Meera Nair

A Road Less Traveled

In Posts on November 20, 2010 at 9:01 am

Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.

[from The Road Not Taken — Robert Frost (1874–1963)]

As Canada sits poised to alter the Copyright Act, Robert Frost’s famous lines seem more than appropriate. By Frost’s own admission this literary gem is “tricky” (fortunately, analysis is readily available.) But I will take blissful refuge in the realm of amateur-poetry-enthusiast, and just enjoy the poem. For even to an amateur, the ending is clear enough — a difference happened.

Following second reading of Bill C-32, debate/rhetoric is flowing on and around Parliament Hill. Artists express their wish for better financial remuneration via new media levies. Writers remain anxious over the inclusion of education as a consideration under fair dealing. And many Canadians continue to have concerns over the priority placed upon technological measures (i.e. digital locks). Undaunted, the Minister of Canadian Heritage James Moore insists that the bill strikes the right balance for the country as a whole. This week, writing for the Globe and Mail, Omar El Akkad and Susan Krashinsky indicate that Moore’s counterpart, Minister of Industry Tony Clement, will announce more details on November 22.

In terms of digital locks, the best case scenario is that Bill C-32 will be amended so that circumventing a digital lock will be considered infringement, only if the use is an infringing one. A poor compromise: to exercise a legitimate right of fair dealing, Canadians must first break into a work. It was possibly too much to hope that our government would choose to ignore the subject of locks, even though there is no need for government involvement in the first place. After all it is the prerogative of any individual to lock up his or her work if so desired. And if locking the material proves deleterious (i.e. it alienates a customer base or reduces circulation of a work), that same individual has the freedom to reconsider the use of locks. Government sanction of the locks is irrelevant to the matter of choice.

My fanciful world will no doubt be written off as naive: what about our international standing? According to Minister Moore, we must “get off the watch list.” Upon that listing of most-disfavoured nations, more formally known as the U.S. Special 301 Priority Watch List, Canada has permanent residency. It seems we cannot show our face in polite-international-society because of our delay in embracing the WIPO Internet Treaties of 1996.

But the truth is a happy contradiction. Nearly three years ago, Professor Ariel Katz of the University of Toronto Faculty of Law wrote about impending changes to Israeli copyright law. He described the similarities between Canada and Israel with respect to copyright:

Copyright lobbyists (as well as government officials) often argue that Canada must modernize its copyright law lest it stay behind on the technological and cultural front. A little Israeli perspective could help, especially when one recalls that Canada has overhauled its copyright act a few times over years, with significant reforms only a decade ago. If you had to name a developed country that unquestionably needed to modernize its copyright legislation, Israel was that country. The patchwork of statutes based on the UK 1911 act surely needed to be replaced with a modern statute. Nevertheless, despite its antiquated legislative framework, Israel has emerged as a technological and creative powerhouse. Being the world’s 100th smallest country, with less than 1/1000th of the world’s population, Israel has the world’s second highest per capita of new books; it produces more scientific papers per capita than any other nation by a large margin – 109 per 10,000 people. In proportion to its population, Israel has the largest number of startup companies in the world. In absolute terms, Israel has the largest number of startup companies than any other country in the world, except the U.S.

Katz noted a number of promising features in the proposed Israeli act including their progression from a system of fair dealing to a system of fair use. But what caught my eye was the matter of anti-circumvention. Although Canada and Israel are both signatories to the 1996 WIPO Internet Treaties which require members to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used by right holders to exercise their rights, neither Israel nor Canada have ratified the treaties. Yet as Katz observed:

Not ratifying the Treaties has not prevented Israel from complying with their requirement to enact a “making available” right. But interestingly, Israel’s brand new copyright act contains no anticircumvention provisions. The Israeli government has taken the view that at the moment, anticircumvention legislation does not seem to be urgently necessary and Israel would benefit from further studying the need and potential effects of such legislation.

So how did Israel fare? After their revised copyright law took effect in 2008, Israel continued to draw the ire of the United States. But Israel held its ground, and in early 2010 negotiated its way out of disgrace.

That negotiation is acknowledged in a 2010 USTR report on trade barriers. In excerpts provided by the Program on Information Justice and Intellectual Property (American University), the official word is:

The United States and Israel reached an understanding on February 18, 2010 that resolves several longstanding issues with Israel’s intellectual property rights … Although not part of the new understanding, Israel has also signaled a new willingness to make progress on other IPR issues of concern, such as meeting the core requirements of … the WIPO “Internet” Treaties. … The United States welcomes this step, and encourages Israel to proceed with full accession to, and implementation of, the WIPO Internet Treaties.

So much for official words; for actions, Israel is not yet a contracting party to the WIPO Internet Treaties. The question now is, where will Israel travel in the next three years?

Update May 4, 2011: Israel has been reinstated to the US Special 301 Priority Watch List. According to this year’s report from the Office of the United States Trade Representative, “While Israel has taken some steps towards implementing an Understanding on IPR it concluded with the United States in 2010, further action is needed.” Interestingly though, that Understanding was set upon Israel’s patent regime, not Israel’s lack of adoption of the WIPO Internet treaties.

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