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Canada and The WIPO Treaties: Flexibility Was Always Key

By Michael Geist

Yesterday I blogged about the origins of the WIPO Internet treaty, challenging Mihály Ficsor's claims that the treaty requires a ban on the distribution and manufacture of circumvention devices.  Coincidentally, I recently received long overdue documents under the Access to Information Act that highlight the Canadian position during the negotiations of those treaties.  As the Canadian delegation prepared to go to Geneva for the final round of negotiation, then Deputy Minister Kevin Lynch (later Clerk of the Privy Council under Prime Minister Harper) provided then Industry Minister John Manley with a memorandum approving the Canadian instructions (the delegation was led by Danielle Bouvet, then with Industry Canada).

Three issues stand out from the document.  The first has to do with the hesitation with the treaty itself.  The memo acknowledges "in certain areas, the proposed treaty language has not been the subject of adequte debate within Canada - or indeed internationally." Perhaps arising from these concerns, the memo concludes by noting "the delegation will not have full powers to sign a treaty."

Second, the position of the Canadian government was to support provisions that would not result in major changes to domestic law or were sufficiently flexible in implementation.  In particular, the memo states that "Canada will also support provisions that constitute minor changes to domestic policy, or which provide flexiblity to adopt measures compatible with Canadian policy."  The delegation instructions were therefore limited to provisions consistent with Canadian law (which the WIPO Internet treaties were not) or were flexible in implementation.

Third, notwithstanding the admitted lack of debate, it is striking to see how much more open the WIPO Internet treaties were than the current ACTA negotiations.  The memo states:

Drafts of the treaties to be negotiated at the Conference were made available by WIPO in early September 2006. Copies have been distributed by Industry Canada to over 200 individuals and groups representing Canadian stakeholders, who were invited to file written submissions. Consultation meetings were held with individual stakeholders. The key stakeholders were invited on November 14 to review the draft treaties with the author, Jukka Liedes of Finland.

Compare that process with the current one in ACTA, where there are no drafts to share - just vague promises about making drafts available after the talks are concluded.

Full post as published by Michael Geist on December 23, 2009 (boomark / email).