Law Times

Law Times • may 11/18, 2009 NEWS PAGE 5 Lawyers defend Canada's copyright laws and policy BY ROBERT TODD Law Times fi ce of the United States Trade Representative elevated Canada to its "priority watch list" on the adequacy and eff ectiveness of in- tellectual property protections. "Nothing really is diff erent to cause Canada to be put on this so-called priority watch list, oth- er than the worried concerns of certain lobby groups in the Unit- ed States," says Dimock Stratton LLP partner Ronald Dimock, a leading IP litigator. "Th e USTR really just echoes what the lobby group gives to it each year in complaints." Th e USTR's move comes L through its annual "Special 301 Report," which U.S. Trade Representative Ron Kirk says "guides our eff orts to protect American innovation and cre- ativity around the world." In a press release, Kirk stated, "In this time of economic uncer- tainty, we need to redouble our eff orts to work with all of our trading partners — even our clos- est allies and neighbours such as Canada — to enhance protection and enforcement of intellectual property rights in the context of a rules-based trading system." Th e USTR said Canada, which in recent years was placed on the "watch list," was awyers are defending Canada's copyright laws and policy after the Of- elevated to the priority list that includes 12 countries, due to "increasing concern about the continuing need for copyright reform, as well as continuing concern about weak border enforcement." Th e priority list also in- cludes countries such as Chi- na, Russia, India, Pakistan, Th ailand, and Venezuela. Th e USTR said countries on the list "will be the subject of par- ticularly intense engagement through bilateral discussion during the coming year." An Industry Canada spokesman noted that the country's IP regime meets in- ternational obligations. "Th e Government Picture Association of Amer- ica, National Music Publish- ers' Association, the Associa- tion of American Publishers, and several other groups. "One way of looking at it is, one might react to this the way a school child might in the school yard, by 'Sticks and stones might break my bones but names will never hurt me,'" says Dimock. "Branding Canada, or any- one, this way is not the recom- mended way of negotiating of Canada is disappointed with the United States' decision to elevate Canada on their 2009 'Special 301 Report,'" said Derek Mellon, in an e-mail re- sponse. "Th e USTR appears to have responded to political pres- sure rather than undertaking an objective analysis." Mellon said the govern- ment plans to begin consulta- tions on copyright reform this summer, "and will proceed with the introduction of a new bill once satisfi ed that it would appropriately implement their objectives for the act." He also said, "Th e Copy- right Act must continue to re- fl ect current technological and legal realities, while supporting 'The USTR really just echoes what the lobby group gives to it each year in complaints,' says Ronald Dimock. innovation, creativity, and the needs of consumers." Canada's latest round in ongo- ing eff orts to modernize the act, bill C-61, died on the order paper after Parliament was dissolved in 2008 before an election was held. Dimock says the "Special 301 Report" really refl ects the opinion of lobbyists forming the International Intellectual Property Association, whose members include the Motion one's own interests and rights. You do it in a bilateral way, and you negotiate fairly. Th ere's a lot of concern expressed about this 301 watch list as merely just a way of branding coun- tries who are not in step with these U.S. copyright owners." Macera & Jarzyna LLP counsel and copyright lawyer Howard Knopf says the most im- portant factor to consider is that Canada is not contravening any international obligations in the area of intellectual property. He notes that the U.S. in 1996 managed to get a pair of Internet treaties passed through the World Intellectual Property Organiza- tion. Canada participated in that process and signed the treaties, but there are no legal obligations attached that force ratifi cation and implementation. "In fact, very few G8 countries have actually done so," he notes. "Japan has; Europe has talked about it for a long time, but the European Union has not actually ratifi ed those treaties." Knopf suggests it may be in Canada's best interest to follow through on the treaties, but adds that the country should not be pressured into doing so. "It should be done on Cana- da's terms, in Canada's way, and in Canada's own time," he says. "And the treaties, in certain re- spects, are already obsolete." Dimock maintains that Canada's copyright law "is alive and well." He says our courts ably protect IP rights, pointing as an example to the recent copyright settlement between newspaper freelanc- ers and Th e Globe and Mail. "Th is victory, in that sense, in getting fair compensation for copyrights shows that Canada and the Supreme Court of Can- ada upheld the freelancers' rights against the Globe," says Dimock. "Th ere's a whole host of deci- sions in our courts that have up- held copyrights." LT "Criminalization of HIV Transmission and Exposure" PUBLIC LECTURE BY Justice Edwin Cameron Constitutional Court of South Africa Friday, June 12, 2009 6:00 pm – 8:30 pm OSGOODE HALL, 130 QUEEN ST. W, TORONTO, ON RECEPTION TO FOLLOW. FREE ADMISSION. 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