Canada, WIPO, and "certain obligations"

If and when there is a new copyright bill introduced before a possibly imminent election, there will be much talk about the 1996 WIPO treaties.

I make no comment on whether or not Canada should ultimately ratify the 1996 WIPO treaties. This is a complex legal, economic and political issue, and I am frankly rather agnostic about it at this time.

The decision to ratify should be taken with fully informed analysis on what is actually required to achieve compliance with these treaties, a subject upon which learned minds profoundly disagree at the moment. Ratification of these treaties may well be a good thing for Canada if there is a way of doing so that is good for Canada. I will venture, however, to say that the maximalist formulations for compliance being suggested in some quarters are neither required, nor are they in Canada’s best interests.

It is obvious that Canada should do what’s best for Canada, and if that permits ratification of these treaties, then by all means let’s ratify. However, let’s not let the treaties become the tail wagging the dog of necessary copyright reform. As I’ve pointed out before on November 26, 2007, Canada already provides much stronger copyright protection in many respects than certain countries, such as the USA, that have ratified these treaties.

And, in the meantime, let’s be accurate about just what Canada’s current “obligations” are regarding these treaties. The Hon. Jim Prentice, himself a lawyer and the lead Minister on this file, seems to be aware that he is walking a tightrope here. In his recent speech in Calgary, he made reference in the subsequent Q. and A. to the WIPO treaties and to “certain obligations to bring our law into conformity with, in a general sense, with the treaties that were signed….” Here’s his comment – and the WIPO point comes up at about the 40 second mark.

I have often said and been quoted on the principle that that signing a treaty is to ratification about the same as dating is to marriage. The latter does not necessarily follow from the former, and the influences on the relationship during the dating (i.e. signature) phase are, just as in person to person relationships, often defined more by influences other than legal “obligations.” Let’s just leave it at that.

But, there’s no need to take my word for this.Here is a learned comment on the effect of treaty signature in respect of international treaties:

The effect of signature is not, of course, to bind the signatory State but simply represents an acknowledgment of its intention to enact a law based on the Convention and, in due course, to ratify the Convention. It is only the ratification of the Convention by an existing member State which has signed the Convention, or accession to the Convention by a new member State, which creates an international legal obligation.

(emphasis added)

This is not the statement of a radical “anti-copyright” person. It actually comes straight from WIPO itself. See this document at §5.580.

www.wipo.int/about-ip/en/iprm/doc/ch5.doc

Coming from WIPO, that is about as strong a statement as one can find from a credible institutional source, and is not inconsistent with my simple dating analogy.

Others see the effect of signature as even less. Prof. J. Craig Barker puts it as follows:

The effect of signature is not, as one might expect, to bind a state to the terms of a treaty. There is usually a further stage of ratification required before a state party can be said to be fully bound. Nevertheless, the signature of a state to a treaty is not without effect. A state that has signed, but not yet ratified, a treaty is bound not to do anything contrary to the objects and purposes of that treaty prior to ratification or withdrawal of signature. However, a state is not bound to follow the terms of a treaty in their entirety until ratification.

(emphasis added)

The point is very simple. Canada may or may not choose to ratify the 1996 WIPO treaties. That is for the elected Government of the day to decide, and to be accountable for according to domestic law, accepted procedure, practice, and ultimately, politics.

However, Canada has not yet ratified these treaties. We have only signed them. Certain politicians may or may not have made certain statements and promises to certain lobbyists and ambassadors. But that is not the same thing as an “international legal obligation” in respect to the 1996 WIPO treaties.

Let us be precise with our language here and not use language too loosely. There is too much at stake.

HK