CANADIAN COPYRIGHT AMENDMENT LEGISLATION: NOT

UNCLAS SECTION 01 OF 02 OTTAWA 001990 SIPDIS SENSITIVE DEPT PASS USTR FOR CHANDLER AND ESPINEL E.O. 12958: N/A TAGS: ETRD KIPR CA WIPO SUBJECT: CANADIAN COPYRIGHT AMENDMENT LEGISLATION: NOT QUITE WIPO? REF: A. OTTAWA 1725 (INTELLECTUAL PROPERTY ACTION PLAN) ¶B. OTTAWA 1168 (CANADIAN REACTION TO GOC'S PROPOSED COPYRIGHT LAW AMENDMENTS) ¶C. OTTAWA 1571 (IPR FILESHARING APPEAL: RIGHTS-HOLDERS LOST A BATTLE BUT WINNING THE WAR) ¶1. (SBU) Summary and Action Request: As predicted (ref Ottawa 1725),the GOC has now tabled draft legislation amending the Copyright Act. The amendments are intended to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty; however, industry commentators have serious doubts about certain aspects of the legislative text. Our readthrough and initial rights-holder feedback suggests that the legislation may provide inadequate protection against hackers and that Internet Service Providers will not be made responsible for illegal activity which they may make possible in their capacity as hosts since the legislation seems to provide for a 'notice-and-notice' process rather than the U.S. model of 'notice-and-takedown'. We have provided the text of the amendment (at www.parl.gc.ca then click on "bills" then "government bills" then C-60) and the text of the original act (at laws.justice.gc.ca/en/C-42/) to various USG IPR experts. Action Request: To make the case for stronger rules in areas such as Internet Service Provider liability, please provide a clear USG reaction to the draft legislation for us to use in discussion with stakeholders, legislators, GOC agencies and the press. End Summary. Notice-and...what? ¶2. (SBU) The draft legislative text was tabled on June 20, and a quick review with local copyright experts produced the following observations. The legislation includes a detailed series of requirements that rights holders must meet in order to inform an ISP that its users are infringing copyrights (including a list of information that must be provided about the infringers, and the statement that the rights holders may be required to pay a fee for the privilege of informing the ISP). What the amendment does not include, however, is a requirement for an ISP to address this problem. Far from notice-and-takedown requirements which allow rights holders to require the ISP to remove infringing files, the legislation would require only that ISPs pass on complaints �A;to their clients and keep records of the complaints (a press release from the Entertainment Software Association of Canada describes this as allowing ISPs "to wink and nod at illegal activity".) One industry consultant points out that the fines if ISPs do not comply with this notice-and-keep-records scheme (a maximum of $5000 for not passing on the complaint and a maximum of $10,000 for not keeping records) are not even high enough to make it worth the costs of a court case. This consultant also emphasized the fact that the draft legislation seems to put privacy rights above intellectual property rights, by not requiring ISPs to provide any information about infringers. This is in contrast to the judgment in the recent appeals court case (ref Ottawa 1571) which affirmed that "(a)lthough privacy concerns must also be considered...they must yield to public concerns for the protection of intellectual property rights in situations where infringement threatens to erode those rights." But did they mean it, and did they know? ¶3. (SBU) As in the GOC's previous statements before tabling the draft text, there are lingering questions about the role of intent as well as new questions about the role of knowledge in infringement. Various sections of the draft include language such as providing injunctions against anyone who "...circumvents, removes or in any way renders ineffective a technological measure protecting any material form of the work...for the purpose of an act that is an infringement of the copyright..." or anyone who "...knows, or ought to know, that the removal or alteration will facilitate or conceal any infringement of the owner's copyright." This question of intent was of serious concern to certain interlocutors when it first arose (ref Ottawa 1571),but it has not yet been the focus of many of the comments we have received from rights-holders groups. One analyst suggests that the knowledge proviso may, in fact, coincide with similar provisions in the WIPO language itself, while another states that the legislation only goes "halfway" towards addressing Canada's international commitments, pointing out that "the anti-circumvention prohibitions, as drafted, make it a practical impossibility for law enforcement officers and rights holders to pursue legal action against those who manufacture circumvention devices." We anticipate further clarification on this issue, and we welcome any insights from USG copyright experts. Happy to have it, if not particularly happy with it ¶4. (SBU) Local copyright experts and stakeholders generally seem pleased that the GOC has finally tabled legislation, providing them with draft text for further analysis and criticism. Most rights holders, however, are not satisfied with the provisions of the text in current form. Provincial education authorities may call for even less-stringent rules, while rights-holders groups will push for strengthening of the provisions described in paragraphs 2 and 3. Additionally, with an election likely to be held after Parliament returns in September, there is little chance that this legislation will pass in 2005. While this additional potential delay is frustrating for many stakeholders, certain interlocutors have informed us that it gives them additional time to work towards improvements in the text. ¶5. (SBU) Earlier this week we sent links to the legislation and the Copyright Act itself (as in the Summary) to various USG copyright experts. We appreciate the feedback we have already received and look forward to a detailed USG position on the draft legislation. Visit Canada's Classified Web Site at http://www.state.sgov.gov/p/wha/ottawa WILKINS