Law Times

PAGE 10 U.S. continues critique despite new law New Copyright Act fails to get Canada removed from Special 301 list FOCUS BY KENNETH JACKSON For Law Times E very allegedly problematic intellectual property laws. There were 40 countries on the States releases what it calls the Special 301 report that lists countries with year, the United 2012 list for not being tough on piracy, having insufficient protec- tions or lack of enforcement. The really bad ones go on the so-called priority watch list. That list has 10 countries, in- cluding China, Russia, and India. It also includes Canada. Cana- da has been on the list since 2009. "The is an important trade tool for achieving improvements to protect our nation's creative in- dustries, reduce piracy abroad, and topple market access bar- riers to U.S. copyrights," said Special 301 process 'I don't think anybody treats Canada's pres- ence on the priority watch list as being serious,' says Claude Brunet. the Washington-based Inter- national Intellectual Property Alliance back in February. It said Canada deserved to be on the list because it stands "vir- tually alone" among developed economies and far behind many developing countries in failing to bring its laws into compliance with the minimum standards embodied in the World Intellec- tual Property Organization Inter- net treaties and in legislative best practices worldwide. Canada "is cementing its repu- tation as a haven where techno- logically sophisticated interna- tional piracy organizations can operate with impunity," the alli- ance said. Norton Rose Canada LLP in- gall for the United States to put Canada on that list. The inclu- sion of Canada on the prior- ity watch list is almost a game Canada has somewhere along the way agreed to play. I don't think anybody treats Canada's presence on the priority watch list as being serious." The U.S. report does address Bill C-11 that received royal as- sent in June and aims to reform Canada's copyright laws. The bill "includes robust tellectual property lawyer Claude Brunet says the lists are a game the Americans play to try to bully Canada into following their laws. "If you go back to all the Special 301 reports year in and year out, you see the same sentences," says Brunet. "It's getting to be quite rep- etitious and tedious. At times, I would say that it takes a bit of protections for access and copy control technologies and a new (though incomplete) provision targeting online services that pri- marily enable infringement," the report stated. "However, its approach to the role of service providers in com- bating online piracy is insufficient and deeply flawed and it would add a host of new exceptions to copyright protection." Reach one of the largest Canada! legal and business markets in that the United States is trying to harmonize copyright legisla- tion throughout the world on the model of the U.S. Copyright Act, says Brunet. "C-11 goes a long way in modi- In terms of Bill C-11, it's clear be happy with that." Toronto copyright lawyer fying the Canadian act to be more similar to the American philoso- phy of control," he says. "I think the Americans should Mark Hayes doesn't feel Canada is as far behind as the Ameri- cans claim. "It's not as though Canada is September 24, 2012 • Law timeS completely out of step with ev- eryone else in the world," says Hayes. "There are lots of countries that have not yet implemented the WIPO Internet treaties or al- tered and implemented them in a way that the U.S. and some other countries don't because they are not as strong as they think they should be." Canada has tried to imple- especially like ment stronger copyright laws but has had trouble doing so in part because it had a minority govern- ment for several years. "As a result, it was very dif- ficult to pass anything because copyright is so fraught with vari- ous interests who try to get their agenda in play that it's very easy for someone to make a lot of noise and prevent statutes from passing," says Hayes. He notes there were three dif- ferent attempts to change the laws that failed when governments fell. "It just so happened they coin- got a majority, they passed the legislation relatively quickly. Hayes criticism of the time the effort has taken has been unfair. He believes the government has done a good job in coming up with a bill that's reflective of a made-in-Canada solution. "There are a number of pro- thinks a lot of the cided in a period when it was dif- ficult for the federal government to pass contentious legislation," says Hayes. As soon as the Conservatives With more than 192,000 page views a month, canadianlawlist.com captures your market Th e all-new canadianlawlist.com features: — A fresh new look, designed for improved user experience — Eff ective new ways to reach the legal market — Gold and silver advertising packages For more information contact: Colleen Austin at 416-649-9327 or toll free at 1-800-387-5351 colleen.austin@thomsonreuters.com www.lawtimesnews.com visions regarding time shiſting and format shiſting and mash- ups, which are way ahead of what is being implemented any- where else," says Hayes. "If you are a copyright lobby- bring Canada ahead of other countries and in other aspects will leave it behind. But, ac- cording to Hayes, it will work for Canada. LT ist who is lobbying on behalf of copyright measures, you are not going to be happy because what it does is allow individuals to use your copyright material in ways you may not approve of. I think the government has been very practical and very realistic in trying to come to a place that really deals with some of the is- sues, especially online issues, that we face today." In some ways, the bill will Online Print and in

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