US copyright lobby out-of-touch

The International Intellectual Property Alliance, an association that brings together US lobby groups representing the movie, music, software, and publisher industries, last week delivered its annual submission to the US government featuring its views on the inadequacy of intellectual property protection around the world.

The report frequently serves as a blueprint for the US Trade Representative's Section 301 Report, a government-mandated annual report that carries the threat of trade barriers for countries that fail to meet the US standard of IP protection.

The IIPA submission generated considerable media attention, with the international media focusing on the state of IP protection in Russia and China, while national media in Canada, Thailand, and Taiwan broadcast dire warnings about the consequences of falling on the wrong side of US lobby groups.

While the UK was spared inclusion on this year's list, what is most noteworthy about the IIPA effort is that dozens of countries - indeed most of the major global economies in the developed and developing world - are singled out for criticism.

The IIPA recommendations are designed to highlight the inadequacies of IP protection around the world, yet the lobby group ultimately shines the spotlight on how US copyright policy has become out-of-touch and isolated from much of the rest of the globe.

The IIPA criticisms fall into three broad categories. First, the lobby group is very critical of any country that does not follow the US model for implementing the World Intellectual Property Organisation's Internet Treaties.

Those treaties, which create legal protection for technological protection measures, have generated enormous controversy with many experts expressing concern about their impact on consumer rights, privacy, free speech, and security research.

Countries singled out for criticism should not be deceived into thinking that their laws are failing to meet an international standard.


The US implementation, contained in the 1997 Digital Millennium Copyright Act, represents the world's most aggressive approach to the WIPO Internet Treaties, setting very strict limits on the circumvention of digital rights management systems and establishing a ban on devices that can be used to circumvent DRM, even if the circumvention is for lawful purposes.

Given the US experience, it is unsurprising that many countries have experimented with alternate implementations.

This experimentation invariably leads to heavy criticism from the IIPA as countries such as Canada, New Zealand, Japan, Switzerland, Hong Kong, South Korea, Israel, Mexico, and India are all taken to task for their implementation (or proposed implementation) of anti-circumvention legislation.

Further, countries that have not signed or ratified the WIPO Internet treaties (which still includes the majority of the world), face the wrath of the US lobby group for failing to do so.

Second, in a classic case of "do what I say, not what I do", many countries are criticised for copyright laws that bear a striking similarity to US law. For example, Israel is criticised for considering a fair use provision that mirrors the US approach.

The IIPA is unhappy with the attempt to follow the US model, warning that the Israeli public might view it as a "free ticket to copy." Similarly, the time shifting provisions in New Zealand's current copyright reform bill (which would permit video recording of television shows) are criticised despite the fact that US law has granted even more liberal copying rights for decades.

The most disturbing illustration of this double standard is the IIPA's criticism of compulsory copyright licensing requirements.

Countries around the world, particularly those in the developing world (including Indonesia, the Philippines, Lebanon, Kuwait, Nigeria, and Vietnam) all face demands to eliminate compulsory licensing schemes in the publishing and broadcasting fields.

Moreover, the report even criticises those countries that have merely raised the possibility of new compulsory licensing systems, such as Sweden, where politicians have mused about an Internet file sharing license.

Left unsaid by the IIPA, is the fact that the US is home to numerous compulsory licenses.

These include statutory licenses for transmissions by cable systems, satellite transmissions, compulsory licenses for making and distributing phonorecords as well as the use of certain works with non-commercial broadcasting.


Some countries are criticised for offering exceptions to universities

Third, the IIPA recommendations criticise dozens of efforts to support national education, privacy, and cultural initiatives.

For example, Canada, Brazil, and South Korea are criticised for copyright exceptions granted to students and education institutions.

Italy and Mexico are criticised for failing to establish an easy method for Internet service providers to remove allegedly infringing content (without court oversight), while Greece is viewed as being offside for protecting the privacy of ISP subscribers.

Greece is also taken to task for levying a surcharge at movie theatres that is used to support Greek films.

Moreover, countries that have preserved their public domain by maintaining their term of copyright protection at the international treaty standard of life of the author plus an additional fifty years are criticised for not matching the US extension to life plus 70 years.

There are literally hundreds of similar examples, as countries from Europe, Asia, Africa, North and South America are criticised for not adopting the DMCA, not extending the term of copyright, not throwing enough people in jail, or creating too many exceptions to support education and other societal goals.

In fact, the majority of the world's population finds itself on the list, with 23 of the world's 30 most populous countries targeted for criticism (the exceptions are the UK, Germany, Ethiopia, Iran, France, Congo, and Myanmar).

Countries singled out for criticism should not be deceived into thinking that their laws are failing to meet an international standard, no matter what US lobby groups say.

Rather, those countries should know that their approach - and the criticism that it inevitably brings from the US - places them in very good company.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.