Meera Nair

A better list

In Posts on May 6, 2011 at 7:28 am

Earlier this week Michael Geist reported that Canada continues its residency on the Special 301 Priority Watch List. This annual report issued by the Office of the United States Trade Representative (USTR) is an assessment of trading partners whose approach to intellectual property rights do not mirror those of vested American interests.**

Mercifully, a better list recently appeared from Consumers International. This global alliance of 220 consumer groups takes as its lodestar “to put the rights of consumers at the heart of decision making.” Founded in 1960, Consumers International expands its ambit to meet the changing face of consumer industries. The IP Watchlist, “assesses the fairness of the world’s intellectual property laws and enforcement practices from an important yet under-represented perspective: that of the ordinary consumer.” The first IP Watchlist was published in 2009. All yearly reports, and the 2011 individual surveys of participating countries, are freely available from the Access To Knowledge network of Consumers International.

Canada was first assessed in 2010 and received a C. The 2011 report shows a modest improvement; Canada is now rated as B-. Moreover, the report positioned Canada at the forefront of enhancing consumer creativity through Bill C-32:

The explosion of creativity from ordinary consumers commenting and building upon works from pop culture, and freely sharing their creations with the world, has been one of the defining cultural phenomena of this century… So, does copyright law support the participation of consumers in this new democratic art form? The answer, regrettably, is a resounding ‘no’, with only a handful of countries offering any consumers any legal protection. There are, however, early signs that this is beginning to be seen as a legal anachronism. In particular, a new provision proposed for Canadian law would legalise the creation of noncommercial derivative works that do not financially damage the original copyright owner.

Each year Consumers International identify the best and worst practices in the application of copyright laws. In the inaugural 2009 issue, technological protection measures (TPMs) were the first point of discussion:

When copyright material is protected by a TPM, no judge – in fact, no human being at all – determines whether or not the restrictions enforced by the TPM conform to copyright law. [Even if the purpose is for fair dealing] … in many countries the consumer cannot circumvent that restriction without breaking the law.

Despite being a leader in promoting TPMs, by virtue of its inclusion of fair use, the United States faired well in the first report:

The main reason why the United States is placed highly in the IP Watch List as a country that supports the interests of consumers is that its copyright law includes a broad exception for the “fair use” of copyright material. In most other jurisdictions, piecemeal exceptions exist for the use of copyright material for particular purposes such as research, criticism and reporting current news. In contrast, a broad fair use exception allows copyright material to be used for any purpose, so long as it satisfies a balancing test that includes factors such as whether the use is commercial or non-commercial, and its effect on the market for the copyrighted work.

Fair use was the first item of discussion in the 2010 best practices, with another favourable review of American law. A particular concern was addressed – does fair use comply with international law? Implicitly this means that exceptions to copyright must meet the “three-step test” laid out in the Berne Convention. Exceptions must (i) be confined to specific cases; (ii) not conflict with the normal exploitation of a work; and (iii) not unreasonably prejudice the legitimate interests of a copyright holder. CI wrote:

Most countries have implemented the three-step test by enacting … exceptions for specific purposes or specific classes of consumer, such as the educational, library and disability exceptions … But there is an alternative approach, first and most famously found in the copyright law of the United States, which stretches the three-step test almost to its limit. It allows for any use of a copyrighted work that can be described as ‘fair’, considering the purpose and character of the use, the nature of the work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the work. There are many uses of copyright materials that are allowed under US law as ‘fair use’, that would not be allowed under the more specific exceptions of other countries.

In the 2011 report, CI once again speaks approvingly of fair use and suggests that more countries will follow in these (positive) American footsteps:

Malaysia, Japan and the United Kingdom are also reviewing their respective copyright laws, and considering the merits of adding broad US-style ‘fair use’ rights. This is an overdue trend that Consumers International strongly welcomes.

** Note: The curiously-named International Intellectual Property Alliance (IIPA) is a regular contributor of input to the USTR. The IIPA was not impressed with Bill C-32; their recommendation of Canada for 301 inclusion can be found here.

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