This record is a partial extract of the original cable. The full text of the original cable is not available.

301425Z Jun 05

UNCLAS SECTION 01 OF 02 OTTAWA 001990 
 
SIPDIS 
 
SENSITIVE 
 
DEPT PASS USTR FOR CHANDLER AND ESPINEL 
 
E.O. 12958: N/A 
TAGS: ETRD KIPR CA WIPO
SUBJECT: CANADIAN COPYRIGHT AMENDMENT LEGISLATION: NOT 
QUITE WIPO? 
 
REF: A. OTTAWA 1725 (INTELLECTUAL PROPERTY ACTION PLAN) 
 
     ¶B. OTTAWA 1168 (CANADIAN REACTION TO GOC'S PROPOSED 
        COPYRIGHT LAW AMENDMENTS) 
     ¶C. OTTAWA 1571 (IPR FILESHARING APPEAL: 
        RIGHTS-HOLDERS LOST A BATTLE BUT WINNING 
        THE WAR) 
 
¶1. (SBU) Summary and Action Request: As predicted (ref Ottawa 
1725), the GOC has now tabled draft legislation amending the 
Copyright Act.  The amendments are intended to implement the 
provisions of the WIPO Copyright Treaty and the WIPO 
Performances and Phonograms Treaty; however, industry 
commentators have serious doubts about certain aspects of the 
legislative text.  Our readthrough and initial rights-holder 
feedback suggests that the legislation may provide inadequate 
protection against hackers and that Internet Service 
Providers will not be made responsible for illegal activity 
which they may make possible in their capacity as hosts since 
the legislation seems to provide for a 'notice-and-notice' 
process rather than the U.S. model of 'notice-and-takedown'. 
We have provided the text of the amendment (at www.parl.gc.ca 
then click on "bills" then "government bills" then C-60) and 
the text of the original act (at laws.justice.gc.ca/en/C-42/) 
to various USG IPR experts.  Action Request:  To make the 
case for stronger rules in areas such as Internet Service 
Provider liability, please provide a clear USG reaction to 
the draft legislation for us to use in discussion with 
stakeholders, legislators, GOC agencies and the press.  End 
Summary. 
 
Notice-and...what? 
 
¶2. (SBU)  The draft legislative text was tabled on June 20, 
and a quick review with local copyright experts produced the 
following observations.  The legislation includes a detailed 
series of requirements that rights holders must meet in order 
to inform an ISP that its users are infringing copyrights 
(including a list of information that must be provided about 
the infringers, and the statement that the rights holders may 
be required to pay a fee for the privilege of informing the 
ISP).  What the amendment does not include, however, is a 
requirement for an ISP to address this problem.  Far from 
notice-and-takedown requirements which allow rights holders 
to require the ISP to remove infringing files, the 
legislation would require only that ISPs pass on complaints 
to their clients and keep records of the complaints (a press 
release from the Entertainment Software Association of Canada 
describes this as allowing ISPs "to wink and nod at illegal 
activity".)  One industry consultant points out that the 
fines if ISPs do not comply with this notice-and-keep-records 
scheme (a maximum of $5000 for not passing on the complaint 
and a maximum of $10,000 for not keeping records) are not 
even high enough to make it worth the costs of a court case. 
This consultant also emphasized the fact that the draft 
legislation seems to put privacy rights above intellectual 
property rights, by not requiring ISPs to provide any 
information about infringers.  This is in contrast to the 
judgment in the recent appeals court case (ref Ottawa 1571) 
which affirmed that "(a)lthough privacy concerns must also be 
considered...they must yield to public concerns for the 
protection of intellectual property rights in situations 
where infringement threatens to erode those rights." 
 
But did they mean it, and did they know? 
 
¶3.  (SBU)  As in the GOC's previous statements before tabling 
the draft text, there are lingering questions about the role 
of intent as well as new questions about the role of 
knowledge in infringement.  Various sections of the draft 
include language such as providing injunctions against anyone 
who "...circumvents, removes or in any way renders 
ineffective a technological measure protecting any material 
form of the work...for the purpose of an act that is an 
infringement of the copyright..." or anyone who "...knows, or 
ought to know, that the removal or alteration will facilitate 
or conceal any infringement of the owner's copyright."  This 
question of intent was of serious concern to certain 
interlocutors when it first arose (ref Ottawa 1571), but it 
has not yet been the focus of many of the comments we have 
received from rights-holders groups.  One analyst suggests 
that the knowledge proviso may, in fact, coincide with 
similar provisions in the WIPO language itself, while another 
states that the legislation only goes "halfway" towards 
addressing Canada's international commitments, pointing out 
that "the anti-circumvention prohibitions, as drafted, make 
it a practical impossibility for law enforcement officers and 
rights holders to pursue legal action against those who 
manufacture circumvention devices."  We anticipate further 
clarification on this issue, and we welcome any insights from 
USG copyright experts. 
 
Happy to have it, if not particularly happy with it 
 
¶4.  (SBU)  Local copyright experts and stakeholders generally 
seem pleased that the GOC has finally tabled legislation, 
providing them with draft text for further analysis and 
criticism.  Most rights holders, however, are not satisfied 
with the provisions of the text in current form.  Provincial 
education authorities may call for even less-stringent rules, 
while rights-holders groups will push for strengthening of 
the provisions described in paragraphs 2 and 3. 
Additionally, with an election likely to be held after 
Parliament returns in September, there is little chance that 
this legislation will pass in 2005.  While this additional 
potential delay is frustrating for many stakeholders, certain 
interlocutors have informed us that it gives them additional 
time to work towards improvements in the text. 
 
¶5.  (SBU)  Earlier this week we sent links to the legislation 
and the Copyright Act itself (as in the Summary) to various 
USG copyright experts.  We appreciate the feedback we have 
already received and look forward to a detailed USG position 
on the draft legislation. 
 
Visit Canada's Classified Web Site at 
http://www.state.sgov.gov/p/wha/ottawa 
 
WILKINS