The state of IP multilateralism

Michael Geist reports that Canada will sign has signed the new Anti-Counterfeiting Trade Agreement (ACTA), possibly this weekend. However, the word is that ACTA may be short on signatures and may never come into force.

The possibility that ACTA would not come into force is one of several possibilities that I mentioned in my paper "WIPO and the ACTA Threat", forthcoming with the International Journal of Technology Policy and Law and published in a previous working-paper version in the PIJIP Working Paper Series.

If the agreement does fail to come into force, it would be more good news for the World Intellectual Property Organization. ACTA was a treaty negotiated outside of a true multilateral framework - an agreement made behind closed doors on an invitation-only basis. WIPO's Director General has called ACTA "a bad development" for WIPO and broader multilateral processes, a response to multilateral institutions' weakness and recnet inability to conclude broad-based treaties. IP-Watch reports progress in the recent negotation of a new audiovisual treaty, calling this 'a boost' to the multilateral intellectual property system. Another agreement for visually impaired also seems to be progressing well.

A boost for WIPO is relatively good news for weaker parties who had no voice in the development of ACTA but who do have some voice at WIPO.

Update: IP-Watch has an interesting article on where WIPO stands on its enforcement activities.

WIPO and the ACTA Threat

My paper, WIPO and the ACTA Threat, has been published in the Program on Information Justice and Intellectual Property at the Washington College of Law. Please send any comments to sara.bannerman@gmail.com.

Abstract
The new Anti-Counterfeiting Trade Agreement (ACTA) has been seen as a potentially existential threat to the existing World Intellectual Property Organization (WIPO) – as a new plurilateral institution that could replace the older multilateral organization. The ACTA threat to WIPO has a number of predecessors. WIPO’s centrality to international intellectual property norm-setting encountered its first major challenge in 1952 when the Universal Copyright Convention was established under UNESCO. It encountered a second major challenge with the establishment of the Agreement on Trade-Related Aspects of Intellectual Property (the TRIPs Agreement). The ACTA challenge thus potentially represents a third instance where a major competing norm-setting institution has challenged WIPO. In this paper I review past instances where WIPO has been challenged by an outside norm-setting institution and the responses taken to those challenges. Second, I outline the main proposals for an ACTA institution. Third, drawing on the past instances, I outline the various possible forms that an ACTA-WIPO relationship could take, and various strategies that WIPO could use to maintain its role in the international intellectual property system. Finally, I outline a number of public policy concerns that the institutional proposals for ACTA pose.

ACTA won't replace WIPO

Michael Geist has a very interesting post about the possibility of ACTA replacing WIPO, replicating certain WIPO functions, and slowing or undermining the WIPO Development Agenda. Although ACTA could certainly become the centre of action in IP treaty-making and may take on some functions that are similar to what WIPO now does, I don't believe it will replace WIPO or undermine the Development Agenda. Here's why:

1. WIPO has historically been faced on various occasions with outside IP treaty-making organizations. In 1952 it faced the competing Universal Copyright Convention, and in the 1990s it faced the World Trade Organization's TRIPs Agreement. In both cases, it came to arrangements with the external organizations that secured its own role and made the treaty-making processes compatible between the two organizations. Although WIPO's ability to conclude treaties may be somewhat weakened by these outsiders, WIPO remains a strong and growing international organization whose expertise and capacity to work on IP issues is unrivaled by any other.
2. It seems as though the ACTA secretariat, as proposed, would be institutionally very small compared to WIPO.
   
3. The possibility remains that the ACTA secretariat will actually be housed at WIPO.
4. The Development Agenda is not working at cross-purposes with ACTA. The Development Agenda has morphed into a set of thematic projects that pose very little threat to the interests of developed countries. Some are, indeed, just what developed countries have been asking for. Projects will provide all kinds of resources to IP offices and infrastructure in developing and least developed countries, will put in place seminars and training programs - even regional IP academies, and create opportunities for IP organizations worldwide to partner with IP organizations in developing countries. It's not inconceivable that the Development Agenda projects could be used to eventually help bring developing countries on board with ACTA.
   

Canadian implementation of copyright treaties

I posted recently on the possibility that ACTA could prolong the process of Canadian copyright reform, and about the average period of time, historically, that it has taken to reform Canadian copyright law. If we look at specific examples of efforts, on the part of Canada, to implement international copyright treaties, there are a few examples:

The Berne Convention, first implementation: 38 years
Canada was signed on to the original Berne Convention, which is still the cornerstone international copyright treaty today, by the British in 1886. However, it took Canada 38 years to implement the Berne Convention. After being brought on board by the British Imperial government, Canada decided the Berne Convention didn't fit in the North American context. It was viewed as a European treaty; the Americans weren't part of it. It therefore wasn't until 1924 that Canada finally implemented what by then was the 1908 revision of the Berne Convention.

The 1928 revision of the Berne Convention: 3 years.
Canada implemented the 1928 revision of the Berne Convention in short order, in 1931, granting moral rights and broadcast rights in copyright works.

The 1952 Universal Copyright Convention: 10 years.
Canada took 10 years to ratify the Universal Copyright Convention, which it did in 1962. It took 10 years because Canada couldn't decide whether or how to change Canadian law in order to implement the convention. After waffling about for 10 years on a possible copyright overhaul, Canada decided that no change to the actual law was necessary in order to meet the standards of the UCC, so that made the process, in the end, relatively quick.

The 1971 Revision of the Berne Convention: 22 years.
Canada implemented the 1971 (current) revision of the Berne Convention (which it had not originally signed) in 1993 in order to comply with NAFTA. Canada then formally acceded to the convention in 1998.

On average, that's 18 years. Implementation takes place more quickly if either no reform to domestic law is required or if the changes required are relatively uncontroversial. If however, the changes required are controversial, or if a significant overhaul of the copyright act is contemplated - as in the current case of contemplated copyright reform - implementation in Canada can take much longer.

Average length of copyright reform

I noted recently that ACTA could actually slow down copyright reform in Canada. That made me wonder, how long does copyright reform in Canada take, on average?

Reform 1: 36 years . Canada's first copyright act was put in place in 1868, just after Confederation. Attempted overhauls began with bills introduced in 1888 and 1889, but these failed or were blocked by the British. Only minor revisions were made until a completely new act came into effect in 1924.

Reform 2: 34 years. Canada began to contemplate copyright reform again in 1954, when it created a Royal Commission to investigate copyright and other forms of intellectual property. This was followed by a major study by the Economic Council of Canada that came out in 1971. All of this studying didn't amount to a major copyright reform until another round of consultations that culminated in the reform of 1988.

Reform 3: 9 years. The next phase of Canadian copyright reform took place in record time, and was done in 1997.

On average, that's 26 years.

Reform 4: 13 years and counting. If history is any guide, Canadians should be expecting a new copyright act somewhere around 2023.

ACTA & Copyright Reform

While Canadian delegations work with other countries to negotiate ACTA, Canadians await the next round of attempted copyright reform. The last two copyright bills, C-60 and C-61 died with changes of government. While parts of the first Liberal bill was seen to some extent to be acceptable, elements of the Conservative C-61 bill were fiercely opposed.

From recent reports it seems as though ACTA would block Canada into a corner on certain aspects of copyright reform, undermining the Canadian notice-and-notice regime for ISP liability and Canadian proposals for DRM circumvention laws, for example.

What will be the effect of ACTA on Canadian copyright reform?

The effect of ACTA on Canadian copyright reform depends on how the negotiations go. The goal of the Canadian delegation negotiating ACTA will likely be to preserve policy space for Canadian copyright lawmaking, and to negotiate an ACTA that will enable a Canadian copyright bill that is acceptable to Canadians and passable in Canadian Parliament. If the delegation succeeds, and a flexible ACTA that Canadians are comfortable with is the outcome, then we have little to worry about. This, for the moment, seems unlikely.

If the delegation does not succeed, and the ACTA that is finally agreed by negotiating parties contains elements that seem unsavory from the Canadian perspective or that would cut off policy options that the Canadian government wants to preserve, then Canada has the option to refrain from signing the treaty. This has happened in the past. When the 1967 revision of the Berne Convention was signed, Canada was in the middle of a copyright policy overhaul. Because of this, after participating in the negotiations, Canada did not sign the revision, which never came into effect anyway. Similarly, Canada negotiated actively but did not sign the 1971 revision of the Berne Convention - which remains the current revision of the treaty - , and avoided acceding to that revision of the convention until 1998. Canada also negotiated actively but did not sign the 1971 revision of the Universal Copyright Convention. Again, this was due to the desire, on the part of the Canadian government, to allow Canadian policy options to remain open for the domestic decision-making process to take place.

If Canada signs an ACTA that contains controversial elements from the Canadian perspective, things could go one of two ways. Policymakers and interest groups may accept that the field of policy options has narrowed, that Canada has committed to certain policies, the debate around copyright reform may be encompassed within new terms, and several options that were once controversial will have been pre-decided via the international process. Effectively, domestic policy-making procedures will have been circumvented, and any new Canadian copyright act will fall within the parameters set by ACTA, perhaps passing more easily because some of the controversial elements have been taken out of the debate.

Alternately, copyright reform could become even more difficult. Those groups who are in favour of the policy options contained within ACTA will have a stronger argument as to why Canada should include those elements in any new act, while opponents will criticize the government for having short-circuited the domestic process. They will argue that Canada should not implement ACTA. At the same time, the Canadian government will be under more pressure from other parties to the ACTA to implement. This situation could lead to an even longer period of indecision and difficulty in Canadian copyright reform.

update: see Blayne Haggart's post on this same topic
update 2: see Blayne Haggart's post on how ACTA could slow copyright reform in Mexico

What ACTA means for Canada: Fewer

David Fewer writes a guest post for the Electronic Frontier Foundation on "What ACTA means for Canadians." According to him, there are concerns "with ACTA’s potential to undermine Canadian sovereignty over domestic intellectual property policy and the Canadian values they express."

He notes that ACTA is a threat to Canadian policy solutions that include the Canadian notice-and-notice regime for ISP liability and Canadian proposals for DRM circumvention laws. He concludes,

Both ACTA and the Canada-EU trade discussions threaten to displace domestic control over IP policy. While it might be said that it is better for Canadian negotiators to be at the table influencing developments than left on the outside looking in (like the rest of us), it might be better for Canada to walk away from the entire process. Participation merely threatens to lend the process a legitimacy that, from Canadian eyes, it currently lacks.

ACTA: walk away or get on board?

On November 5th Michael Geist spoke at the American University in Washington about the ACTA. His presentation was part of a panel called "Strengthening IP Enforcement Through TRIPS and Other Multilateral Initiatives", with Daniel Gervais and Peter Yu and moderated by Padideh Ala'i (Webcast here).

Geist predicted that by 2010 ACTA will be fully drafted, that by 2011 it will be publicly disclosed, and that by 2012 efforts will have begun to expand the circle of countries to which ACTA applies. Countries excluded from ACTA will be presented with a fait accompli. They will have had no influence on the ACTA text. Nevertheless, they will eventually be asked to sign the document. Geist argues that, therefore, excluded countries should be banging down the door of ACTA, saying they want input now.

The question I raised at the discussion was whether, if more countries get on board with ACTA, it will not simply lend more legitimacy to the process taking place, and increase pressure on participants eventually to implement the agreement. In response, Geist argued that, on balance, the risks of not getting involved are too big.

In my historical research on Canadian international copyright I have seen the argument made on numerous occasions that Canada should participate in this or that international negotiation in order to be able to have some influence. This argument is made even in negotiations that are heading generally away from the direction in which Canada wants to go. It also seems to me that the influence ascertained through this method has been, on the whole, negligible. Also, once a country participates in and signs an agreement, the argument is then made (as with the WIPO Internet treaties) that the country therefore has some obligation to implement the agreement.

Nevertheless, Geist may be right.

Non-participation: considerations

• With fewer participants, the ACTA could come to be seen as a regional or rich-country norm, rather than an agreement that all countries would eventually sign. However, there are not many examples of IP treaties that are seen as regional today; most are successfully globalized. At the same time, the WIPO Internet treaties are still adopted only by about 70 countries, less than half the membership of the Berne Convention; global adoption of any new treaty is not guaranteed.
  
• If countries do not participate in ACTA's negotiation, they can later argue that they don't wish to implement an agreement that they had no say in. It seems likely that trade pressure would overcome this objection.
  
• Countries that do not participate now could demand revision of the treaty at a later time as a condition of their joining. Canada successfully demanded revision of (via a protocol to) the Berne Convention in 1914 as a condition of its implementation of Berne, and the US was highly influential in revisions of Berne as an outsider, when members tried to accommodate US demands in an effort to (unsuccessfully until 1989) draw the US in.
• Howard Knopf argues that Canada should be prepared to walk away from the treaty, and that if Canada continues to participate "the minimum price for so doing should be complete transparency and immediate publication of all draft texts, as has been the normal practice at the GATT, WTO, WIPO and elsewhere for decades."
  

Participation: considerations

• The participation of Canada or other countries could have a beneficial impact on the treaty; for example, room for Canada's proposal of a notice-and-notice system could be brought into the treaty.
• Like-minded countries could group together to have some influence on the treaty, mitigating its most unpalatable aspects
  

Not signing: considerations

• Blayne Haggart, in a recent blog post about ACTA, points out that the French government killed the MAI by walking away from it. That doesn't mean that would happen here, he notes; a smaller group of countries could carry ACTA forward even if some parties walk away.
• Countries could participate in the negotiation of ACTA but, in the end, refuse to sign the document. This would allow the country to have some influence throughout the negotiations and, if the ACTA remains unsatisfactory, to make a statement in this regard while also making it clear that, in the end, the country did not intend to implement the agreement. This was the strategy taken by the United States throughout the history of its refusal to sign the Berne Convention.