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
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