Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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Canada and the 301 lists

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.


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