Canadian copyright: Room to maneuver?

As I mentioned in my previous post, on Thursday I presented a paper – essentially my dissertation’s argument compressed into 25 pages – at the Canadian Political Science Association's annual conference. Great, insightful comments from our discussant, York University Professor Ricardo Grinspun. I was especially gratified by the interest in my paper from the audience. I still remember getting only one pity question (about Radiohead’s pay-what-you-want In Rainbows experiment) at my first-every conference presentation, three or four years ago to the Association for Canadian Studies in the United States. The lack of questions, I think, said more about my unfocused paper (one of my professors at Carleton believes that PhD students shouldn’t present anything until the end of their dissertation, and it’s not too hard to see why), but even negative feedback is better than indifference.

Prof. Grinspun’s main comment about my paper was about my conclusion – that Canada, Mexico and the U.S. retain significant policy autonomy with respect to copyright policy. Typically, the U.S. offers countries better access to its market in exchange for those countries implementing U.S.-style copyright reforms. Thing is, the NAFTA already guarantees Canada and Mexico this access. As a result, it’s harder for the U.S. to link copyright reform to anything, and so domestic factors become relatively more important than global or regional factors.

Grinspun correctly pointed out that regardless of this domestic autonomy, the reality is that the United States has defined (through its influence on the WIPO treaty process) the parameters of what we think of as digital-copyright reform (e.g., to include legal protection for digital locks and making available provisions). He suggested (and I’m paraphrasing quite a lot here) that the evidence seems to indicate that Canada and Mexico are moving toward a U.S.-style copyright regime, only at different speeds.

Certainly, Bill C-32, as it stands, gives the U.S. and the content industries pretty much everything they were looking for with respect to to the legal protection of technological protection measures (TPMs), although, interestingly, there is no “notice-and-takedown” regime for ISP liability in the bill. I think my response to Prof. Grinspun’s comments would emphasize the process, not the outcome. There is certainly a push toward U.S.-style copyright policy, from the U.S. itself as well as the content industries more generally. But there is no one-way street toward harmonization. Canada and Mexico have a choice in the matter.

If I had to boil down the paper to three points, it would be these:

1. The United States has set the parameters of what is considered to be legitimate debate when we talk about copyright reform. That was the point of the WIPO Internet treaties.
2. But: In the absence of strong regional governance of copyright and the ability of the United States to credibly link copyright reform with something the other two countries want*, Canada and Mexico retain significant policy autonomy. Whether they choose to exercise it is, of course, another question.
3. The decision to follow the U.S. lead or not is influenced significantly by domestic factors.

In Mexico, there will be a tendency to follow the U.S. on TPM protection because of the lack of strong civil-society involvement in digital-copyright issues, combined with the traditional Mexican view of copyright as a protection of authors to be maximized (user rights are very underdeveloped in Mexico).

In Canada, if my reading of the situation is correct, Bill C-61’s DMCA-like TPM provisions was at least partly the result of a political calculation that the United States need to be (or should be) satisfied by Canadian actions on this issue. In 2005, with Bill C-60, the Liberal government came to a different conclusion. (Domestic factors also matter here, as well: Bill C-32 wasn’t unveiled in the Montreal offices of U.S. multinational Electronic Arts for nothing: this bill is a huge win for the video-game industry.)

So, what does this mean for the debate over Bill C-32? First, it would be kind of silly to argue that the United States has had nothing to do with the TPM provisions in C-32; I hope nobody does. But (and I don’t think I’m talking semantics here) more important is the government perception of what the bill means for Canada-U.S. relations, and for specific sectors of Canadian industry.

Second, and related to the first point, Canadian governments have a lot of room to maneuver on the issue of TPMs, should they choose to use it. And there's room for lots of legitimate policy disagreement on whether or not Canada should have followed the U.S. lead on this issue.

* The U.S. isn't the only country that plays the copyright linkage game: In the ongoing Canada-EU trade negotiations, the EU is pushing for Canada to reform its copyright laws to make them more to the EU's liking; they seem to be quite happy with C-32. As always, the most effective pressure for Canadian copyright reform comes from abroad.