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Slouching Toward WIPO
Ten years ago, delegates at a Diplomatic Conference at the World Intellectual Property Organization (WIPO) in Geneva concluded two treaties to modernize member nations' intellectual property laws to accommodate the realities of digital technology. The WIPO Copyright Treaty (WCT, passed Dec. 20, 1996, and effective March 6, 2002), and the WIPO Performers' and Phonograms Treaty (WPPT, passed Dec. 20, 1996, and in force May 2, 2002), collectively known as the WIPO Internet Treaties, provide for the expansion of existing rights and the creation of new rights in subject matter protected by copyright. Particularly, these treaties call on signatories to implement three provisions in their domestic copyright laws:
- Remedies for the circumvention of effective technological measures that are used in connection with their rights under copyright and that restrict unauthorized acts (WCT, Article 11, and WPPT, Article 18);
- Remedies for tampering with rights-management information (WCT, Article 12, and WPPT, Article 19); and
- Adoption of an exclusive 'making-available' right ' the exclusive right of the rights holder to participate in 'on-demand' services (WCT, Article 8, and WPPT, Articles 10 and 14).
Canada, along with most developed nations, signed the WIPO Internet Treaties. In the years since signing, many nations have amended their domestic laws to implement their obligations under these treaties:
- The United States passed the Digital Millennium Copyright Act (DMCA) in 1998. The DMCA includes strong anti-circumvention laws that one might fairly characterize as setting the high-water mark for such laws globally.
- The European Union passed its Copyright Directive in 2001, obliging EU members to have implemented domestic legislation consistent with the WIPO Treaties by 2003, although it's worth noting that few EU members have met the Directive's deadline for implementation.
- Australia has also addressed the WIPO Internet Treaties' digital agenda in that nation's Copyright Amendment (Digital Agenda) Act 2000 No. 110, 2000, which amended the Copyright Act 1968; the Australian implementation, notably, has been altered by elements of the Australia-United States Free Trade Agreement, which concluded in January 2005.
Rather than rushing forward to implement a Canadian version of the DMCA, Canada, under the guidance of successive governments led by the Liberal Party of Canada, chose to consult widely with stakeholders over the direction it should take in legislating. The result was a lengthy consultation process culminating in a bill ' Bill C-60, An Act to Amend the Copyright Act, 1st Session of the 38th Parliament, 2005 ' that implemented Canada's obligations under the WIPO Treaties, but departed from the DMCA view of those treaties in several key respects, including the scope and ambit of anti-circumvention laws. While lobbyists for rights-holder organizations ' and the U.S. Trade Representative ' denounced Bill C-60 as non-compliant with the WIPO Internet Treaties, none took such claims seriously.
(For more on these matters, see, 'A National Dialogue on the Need to Safeguard and Promote Products of the Mind,' speech by Graham Henderson, president, Canadian Recording Industry Association, to the National Press Club, Sept. 29, 2005, online at www.cria.ca/news/290905_n.php; 'Canada ' a Land of Lost Opportunity?' speech by John Kennedy, chairman and chief executive of International Federation of the Phonographic Industry, at Canada Music Week, March 2, 2006, and online at www.ifpi.org/site-content/press/inthemedia18.html; and U.S. Trade Represen-tative Special Report, '2005 Special 301 Report,' online at www.ustr.gov/assets/Document_Library/Reports_Publications/2005/2005_Special_301/asset_upload_file195_7636.pdf.)
Bill C-60 complied with the treaties, but did not venture far beyond the treaties' literal requirements. Bill C-60 was perhaps better characterized as a conservative implementation of WIPO, rather than non-compliant or even minimally compliant. The issue was not put to the test. With the fall of Canada's Liberal government in late 2005, Bill C-60 died on the order table.
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