Thursday, April 30, 2009

Canada and the 301 Priority Watch List - “Now She's Hit the Big Time in the USA”

Canada has finally made it to the top level of the USA's “Special 301" list, as I have recently predicted. Here's the scoop, according to the USTR, which says that:
Canada is being elevated to the Priority Watch List for the first time, reflecting increasing concern about the continuing need for copyright reform, as well as continuing concern about weak border enforcement.
Canada is arguably the star of this year's report. Here's the portion on the Report featuring Canada:
Canada will be added to the Priority Watch List in 2009. The United States appreciates the high level of cooperation between our two governments in many important bilateral and multilateral IPR initiatives. The United States also welcomed the Government of Canada’s reaffirmation earlier this year of its 2007 and 2008 commitments to improve IPR protection and enforcement. However, the Government of Canada has not delivered on these commitments by promptly and effectively implementing key copyright reforms. The United States continues to have serious concerns with Canada’s failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties. The Unit ed States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada. Canada’s weak border measures continue to be a serious concern for IP owners. The United States hopes that Canada will implement legislative changes to provide a stronger border enforcement system by giving its customs officers the authority to seize products suspected of being pirated or counterfeit without the need for a court order. The provision of additional resources and training to customs officers and domestic law enforcement personnel would enhance IPR enforcement. The United States will continue to follow Canada’s progress toward providing an adequate and effective IPR protection and enforcement regime, including near term accession to and implementation of the WIPO Internet Treaties and improved border enforcement.
Meanwhile, it doesn't hurt to rhetorically ask again and again when the USA intends to:

1. Comply with and stop flouting the nine year old WTO Ruling as to its violation of the Berne Convention in the “s. 110" matter, by denying royalties to composers and authors for performances in countless small business establishments;
2. Get counterfeit merchandise off the street corners of midtown Manhattan; and,
3. Generally do something about the dozen or so ways in which American copyright law is weaker and worse than Canadian law, because Canada's is stronger and better, as I outlined at the Fordham Conference in 2008?

It's also useful to recall one of the last newpaper interviews given by the late, irreplacable and uniquely authoritative Sir Hugh Laddie who told The Times in a story on June 3, 2008 a few months before his death last year "Of course there is counterfeiting in China, but the same goes on in the US and Europe. Pro rata, the biggest source of pirated computer software in the world in the US.”

Canada is now in interesting company with China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Israel, Pakistan, Thailand, Venezuela.

Fortunately, Canada has traditionally taken this exercise with the appropriate grain salt:
In regard to the watch list, Canada does not recognize the 301 watch list
process. It basically lacks reliable and objective analysis. It's driven entirely by
U.S. industry. We have repeatedly raised this issue of the lack of objective
analysis in the 301 watch list process with our U.S. counterparts.

I also recognize that the U.S. industry likes to compare anyone they have a
problem with, concerning their IPR regime, to China and the other big
violators, but we're not on the same scale. This is not the same thing. If you
aren't on the watch list in some way, shape, or form, you may not be of
importance. Most countries with significant commercial dealings are on the
watch list.
(House of Commons, Standing Committee on Public Safety and National Security, No. 35, 1st Session, 39th Parliament (March 27, 2007), at 1150 (testimony of Nancy Segal).
As I've said before, it's too bad that the USTR can't put the USA on its own "Special 301" list. If analyzed objectively, I've little doubt where it would rank.


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