No One Likes a Bully: The IIPA and Canada

Despite the use of the word “International” in its name, the International Intellectual Property Alliance (IIPA) is an umbrella group comprised of 7 U.S. trade associations: the Association of American Publishers, Business Software Alliance, Entertainment Software Association (video game industry), The Independent Film & Television Alliance, The Motion Picture Association of America, National Music Publishers’ Association, and Recording Industry Association of America; it pursues a purely U.S. corporate copyright agenda.

The IIPA had a modest infancy: it arose out of early legislative efforts in the mid 1980s to condition favorable U.S. trade benefits on other countries providing U.S. works “adequate and effective” IP protection, a concept very much in the eye of the beholder. With a ramped up GSP program and then the “Special 301” revision in the 1988 Omnibus Trade and Competitiveness Act, the IIPA quickly filled a vacuum: the Office of the United States Trade Representative (charged with enforcing trade laws) needed statistics to establish which countries were naughty and which were nice. Lacking any investigative resources of its own, USTR uses figures given to it by IIPA. The figures offered up by the IIPA on projected U.S. losses from “piracy” have been criticized for being wildly inflated, speculative, and based on demonstrably false assumptions, such as every pirated copy equaling a loss of a sale (and usually at U.S. prices). But what’s wrong with fudging for a good cause? And who are pirates to complain? (It also appears that the U.S. is the nicest country of all since it never appears on its own list, while major Western and many other countries have been tarred with varying degrees of naughtiness).

It is entirely proper for U.S. industries to protect their own interests. IIPA’s website, though, shoots for a loftier goal, that of helping to create “a legal and enforcement regime for copyright that not only deters piracy, but that also fosters technological and cultural development in these countries, and encourages local investment and employment.” The last two clauses evoke a globally beneficent outlook, one reminiscent of the “a raising tide lifts all boats” bromide according to which very high levels of protection are actually good for other countries because it protects authors from those countries. The bromide is false, though, and not only because the IIPA doesn't do outreach to help local investment or employment in foreign countries: it is also false because the ill-effects of hyper-copyright are felt in the U.S., from orphan works, to oppressive remedies, and misuse of circumvention rights to squelch competition and preserve outmoded business models. It must also be pointed out that the rising tide lifts all boats approach is one the U.S. deliberately eschewed in the first 100 years of its existence, resulting in the British referring to the U.S. as the Barbary Coast of Piracy, and that the U.S. did not join the Berne Convention until the extremely late date of March 1, 1989. The U.S. conversion to international copyright is quite recent; post-conversion, we have been acting like Paul, not Saul. Other countries, especially those who have been members of the Berne Convention since the 19th century, can be excused for thinking our conversion came about not out of faith but rather out of an opportunity to force U.S. law on the rest of the world; in short, copyright imperialism.

In practice, the IIPA’s efforts have gone far beyond issues of piracy. Its annual 301 report goes into great detail about the perceived deficiencies of all stripes in foreign laws, accusations that understandably offend those countries. Nor is the IIPA content with attempting to get other countries to adopt U.S. law lock-stock-and-barrel (and regardless of vast differences among legal systems): Last year, I reported on IIPA’s efforts to stop the Israeli Knesset from adopting the U.S. fair use provision in its statute. Apparently, it is only those laws that are favorable to U.S. corporate interests that “will foster[] technological and cultural development in these countries, and encourage[] local investment and employment.”

Sometimes countries fight back (and the Israelis, Baruch HaShem, passed their fair use provision anyway). IIPA’s repeated attacks on Canadian copyright law led Ms. Nancy Segal, a senior Canadian Foreign Affairs official, to remark last year:

In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts. I also recognize that the U.S. industry likes to compare anyone they have a problem with, concerning their IPR regime, to China and the other big violators, but we're not on the same scale. This is not the same thing. If you aren't on the watch list in some way, shape, or form, you may not be of importance. Most countries with significant commercial dealings are on the watch list.

Member of Parliament Joe Comartin (Windsor—Tecumseh, NDP), then added:


My perception, and I think this is based on fairly decent material, is that if anybody was going to be on that watch list, the U.S. should put themselves on it, in the sense that they have more counterfeit material and goods going through their country, getting into their country, and manufactured in their country on a proportional basis than Canada does, by a long shot.

In reading these remarks, I remembered my seven years working on Capitol Hill, where on my daily trek up Pennsylvania Avenue to get lunch, I would pass by tables at which counterfeit DVDs were offered for sale, one block from the Capitol building itself, and right across the street from the Copyright Office. The Canadians officials quoted above were reacting, perhaps, to IIPA’s 2007 report, which began, “Canada’s long tenure on the USTR Watch List seems to have had no discernible effect on its copyright policy.” Ordinary people, when faced with such a lack of response from an immediate neighbor – in this case, a friendly, wealthy (Canada’s dollar is worth more than the U.S. dollar), high educated and networked country -- might re-evaluate an obviously failed policy, but no, IIPA’s recommendation was to throw more fuel on the fire, recommending that Canada be placed on an even naughtier list, the Priority Watch List, a recommendation repeated in the 2008 report, and to upbraid the Canadians for allegedly having a copyright law fit for Pirate Bay, not Thunder Bay.

So what are the IIPA’s beefs? The principal ones ostensibly concern Canada’s failure to implement the 1996 WIPO treaties. Examination of the IIPA’s 301 reports reveals, though, that what it has in mind is simply adoption of U.S. law, not amendments to Canada law that are consistent with the treaties obligations. The WIPO treaties modestly require only remedies for circumvention of Technological Protection Measures (TPMs) that involve the exercise of exclusive rights. Although the U.S. attempted to have the treaties include remedies for circumvention of access controls, other countries rejected the U.S.’s efforts. One would never know this from the IIPA’s reports, which mix the two together and lead readers to believe both are required; they are not.

Even more, the IIPA has stated (2004 report), “The WIPO digital treaties provide the principal legal tools required to fight piracy.” No evidence to support this assertion is presented, and the assertion is absurd: piracy (even as IIPA defines it), has existed for millennia, and the tools used to combat it have been traditional copyright rights and remedies. On this (and many other scores), Canada’s law is exemplary. I have not seen any proof that the U.S. TPM laws have led to a decrease in piracy within the U.S.; to the contrary, U.S. corporate interests constantly complain before Congress about the exponential increase of piracy, a “pandemic” that can only be cured by ever stronger laws. If we take content owners at their word, TPMs have been remarkably ineffectual, and therefore not something we would want to stuff down other countries’ throats. Indeed, in a stunning mea culpa not lost on Canadians, last year former U.S. Commissioner of Patent Bruce Lehman, the architect of the DMCA and of the U.S. negotiations at the WIPO treaties, stated during a symposium in Montreal that the DMCA had been a failure due – to copyright owners’ actions. See here.

The actual purpose of TPMS has nothing to do with piracy, and is stated in the concluding sentence to the one I quoted above from the IIPA’s Section 301 report: “Electronic commerce in copyrighted content requires a working digital marketplace in which only legitimate copies of works are transmitted, and only under the terms negotiated or permitted by the rights owner.” In other words, TPMs are all about preserving business models, not about piracy. In the United States, we have been waiting since 1998 for a working digital marketplace, after granting to IIPA’s members extensive rights in the DMCA on the promise that once the laws were in place, copyright owners would create the market. They haven’t: we are still nowhere close to even a nascent digital marketplace, much less a working one. But why not, since the laws are in place? The answer is content owners already have what they wanted, which is control over whether a legitimate marketplace will ever exist; but if it does, it will certainly be on their terms as IIPA clearly indicates. The purpose of the DMCA from their perspective was not to facilitate the actual development of a digital marketplace, but to give them veto power over whether one would ever exist, and if so, what it would look like. That’s why the DMCA represented a fatal blow to copyright as a system: rather than adapting copyright rights to the digital environment, the DMCA gave copyright owners the right to control the environment itself, with consequences that were entirely predictable given the past track record of the industry’s suits against innovations from talkies, to cable television, photocopy machines, and VCRs.

Lacking an authorized marketplace due solely to content owners’ failure to create one, it is hardly surprisingly that unauthorized ones grew up. Content owners response was not to provide consumers with what they wanted, but to declare war. Even Edgar Bronfman Jr., honcho of Warner Music, admitted this was a huge mistake, and it is the unwillingness of copyright owners to provide a legitimate market that led Bruce Lehman to publicly declare his own handiwork had failed. The idea that adherence to the WIPO treaties and a verbatim adoption of U.S. law is both necessary and sufficient to create a legitimate market and fight piracy has thus been roundly rejected by both Mr. Bronfman and Mr. Lehman, yet the IIPA continues to argue it to USTR and to the Canadian government.

The IIPA 301 report also insists on Canada adopting the U.S. notice and takedown safe harbor approach found in Section 512, but the IIPA doesn’t reveal that the WIPO treaties have nothing to do with ISP safe harbors. Indeed, it was content owners’ refusal to incorporate safe harbors into the DMCA that held up that legislation for three years, from 1995 to 1998. Content owners argued then that the WIPO treaties had nothing to do with ISP safe harbors. What a difference a few years makes.

The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the
WIPO treaties is a mystery.