INTELLECTUAL PROPERTY ACTION PLAN: ENGAGING GOC ON

UNCLAS SECTION 01 OF 02 OTTAWA 001725

SIPDIS

SENSITIVE

DEPT PASS USTR FOR CHANDLER AND ESPINEL

E.O. 12958: N/A
TAGS: ETRD KIPR CA
SUBJECT: INTELLECTUAL PROPERTY ACTION PLAN: ENGAGING GOC ON
IPR UNDER SPP BEFORE OCR

REF: A. OTTAWA 1305 (CANADA'S RESPONSE TO 2005 SPECIAL

301 REPORT)

B. SECSTATE 94876 (REQUEST FOR NOMINEES: USPTO
INTELLECTUAL PROPERTY ENFORCEMENT
PROGRAMS)

C. OTTAWA 1571 (IPR FILESHARING APPEAL:
RIGHTS-HOLDERS LOST A BATTLE BUT WINNING
THE WAR)

INTELLECTUAL PROPERTY ACTION PLAN: ENGAGING GOC ON IPR UNDER
SPP BEFORE OCR


1. (SBU) Summary and Action Request: Following the Special
301 decision requiring an out of cycle review for Canada
(OCR),we urge Washington agencies to engage directly with
Canadian officials to clarify the issues and assess how much
progress can be expected during the review period. Following
are our suggestions for elements of an action plan for the
review period. Action Request: Post requests comments on our
proposals, and as appropriate, requests that Washington
agencies propose dates and agenda for working group meetings
or other forms of contact with Canadian officials. End
Summary.


2. (SBU) The recent Appeals Court decision negating last
year's controversial court decision that peer-to-peer
filesharing is legal in Canada has reassured many
rights-holders, but the appeals judge stopped short of
actually declaring filesharing illegal. This gray area in
Canadian IPR emphasizes the need for the GOC to ratify the
World Intellectual Property Organization (WIPO) treaties.
Copyright amendment legislation that will allow Canada to
ratify the WIPO treaties is expected to be introduced this
week. Earlier GOC descriptions of their intended copyright
act amendments made it clear that the draft legislation will
likely not meet rights-holders' expectations in a few key
areas, including Internet Service Provider 'notice and
takedown'. USG will need to engage the legislative branch as
well as relevant departments. The tabling of the draft
legislation offers an opportunity for us to re-engage on IPR:
the Canadians have been expecting a U.S. proposal to meet
since the release of the Special 301 report and have
reiterated their readiness to cooperate.


3. (SBU) Bilateral Working Group: We suggest that an
effective U.S.-Canadian working group would be the best way
of institutionalizing IPR cooperation and encouraging
stricter IPR enforcement in Canada: participants could
include U.S. Patent and Trademark Office (USPTO),U.S.
Copyright Office, DHS, and Embassy Ottawa on the U.S. side
and International Trade Canada, Royal Canadian Mounted
Police, Canadian Heritage, Industry Canada, and Canada Border
Services Agency on the Canadian side. A notional agenda for
a first meeting (or video conference) could include an
exchange of contact information, a Canadian briefing on IPR
law and enforcement procedures, and a U.S. list of specific
questions and concerns about procedures (drawn in part from
the past Special 301 process). It could conduct its business
independently or under SPP or STOP; we believe SPP provides
an excellent potential forum for cooperation on IPR, as IPR
already figures in both the security and prosperity agendas,
e.g. the signature theme of a "Fake Free North America." As
noted previously (ref Ottawa 1305),a working group linked
explicitly to Special 301 is likely to be less popular with
Canadian officials, who regularly note their objection to the
entire Special 301 concept. In any case, we suggest that an
initial meeting or DVC should take place before the end of
June. In the meantime, Embassy Ottawa will continue to meet
with industry representatives to detail their concerns for
discussion by any eventual working group.


4. (SBU) IPR Enforcement: Training and Technical
Consultations: We have also solicited names of Canadian
officials who would be interested in attending USPTO
enforcement training (ref SECSTATE 94876),and we will submit
Embassy and Consulates' nominees in the next two weeks.
Initial responses from Canadian federal officials have been
very positive, and we hope that this training will provide a
good opportunity for networking between enforcement agents on
both sides of the border. We understand that DHS is willing
to host a visit of Canadian officials to the DHS IPR
enforcement center (or a video conference). There are also a
number of bilateral fora which can be used during the course
of the year to address IPR enforcement, including the Cross
Border Crime Forum (October 2005) and high-level meetings.


5. (SBU) WIPO Ratification/Copyright Act amendments: We
expect the GOC to table legislation amending the Copyright
Act to implement WIPO obligations within the next week. If
we want to make the case for stronger rules in areas such as
Internet Service Provider liability, we need to have a quick
and concise USG reaction to that draft to use in discussion
with stakeholders, legislators, GOC agencies and the press.
Although the passage of the copyright act amendments is a key
goal under the 2005 Special 301 report, it seems unlikely
that legislation will pass before the end of 2005. However,
USG should continue to encourage expeditious legislation,
since the recent appeals court decision emphasizes that the
question of legality of peer-to-peer filesharing has not been
answered and Canadian rights-holders currently have no
recourse such as "notice and takedown" (ref Ottawa 1571).

Visit Canada's Classified Web Site at
http://www.state.sgov.gov/p/wha/ottawa

DICKSON