ms. Dale Cendali writes, "Yet despite the overwhelming evidence of the success of the current incentive system, there have been calls to revise dramatically copyright law, including drastically shortening the current copyright term and greatly expanding fair use." From this, it appears that she finds expanding fair use a threat to the success of copyright, a threat to the promotion of creativity. If we believe that copyright is all about creativity, both encouraging it and respecting creators, then it would be prudent to pay more attention to the only measure within the law that directly addresses creativity.

Read the whole debate here

This past week the Office of the United States Trade Representative released its annual 301 report, and once again named Canada for failing to develop more stringent intellectual property laws. This time, however, Canada has been placed on the Priority Watch 301 list along with China, Russia, Algeria, Argentina, Chile, India, Indonesia, Israel, Pakistan, Thailand, and Venezuela.

Eric H. Smith of the International Intellectual Property Alliance (IIPA) seems particularly pleased that Canada has been elevated in its disgrace. According to Smith, "Canada remains woefully behind the rest of the developed world (and many countries in the developing world as well) in adopting critical legislation that will facilitate the development of a healthy online marketplace for copyright materials."

The USTR Report states, "The United States continues to have serious concerns with Canada's failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties."

At the heart of this grievance lies Canada's unwillingness to adopt the measures implemented by the United States in 1998, namely the Digital Millennium Copyright Act (DMCA). That the DMCA exceeds the requirements of the WIPO treaties is left unsaid, along with the inconvenient detail that Canadian law continues to meet its international obligations.

As is always the case, there are many Canadians quite competent to dispute the allegations of the USTR: for example, Howard Knopf and Michael Geist. Yet my favourite rebuttal came two years ago, from Bruce Lehman, chief architect of the DMCA. Speaking at a conference at McGill University in March 2007, he said, "Canada has the benefit of the soon-to-be decade of experience of the U.S. ... in some areas our policies have not worked out too well... Attempts at copyright control have not been successful; at least with regards to music."

Lehman placed the development of the DMCA as, in part, a consequence of President Bill Clinton's campaign promise to capture the economic benefits of the Information Superhighway. The phenomenon that is the Internet has changed considerably over the last decade, and business models previously unimagined have taken root. Current Canadian policy makers would be showing a lack of judgement if they mindlessly patterned Canadian law on the DMCA.