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The Case for Flexibility in Implementing the WIPO Internet Treaties

By Michael Geist

Over the next few weeks, I'll be placing the spotlight on the many contributions in From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda.   My substantive contribution focuses on the legal requirements to comply with the World Intellectual Property Organization's Internet treaties. With the treaties dating back to the 1990s the issue may seem dated, yet it still resonates today. Within a domestic context, the government has identified ratification of the WIPO Internet treaties as one of Bill C-32's chief goals.  Internationally, the 1990s WIPO debate was re-enacted this year during the Anti-Counterfeiting Trade Agreement negotiations, with the U.S. again failing to convince its negotiating partners to adopt its implementation approach for anti-circumvention.

My article examines the issue from four perspectives: the plain language of the statutory requirements, the legislative history behind the inclusion of anti-circumvention provisions within the treaty, state practice in implementing those requirements, and scholarly analysis of the treaty obligations.

The key sections in the article are the legislative history and country implementations.  A comprehensive review of the minutes of the meetings and conferences leading to the treaty conclusively demonstrate broad opposition to the proposed approach from the United States (in fact, Canada indicated its inability to support it on more than one occasion).  For example, at the Diplomatic Conference in December 1996, 13 of the 19 delegations to speak in the debate spoke explicitly in favour of some amendment that would reduce the scope of the protection of technological measures (relative to the U.S. proposal).

The review of implementation at the country-level shows how the WIPO participants have also recognized the treaty's flexibility.  The U.S. had an early proposal that did not include prohibitions on anti-circumvention devices and accounted for fair dealing.  It later passed the DMCA, but officials acknowledged that it went beyond the treaty requirements.  Several countries have proposed or passed legislation that explicitly links circumvention with copyright infringement, including New Zealand, Switzerland, Canada (Bill C-60), India, and Brazil.  Many other countries have used the treaties' flexibility to craft their own solutions - Japan excludes access controls, Italy permits circumvention for private copying, Greece established a legal right to pursue access, and the Netherlands grants the Justice Department the power to decree access.

As Bill C-32 winds its way through the legislative process, stakeholders from across the spectrum will provide their views on whether or how the anti-circumvention provisions should be amended.  While there will be many claims about the efficacy of TPMs, the desirability of anti-circumvention rules, and the impact of the copyright balance, the record conclusively demonstrates that Canada has the right under the WIPO Internet treaties to enact rules that link circumvention to actual copyright infringement and to reject the inclusion of comprehensive restrictions on the trafficking of circumvention devices.

Full post as published by Michael Geist on October 20, 2010 (boomark / email).