Canada again in the penalty box over poor IP laws and enforcement according to 2010 IIPA 301 report

February 19th, 2010 by Barry Sookman Leave a reply »

Yesterday, the International Intellectual Property Alliance released its 2010 SPECIAL 301 REPORT ON COPYRIGHT ENFORCEMENT AND PROTECTION. The report notes that “its statement in the 2007 Special 301 report – submitted three years ago – remains, disappointingly, true today: “Canada remains far behind virtually all its peers in the industrialized world with respect to its efforts to bring its copyright laws up to date with the realities of the global digital networked environment. Indeed, even most of the major developing countries have progressed further and faster than Canada in meeting this challenge.”

The IIPA call to modernize the Canadian Copyright Act is one of a growing list of calls by domestic organizations and foreign governments such as the EU and the US which have demanded that we amend our laws to create a positive legal environment to combat counterfeiting and piracy and to foster the creative industries.

The executive summary in the IIPA report describes the defects in Canadian copyright law as follows:

 More than thirteen years ago, Canada played an important and positive role in negotiation of the WIPO Internet Treaties. But today, Canada stands virtually alone among developed economies in the OECD (and far behind many developing countries) in failing to bring its laws into compliance with the global minimum world standards embodied in those Treaties. In 2008, its government finally tabled a bill (Bill C-61) that would do part of the job of meeting global standards; but no action was taken on it. In 2009, government pledges to table a new bill went unfulfilled. While significantly flawed, particularly with regard to the role of service providers in combating online piracy, Bill C-61 is likely to provide a starting point for future consideration of copyright reform. Canada should be encouraged to enact a new version of the bill, with major flaws corrected and necessary improvements in several areas, this year. Canada’s enforcement record also falls far short of what should be expected of our neighbor and largest trading partner, with ineffective border controls, insufficient enforcement resources, inadequate enforcement policies, and a seeming unwillingness to impose deterrent penalties on pirates. Canada’s parliamentary leadership and government, at the highest levels, have acknowledged many of these deficiencies, but have done very little to address them. As a consequence, the piracy picture in Canada is at least as bleak as it was a year ago, and it is fast gaining a reputation as a haven where technologically sophisticated international piracy organizations can operate with virtual impunity. The fact that Canada, home to 0.5% of the world’s population, hosts 4 of the top 10 illicit BitTorrent sites in the world, speaks eloquently for itself. To underscore U.S. insistence that Canada finally take action to address the serious piracy problem it has allowed to develop just across our border, and that it bring its outmoded laws up to contemporary international standards, IIPA recommends that Canada be maintained on the Priority Watch List in 2010.”

The IIPA set out the following actions for Canada to take to rectify the situation:

• Enact legislation bringing Canada into full compliance with the WIPO “Internet” Treaties (WIPO Copyright Treaty [WCT] and WIPO Performances and Phonograms Treaty [WPPT])

• Create strong legal incentives for Internet Service Providers (ISPs) to cooperate with copyright owners in combating online piracy

• Amend the Copyright Act to clarify the scope of the private copying exception for sound recordings

• Amend the Copyright Act to clarify liability for those who operate illicit file-sharing services, or whose actions are otherwise directed to facilitating, encouraging or contributing to widespread infringement

• Create criminal liability and penalties for counterfeiting offenses commensurate with what is provided in the Copyright Act

 • Make legislative, regulatory or administrative changes necessary to empower customs officials to make ex officio seizures of counterfeit and pirate product at the border without a court order.

• Complete the process of making proceeds of crime legislation applicable to proceeds from the distribution, sale and importation of pirated goods, and make the other legal and policy changes to enforcement called for by parliamentary committees.

• Increase resources devoted to anti-piracy enforcement both at the border and within Canada

• Direct the Royal Canadian Mounted Police (RCMP), Canadian Border Services Agency (CBSA), and Crown prosecutors to give high priority to intellectual property rights enforcement, including against retail piracy and imports of pirated products, and to seek deterrent penalties against those convicted of these crimes.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.

 

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