Meera Nair

An anniversary of sorts

In Posts on March 6, 2010 at 12:34 pm

This week I gave my little ones (a mercifully smaller group of 94 students) the story of “Where did the WIPO Internet treaties come from?” In our exploration of cultural industries I maintain that Canada is a wonderful historical laboratory. Canada was the first colony to peaceably withdraw from the British Empire but was still encumbered with Imperial trading rules. One in particular, Imperial copyright law, impeded the development of the Canadian book industry. The tension felt then is replicated in a newer form – old order multinational enterprises attempt to bring Canadian copyright law into line through the WIPO Internet treaties.

The Conference Board of Canada has released a much anticipated report, Intellectual Property in the 21st Century. The author, Ruth Corbin, writes:

In 1997, Canada signed on in principle to two treaties of the World Intellectual Property Organization (WIPO) that deal with copyright protection in a digital age. The decision as to whether or not Canada will ratify the WIPO Internet Treaties—by incorporating their provisions into Canadian law—is at or near the top of the hierarchy of decisions to be made in the context of copyright reform. … As it has for every other country that has already ratified, WIPO ratification leaves room for customization to made-in-Canada implementation tactics (p.86).

The report was broadly researched and probes the issue of intellectual property with refreshing candour:

Stronger rights are not necessarily more effective in achieving desirable economic outcomes. The pursuit of effective rights rather than stronger rights is more likely to achieve consensus among diverse groups of stakeholders (p. 81).

Yet for all the discussion about how to implement the WIPO treaties, less attention is paid to their own implementation. As David Vaver has explained a treaty cannot become law without some degree of consensus. Thirty nations must implement the requirements of the treaty within their own domestic laws. It is no secret that the United States was an early advocate of the treaties; American copyright law was amended in 1998. With respect to the WIPO Copyright Treaty, twenty-nine other countries were on board by December 6, 2001; hence the WIPO Copyright Treaty entered into force on March 6, 2002. The founding nations were:

Argentina, Belarus, Bulgaria, Burkina Faso, Chile, Columbia, Costa Rica, Croatia, Czech Republic, Ecuador, El Salvador, Gabon, Georgia, Hungary, Indonesia, Japan, Kyrgyzstan, Latvia, Lithuania, Mexico, Panama, Paraguay, Peru, Republic of Moldova, Romania, Saint Lucia, Slovakia, Slovenia, Ukraine, United States of America

Most of these nations would not be considered at the forefront of digital technology. Nor would they have fit the description of established knowledge economies. What can be said is that many were dependent on American trade, investment, and aid.

Likewise, a similar group exists with respect to the WIPO Performance and Phonograms Treaty, which entered into force on May 20, 2002:

Albania, Argentina, Belarus, Bulgaria, Burkina Faso, Chile, Columbia, Costa Rica, Croatia, Czech Republic, Ecuador, El Salvador, Gabon, Georgia, Honduras, Hungary, Latvia, Lithuania, Mali, Mexico, Panama, Paraguay, Republic of Moldova, Romania, Saint Lucia, Senegal, Slovakia, Slovenia, Ukraine, United States of America

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