Dr. Ficsor: An invitation to Canada to join the international community by ratifying the WIPO Internet Treaties

December 21st, 2009 by Dr. Mihály Ficsor Leave a reply »

Geneva, December 21, 2009: An invitation – presented to Canada to join the international community by ratifying and duly implementing the WIPO “Internet Treaties” – that should not be turn down

On December 14, the international copyright community had a big celebration in Geneva at the headquarters of the World Intellectual Property Organizations (WIPO). The ambassadors of 16 Member States of the European Union and the European Union itself deposited their instruments of ratification of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). By this, since 10 of new Member States joining the EU in 2004 and 2007 and Belgium had previously deposited their instruments of ratification, all the 27 Member States of the EU and the EU itself will be Contracting Parties to the two so-called “Internet Treaties” within three months bringing the number of Contracting Parties to 88 (WCT) and 86 (WPPT), respectively. This long waited development has confirmed the full validity and ability of the Treaties to duly regulate the protection of copyright and related rights in the digital network environment, and has also made it clear that these instruments have become inevitable standards of this branch of intellectual property.

Since, as the then Assistant Director GeneraI of WIPO, I was the main responsible in the Organization for the preparatory work of the two Treaties, for the 1996 Diplomatic Conference adopting them, and for the first efforts to achieve their adequate implementation, it was a particularly great pleasure to me to participate in the last week celebration of this success of the Treaties.

Nevertheless, the deposit ceremony has not been for me just a moment of cloudless happiness, since it meant that I should fill now the promise made to my publisher, the Oxford University Press, to prepare a new edition of my book on the two Treaties: “The Law of Copyright and the Internet.”  I tried to delay undertaking the quite heavy task of rewriting the now 7-year-old 800-page book which is still quite well selling, and my last defense was that we should wait until the deposit of instruments of ratification of all EU Member States. Now it is over.

This freshly renewed obligation of mine to pay full attention to the developments around the WIPO Treaties has made me to look around on the Internet, inter alia, by typing “EU ratification WIPO Treaties” in the search site.

I have found a reference to the statement made by Francis Gurry, Director General of WIPO, on the occasion of the EU ratification who “noting that the EU plays a leading role in promoting use of the Internet and in developing on-line content, …. said its ratification of the treaties will positively influence the development of creativity within the digital environment in Europe and beyond,” as well as the comments of EU Commissioner Charlie McCreevy: “Today is an important day for the European Union and its Member States and WIPO. We, as a group have shown our attachment to the international system of protection of copyright and related rights. These two treaties brought protection up to speed with modern technologies. As the technological evolution accelerates, protecting creators and creative industries is more urgent than ever.”

These declarations correctly reflect  the outstanding importance of the EU’s full ratification of the two Treaties which have been duly characterized by the WIPO press release issued on this occasion as follows: “The ‘Internet Treaties’ laid the ground for a balanced system of protection in the new technological environment in areas such as the interactive transmission of copyright content, limitations to copyright and the promotion of technologies that facilitate the distribution and use of creative content.”

However, by browsing through the search “matches,” I have also found something that made me exclaim by surprise: “WHHHHAT?”  In the blog of what seems to be operated by a Canadian professor (his name is Michael Geist), the following short report appeared:  “The European Union has formally ratified the WIPO Internet treaties.  While critics of Canadian copyright law will no doubt use the move to argue that Canada has fallen behind on copyright reform, it is worth noting that: (1) Canada has twice introduced legislation designed to do the same; (2) the European national implementations show a wide range of exceptions, opening the door to a ‘made-in-Canada’ WIPO approach; (3) for all the claims that Canada is years behind, the EU ratification arrived today.”

It is hardly understandable on the basis of what kind of logic one may suggest that Canada has not fallen behind just because draft legislation has been designed twice, since neither of the two drafts has been adopted. One single piece of adequately drafted and adopted legislation would be sufficient to implement the Treaties; not only two but even a dozen non-adopted draft laws cannot replace it.

Another statement in the blog implies that it is not well founded to claim that Canada has fallen behind since “the EU ratification arrived today.” Even if one accepted the allegation according to which the EU and its Member States have only completed the implementation of the two “Internet Treaties” with the deposit of the 16+1 last instruments of ratification, it would not change the fact that now all the important trading partners of Canada’s from the US to Japan, from Mexico to the EU and its 27 Member States, from South Korea to Australia, along with a lot of other countries, such as China and Russia, are party to the Treaties – and Canada is not, and even it does not have implementing legislation on the basis of which it could ratify them. However, it is far (in light-years distance) from being true that the EU implementation of the two Treaties took place just around the time when on December 14, 2009, at 6 a.m. the 17 ambassadors handed over the instruments to Director General Gurry. The EU Information Society (Copyright) Directive taking care of the implementation of the Treaties was adopted in 2001 and the great majority of the “old” and “new” Member States completed their legislative implementation and internal ratification process quite quickly after that. The only reason for which they did not deposit their instruments of ratification was a decision announced on the last day of the 1996 Diplomatic Conference according to which the EU and its Member States would deposit their instruments together on the same day.  It has become possible this year when some months ago the last two Member States – Portugal and Malta – have also completed their ratification process and joined the others many of which were waiting for them for a number of years.

Only those may allege that Canada has not fallen quite importantly behind the EU and its Member States (as well as its other important trading parties) regarding the implementation of the WIPO Treaties who are ignorant about these facts (which could hardly be presumed about somebody who seems to be a professor also dealing with copyright) or who intend to hide or drastically misinterpret them for some purpose.

The purpose has become evident when I looked around in the website in trying to find out what the weird statement might mean according to which “the European national implementations show a wide range of exceptions, opening the door to a ‘made-in-Canada’ WIPO approach.

The implementation of the two Treaties in the EU Information Society (Copyright) Directive took place on the basis of a “made-in-EU” approach, the D.M.C.A in the US was adopted in 1998 as a result of a “made-in-the US” approach, the Japanese laws to implement the two Treaties were created following a “made-in-Japan” approach. Thus, it is just normal that, if Canada finally implements the Treaties, it will do so by applying a “made-in-Canada” approach.  Any “made-in” approach is acceptable that is suitable for due implementation of all the treaty obligations.

However, the professor’s blog seems to suggest a kind of “made-in-Canada” way of implementation that would consist of not implementing certain obligations under the Treaties. This turns out when one visits another part of the website which discusses the EU proposal for the IP chapter of a currently negotiated Comprehensive Economic and Trade Agreement to be concluded with Canada.  The professor states that the proposal is “incredibly troubling” and that “when combined with ACTA, the two agreements would render Canadian copyright law virtually unrecognizable as Canada would be required to undertake a significant rewrite of its law.”  He refers, inter alia, to the following elements of the EU proposal – relevant from the viewpoint of the implementation of the two Treaties – that are not just troubling but incredibly troubling:

  • WIPO ratification. The EU is demanding that Canada respect the rights and obligations under the WIPO Internet treaties.  The EU only formally ratified those treaties this week.
  • Anti-circumvention provisions. The EU is demanding that Canada implement anti-circumvention provisions that include a ban on the distribution of circumvention devices.  There is no such requirement in the WIPO Internet treaties.
  • ISP Liability provisions. The EU is demanding statutory provisions on ISP liability where they act as mere conduits, cache content, or host content.  ISPs would qualify for a statutory safe harbour in appropriate circumstances.  There is no three-strikes and you’re out language (which presumably originates with the U.S.)…
  • Making available or distribution rights. The EU is demanding that Canada implement a distribution or making available right to copyright owners.

Let us take a look at these incredibly troubling demands in the EU proposal. Probably, the first one is not among them since any lawyer in a sober state of mind might hardly suggest that if a country accedes to a treaty, its special “made-in” approach of implementation could go so far as to not respecting the rights and obligations under the Treaty. The last demand is of the same nature. The two Treaties obligate Contracting Parties to grant exclusive rights of making available and distribution. Thus, it could hardly be characterized as incredibly troubling to demand that, if Canada at last ratifies the two Treaties, it should not adopt a “made-in-Canada” legislation by not providing for these rights. Then would the inclusion of EU-style statutory provisions on ISP liability in respect of mere conduit, caching and hosting services be incredibly troubling? Hardly; it could not be alleged reasonably that those rules trying to guarantee just a minimum minimorum level of cooperation of such intermediaries – who usually gain a lot as a result of illegal transmissions of infringing materials through their systems – are not justified.

Thus, what is presumably regarded by the professor an incredibly troubling demand is that Canada should implement anti-circumvention provisions by also prohibiting circumvention devices. This appears to be the case since he adds that “[t]here is no such requirement in the WIPO Internet Treaties.”  It seems to follow from this that a “made-in-Canada” implementation of the Treaties preferred by the professor would not be supposed to include such prohibition (although, in the website, there may be found traces of a previous strange campaign that the professor has been waged also against the application and protection of digital rights management (DRM) systems in general).

In respect of anti-circumventing provisions, the EU demands something that is provided in Article 6 of the Information Society (Copyright) Directive and which is duly implemented in the legislation of the Member States. In view of this, there is an obvious self-contradiction in the position of our professor in respect of how he considers the EU’s way of implementing the two Treaties from the viewpoint of a “made-in-Canada” approach he would prefer. There is, since as quoted above, he also states with pleasure that the European national implementations open the door to a “made-in-Canada” WIPO approach.

The allegation that the two Treaties do not require protection against the manufacture and distribution of unauthorized circumvention devices is completely groundless. The negotiation history of the Treaties clearly indicates that, although their anti-circumvention provisions finally used a more general language, they had been based on proposals extending to the prohibition of such activities. However, what is even more important is that the obligation to provide for such prohibition also follows from the text of the relevant provisions themselves of the Treaties. Under those provisions, Contracting Parties are obligated “to provide adequate legal protection and effective legal remedies” against the circumvention of technological protection measures. It could hardly be suggested seriously and without a big amount of cynicism that a Contracting Party is able to provide adequate protection and effective remedies if it only prohibits the very acts of circumvention and leave technological protection measures to their gloomy fate by that.  Such acts are normally performed in private homes or offices where, due to privacy considerations, it would be extremely difficult – or quasi impossible – to apply adequate protection.  At the same time, it is possible to build adequate defense line if the manufacturing and distribution of unauthorized circumvention devices and services are also prohibited. Since this is possible and since this is needed for an adequate anti-circumvention protection, it follows from the treaty obligations that this should be applied by the Contracting Parties. The EU regulation is based on this recognition and the regulation is duly applied by the Member States.  The EU has not chosen an imaginary “WIPO-lite” implementation to fulfill certain obligations and neglect others, since there is no such way of implementing the Treaties; it would be equal not implementing them by adopting a ridiculous theory that for some mysterious reasons the basic principle serving as a basis of any serious agreement – pacta sunt servanda – does not apply to them.

In view of this, it is not clear to what the professor might refer when he expresses his pleasure that “the European national implementations show a wide range of exceptions, opening the door to a ‘made-in-Canada’ WIPO approach.” What exceptions to what does he have in mind, what doors could they open, and for what kind of special approach they may serve as a basis? There is no reply to these questions in the blog. Article 5(1) to (5) of the Information Society provide for exhaustively listed exceptions to and limitations of the rights of reproduction, distribution and making available to the public, subject to the three-step test in accordance with the relevant provisions of the WIPO Treaties (as well as the Berne Convention and the TRIPS Agreement). The Member States apply the majority of them truly with certain national variants. If the “made-in-Canada” way of implementing the Treaties consisted in this sort of provisions on exceptions and limitations in accordance with the international norms and subject to the “three-step test,” obviously no conflict would emerge with the Treaties. The EU’s “incredibly troubling” demands hardly form any obstacle in this respect.

The Information Society (Copyright) Directive also includes well-balanced provisions guaranteeing the applicability of certain exceptions that are important from the viewpoint of public interests. The Member States are obligated to introduce intervention mechanisms for those cases where the owners of rights applying technological protection measures do not provide access to the beneficiaries of such exceptions on a voluntary basis. The majority of Member States have provided for some kind of mediation-arbitration systems as intervention mechanisms. This is the case also in my country, Hungary, where the Copyright Experts Council has been appointed to act as a mediation-arbitration body. Since 2000, I have been the President of the Council which has had the task to act as such a body since May 1st, 2004, the date of Hungary’s accession to the EU. I know the number of cases brought in front of the Council in this connection until today. It is exactly zero.  The problems of access by the beneficiaries of the exceptions involved have been prevented on the basis of framework agreements between owners of rights and the beneficiaries of exceptions, and the few potential disputes have also been solved peacefully without the need for formal mediation-arbitration. The experience in our country is similar to what has been found in other countries concerned; it indicates that, if we have heard some noise, it was not because the copyright sky has fallen down under the weight of DRM systems, but rather because the credibility of the doomsday prophesies about blocking access to works by DRM in an unjustified way have collapsed spectacularly.

The allegations that may be found in the professor’s blog about the obligations under two WIPO Treaties and about the way the EU Member States have implemented them are groundless and misleading.  However, on the basis of what I have seen by reading – masochistically – in the comments added by his devoted followers, this appears to be of no importance for them. What they seem to need is no matter what kind of fuel for their anti-copyright “revolutionary” zeal and blind hatred against what they characterize as “greedy” copyright industries (not seeing – or pretending that they do not see – the authors, performers and other creative and technical contributors whose rights are equally denied if the industries in and for which they work cannot duly exploit copyright). For them, everybody is stupid, traitor and/or the agent of the “big industry” enemy who does not agree with them and does not share the view that free access to works is the only acceptable solution on the Internet. Nobody is more impatient and nobody is more ready to suppress any contrary speech than these “liberal” (alleged) “free-speech” champions.  One may become very popular if he serves and organize these kinds of “speak out” campaigns.

I am sure that the policy makers of Canada do not allow being misled and frightened by the noisy group of these “free-access” “revolutionaries” (I hope so since, here in the former “socialist” countries of Central and Eastern Europe, we have had quite bad experience of certain “free access”  “revolutionary” collectivist systems constrained on us for several decades). I am sure that they will not let Canada to become an isolated hostage and victim of demagogue campaigns organized in the hatred-driven style of Maoist Guards as during that other brilliant “cultural revolution.” Thus, I hope that Canada will now accept the kind invitation presented on December 14 to join its main trading partners and the mainstream of the international community by ratifying and duly implementing the WIPO Treaties that are indispensable instruments to guarantee adequate and well-balanced copyright protection in the digital on-line environment.

Dr. Mihály Ficsor,
President  of the Hungarian Copyright Experts Council,
former Assistant Director General of WIPO

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