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The Entertainment Software Association, you may have heard, has been making noise recently about keeping Canada on the U.S. Trade Representative’s “Priority Watch List” of countries with rampant piracy problems and an unwillingness to do anything about them. As part of the International Intellectual Property Alliance, which filed a Special 301 Report asking that Canada be kept on the list, the ESA expressed its “continued disappointment” with Canada over its “legislative deficiencies and a lack of consistent, deterrent enforcement” of IP laws.

Let me first summarize the reaction of most Canadians by saying, “Oh, boo hoo.” That may sound vaguely knee-jerkish but regardless of the legitimacy of the IIPA’s position, and that’s certainly debatable, the one thing we Toronto-hatin’, Hockey Night-lovin’, Moosehead-drinkin’ hosers just don’t care for is Americans trying to tell us what to do. That kind of thing just doesn’t play too well up here.

But there’s more to it this time around than just the indignant outrage of the Kenora dinner jacket crowd. A far more considered and intellectually hefty opposition to Canada’s presence on the Priority Watch List comes from none other than the Computer and Communications Industry Association, which “opposes placing Canada on any Special 301 list in the company of nations that genuinely fail to provide adequate and effective protection [to IP laws].”

And just what is this Computer and Communications Industry Association? “CCIA is a nonprofit membership organization for a wide range of companies in the computer, internet, information technology, and telecommunications industries, represented by their senior executives,” the agency’s website says. “Created over four decades ago, CCIA promotes open markets, open systems, open networks, and full, fair, and open competition.” CCIA members include Google, Microsoft, Oracle, Yahoo!, Intuit, Nvidia and many others.

While none of those companies are specifically game-oriented, they draw a lot of water in the overall technology industry and presumably have a certain valuable insight into the nature of software piracy and how best to fight it. And unlike the IIPA, the CCIA believes that the inclusion of Canada on the Special 301 list is a mistake that ultimately diminishes the credibility of the process.

“Placing IP-respecting nations with whom we differ on policy among IP scofflaws undermines the deterrent effect of such treatment for those nations which genuinely perpetuate the most onerous or egregious acts, policies, or practices with respect to rights related to intellectual property,” the CCIA said in its own filing to the U.S. Trade Representative, made on February 16.

“CCIA opposes placing Canada on any Special 301 list in the company of nations that genuinely fail to provide adequate and effective protection. Canada’s current copyright law and practice clearly satisfy the statutory ‘adequate and effective’ standard,” it continued. “Indeed, in a number of respects, Canada’s laws are more protective of creators than those of the United States.” That’s a bold statement, but coming as it does from a copyright advocacy group with heavy hitters like Microsoft on board, not one that should be dismissed outright.

One of the IIPA’s primary complaints is that despite being a signatory to the World Intellectual Property Organization treaties, Canada hasn’t actually done anything to bring its laws into compliance with its regulations. But as the CCIA notes, providing “adequate and effective protection” to intellectual property rights is a function of Canadian law, not whether or not Canada has ratified any particular treaty. One particular sticking point revolves around hardware like the notorious R4 device for the Nintendo DS and other mod chips, which are illegal in the U.S. but not in Canada. “The widespread availability of circumvention devices in Canada, which are not prohibited under Canadian law, is central to the piracy problem,” the IIPA claimed in its filing to the USTR. “The lack of TPM [technological prevention measures] protections in Canada also enables vendors to import circumvention devices from overseas manufacturers by the thousands.”

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But here’s the deal: TPMs that prevent copying of materials are related to copyright, according to the CCIA, but “access TPMs,” like those used in garage door openers to keep competitors from accessing their products, are not. That’s where devices like the R4 enter into it: Owning one doesn’t make a person a pirate any more than owning a gun makes him a murderer. It’s what you do with them that counts.

“Whether a country provides legal protection to an access TPM cannot form the basis for an alleged lack of adequate and effective copyright rights,” the CCIA said. “TPMs are a means to an end, and it is the end that matters, not the means. If a country, such as Canada, has adequate and effective laws against copying works of authorship – as it surely does – Section 2242 [of the Copyright Act] must be satisfied.”

And then comes the smackdown: “This issue is not merely abstract: One could circumvent a technological lock not for the purpose of violating a copyright right, but rather for the purpose of engaging in permitted behavior, such as fair use, fair dealing or for educational purposes,” the CCIA wrote. “The USTR should not entertain the desires of certain rightsholder constituencies which seek to ban activities that are permitted under the copyright laws through the backdoor of a digital technological lock. Neither Canada nor any other country has to agree to such a wrong-headed policy; it is an improper use of the Special 301 Review to place countries on a watch list for refusing to cripple their own industries’ innovation and damage the welfare of their own consumers.”

I really can’t think of a single thing to add to that statement, except perhaps, Yeah! In your face! And if it seems that I’m getting a little too stoked for such dry, legalistic reading (and believe me, there’s a lot more to it than the little I’ve mentioned here) it’s only because this is the first time I’ve seen any sort of credible defense of the Canadian system mounted by a group whose opinion might actually be taken seriously.

As University of Ottawa professor and noted copyright soldier Michael Geist pointed out, this response “is precisely the kind of defense that Canadian officials should be making when confronted with fear-mongering from the usual suspects about the state of Canadian copyright law. That it is the world’s leading technology companies speaking out should send a strong signal to Industry Minister Tony Clement and Canadian Heritage Minister James Moore about how Canadian law is actually viewed by leading companies as they craft copyright reforms and develop a national digital strategy.”

Will the fact that these technology giants are singing the praises of the Canadian system do anything to sway the USTR? Probably not. Taking Canada off the watch list before the country makes any meaningful changes to its copyright laws is essentially admitting that the CCIA is right, and that is tantamount to admitting that the problem is not us, it’s you. That’s where things really start to get ugly; yelling at your neighbors to clean up their yard is one thing but taking care of your own is a whole different matter, and I don’t see the U.S. as being particularly gung-ho about scrapping the 1998 Digital Millennium Copyright Act and everything that’s followed just because a few stubborn Canucks won’t play ball.

So instead I maintain the hope, faint though it may be, that Canadian governments now and in the future will have the stones to stand their ground. Maybe someday, international copyright reform that actually addresses the needs of rights holders and users alike will be put into place, and we can enthusiastically hop aboard. In the meantime, stop blaming Canada: Lumping us in with countries like China and Indonesia just makes the entire Special 301 process look ridiculous.

Andy Chalk realizes that Professor Geist used “Don’t Blame Canada” too, but hey, it’s not like he copyrighted it.

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