Thursday, April 26, 2007

The Continuing CRIA Copyright Canard

There is another exchange underway between Michael Geist and CRIA's President Graham Henderson.

Personally, I’m not neutral. I always favour accuracy and sound legal analysis. On the issue of Canada’ comparative compliance with international law, the following point must be made:

• Henderson says that “In fact, Canada stands alone among its leading trading partners as having failed to meet its commitments under the World Intellectual Property Organization treaties.”

That is a recurrent CRIA canard that has been repeated too long and too often. The fact is that Canada has not breached any international legal obligations or commitments under these treaties for the simple reason that Canada has never ratified them. Nor has Canada made any binding legal commitment to ratify them. As I’ve said many times, signing a treaty is to ratification like dating is to marriage. The latter does not necessarily follow from the former.

Unless and until we do ratify these treaties, it’s time to stop talking about failing to meet non-existent “commitments”.

One point that both Michael and Graham both fail to mention in this exchange is that there is, indeed, one very conspicuous example of a G8 country that has seriously breached international legal copyright obligations, as adjudicated by the WTO and still flouts international copyright law by failing to pass legislation to protect the rights of composers and authors to be paid when their music is played, for example, in countless bars and restaurants.

That is the U.S.A. - which has been found by the WTO to have violated the WTO TRIPS agreement and its incorporated Berne Convention provisions. I’m quite sure that China is aware of the irony of the American’s position on copyright law.

As I said in this space on February 14, 2007:
The most flagrant adjudicated flouter of international copyright law is the USA. The WTO has long ago finally concluded that the USA fails to provide royalties for performing rights in many instances as a result of s. 110 of its Copyright Act. This is the most serious copyright dispute to date in the WTO and the USA is clearly unwilling or unable to do anything about coming into compliance. It has bought its way out of this violation with a paltry payment fixed by arbitration of about Euro 1,219,900 per year - a fraction of what the royalties ought to be.

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