Copyright Consultation: WIPO treaties

There are now only 5 days left to make your voice heard on this critically important issue. In recent years two different governments tabled copyright bills: the Liberal Bill C-60 on June 20, 2005 and the Conservative Bill C-61on June 12, 2008. (Note: Similar numbers only coincidence). When looking at these bills, both of which died on the order paper, you will notice that the majority of the bills dealt with ratifying two treaties Canada signed in 1996. We must look at these treaties to understanding what will likely form the bulk of the next copyright bill.

There are a number of myths about these treaties. The most common is that signing a treaty creates an obligation to ratify. The reality is that signing is to ratifying like dating is to marriage. The Minister of the day, Sheila Copps, even asked whether signing created any obligation — and was told it did not indicate anything other than an interest to investigate the subject of the treaty.

Another confusion is between the two highly controversial treaties authored in 1996 and WIPO copyright treaties generally. I have written on this blog in the past that there are 6 copyright related treaties. In that previous article I listed the dates when the UK, France, Canada and the United States either ratified or signed treaties, and whether neither was done. Canada signed the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms on October 29, 1971 and never ratified, and nobody is suggesting that this created some sort of obligation or that there is some mythical rush to ratify.

I wouldn’t want to try to go through a list of far more critical global treaties that our trade partners have signed and never ratified, or examples like the United States which withdrew from the International Court of Justice in 1986 after they were found guilty by the court in Nicaragua v. United States.

Keep in mind when observing pressure from some of our trade partners, especially the United States, that there are cases where they didn’t even bother to sign WIPO treaties leave alone implement or ratify them. While Canada has been under the Berne convention since the 1880’s, it wasn’t until the 1980’s that the United States finally joined. The Berne convention became WIPO treaty #1 when WIPO was formed in 1967. WIPO lists Canada as having ratified Berne in 1928, but that is only because we passed our first independent copyright act in 1921. Prior to that time Canadians were under British copyright and related laws, which means we were under Berne since the UK ratified in 1887 when it first came into force.

When I say I am opposed to Canada ratifying the 1996 WIPO treaties I only mean these two treaties, and am not commenting on the other 4. I am also not automatically opposed to future treaties at WIPO which may turn out to be far more forward looking given WIPO is in the process or reforming itself to become more consistent with its being an agency of the United Nations. There are now meetings discussing limitations and exceptions to copyright (An example being those that benefit the blind), and a development agenda which are very positive developments for those of us that believe that copyright must be fair not only to the special interests of corporations in industrialized countries, but also to the rest of us. There are many modernizations to WIPO treaties I am in favour of, and include a few in my submission to this consultation.

A few people have focused on specific articles within the 1996 WIPO treaties and claim that without ratifying the treaty that the benefits of those policies aren’t possible. These people have this issue entirely backwards.

WIPO Copyright Treaty (WCT) article 22 and WIPO Performances and Phonograms Treaty (WPPT) article 21 state that there can be no reservations to these treaties. This means that if you ratify you must accept every article of the treaty.

The reverse is not true. It is quite possible for Canada to take any good ideas from anywhere, including from a WIPO treaty we don’t intend to ratify, and implement in Canadian law.

Those who think that specific clauses of the treaties would benefit them should focus on advocating for those specific clauses. It may be that there are clauses that would benefit Canadians, but that should not suggest that we ratify the 1996 treaties given there are many other clauses that are extremely harmful.

I believe people should look at each clause of the 1996 WIPO treaties to see if they agree with every one of them before suggesting that we should ratify the treaties. I authored my own summary of the clauses of the WCT in an article titled Why am I opposed to the upcoming Copyright bill even before I have seen it?. While I comment on every article in the WCT, the two I disagree with the most are the two that are most controversial internationally: legal protection for technological measures and the confusions around the “making available” language in articles 6 and 8. I also discuss the origins of these treaties, and how protecting from legitimate new-media competition was more the goal than reducing copyright infringement.

While it is possible to implement the language in the treaties around technological measures and “making available” in a way that is of minimal harmful, I suspect it would be easier to renegotiate these treaties at WIPO than to get specific trading partners to agree to a reasonable interpretation. There is considerable pressure from the United States, the country that policy laundered these treaties through WIPO in the first place, to implement these treaties the way they were conceived in their failed 1995 National Information Infrastructure implementation bill or later implemented in their 1998 Digital Millennium Copyright Act (DMCA). These bills/acts go far beyond what the treaty language says, and deep into anti-competitive locks on contents and locks on devices where owners are not given the keys (most appropriately thought of as a form of “theft”).

It has become obvious to me in the almost decade I’ve dedicated to this area of policy that most people commenting on these technological acts (digital “making available” and “technological measures”) lack a basic understanding of the technology they are advocating be excessively regulated.

If you take peer-to-peer as an example, you have a sender and zero or more receivers of a given communication. In order for someone to receive a communication, someone needed to have sent it.

The current Copyright act has a concept of communicating the work to the public by telecommunication, as well as the concept of copyright holders having the exclusive right to authorize this communication. While this was conceived in the context of broadcasting, the number of receivers can’t reasonably affect whether the act of communicating happened. The copyright act does not require proof that anyone was ever watching the television for a broadcaster to have infringed copyright. This makes it clear to me that the unauthorized sending of copyrighted works is already covered by copyright.

What isn’t as clean in on-demand communication is whether it is only the sender or both the sender and the receiver that is liable, given it is the receiver that determines the timing of the communication. This would be a small amendment to the act to clarify, not the radical and confusing change proposed by the 1996 WIPO treaties. I believe that in order for the work to be communicated that the sender must have configured their computer to send the file which is itself a clear act of authorization, suggesting there should be no confusion about whether the sender is already liable under current copyright law.

When speaking to non-technical people they easily get confused about the technology. A technical person knows that sending and receiving are two parts of the same communication, and that it is impossible to receive something that isn’t being sent. These non-technical people get caught up with words like “uploading” and “downloading” and somehow believe that you can “upload” into a magical cloud (as opposed to send to a physical computer that is receiving) and that this cloud can magically allow people to “download” files (as opposed to some physical computer sending files on-demand to recipients). Once people understand how these things work in real life, many of the claims that our current Copyright act doesn’t already cover these activities evaporate as well. It is clear we need better technical education for lawyers and judges, not radical changes to the law.

This problem is even more pronounced when discussing “technical protection measures” given much of the discussion is based on science fiction and not science. In my presentations on protecting information technology property rights I try to remind people that content is passive, and that digitally encoded can no more make itself unable to be copied or self destruct than a paperback book is capable of reading itself out loud. While this may seem silly, this is the level of technical knowledge of the vast majority of those pushing forward regulations on technology.

It is critically important that technical people get involved in the copyright consultation. What is being discussed is primarily regulations on technology, and without the addition of some science to the science fiction we will end up with laws that will be harmful to everyone.

Note: Please comment below. If you are thus far a proponent of ratifying the policy laundered 1996 WIPO treaties, please tell me if you agree with the entire treaty or are only interested in parts. If specific parts, which parts do you wish to incorporate into Canadian law and why? It might be that you can convince me and other readers of the value to Canadians such that we will include this support in our own submissions. I will remain strongly opposed to ratification of these two treaties, but this does not mean I oppose every article of both treaties.

Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

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