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How Canada Shaped the Copyright Rules in the EU Trade Deal

Michael Geist - Thu, 08/21/2014 - 06:33

In late December 2009, Wikileaks, the website that publishes secret government information, posted a copy of the draft intellectual property chapter of the Canada – European Trade Agreement (CETA). The CETA deal was still years from completion, but the leaked document revealed that the European Union envisioned using the agreement to mandate a massive overhaul of Canadian law.

The leak generated concern among many copyright watchers, but when a German television station leaked the final text of the agreement last week, it contained rules that largely reflect a “made-in-Canada” approach. Why the near-complete reversal in approach on one of the most contentious aspects of a 500 page treaty?

My weekly technology law column (Toronto Star version, homepage version) notes the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.

The next leaked text did not surface until 2012. By then, Canada had tabled its own copyright reform bill that featured a wide range of Canadian-specific policies, including a “notice-and-notice” system for Internet providers that did not result in takedowns without court oversight, new flexibilities for consumer uses of copyright works, and limits on damages for non-commercial infringement.

The 2012 leaked text suggests that the Canadian reforms had an impact on the negotiations. Requirements to extend the term of copyright or create new rights for broadcasters and visual artists were removed from the draft text. Moreover, the digital lock rules and Internet service provider liability provisions were substantially re-written to better reflect the Canadian approach.

The 2012 text also included detailed criminal liability provisions modeled after the Anti-Counterfeiting Trade Agreement, which was concluded in 2011. After continent-wide protests against ACTA, the European Parliament rejected the agreement in July 2012 and the criminal liability provisions were subsequently removed from CETA.

The final leaked text completed the Canadian transformation of the copyright rules. The major European copyright demands were ultimately dropped and remaining issues were crafted in a manner consistent with Canadian law.

Negotiations take place behind closed doors, but there are appear to be at least four reasons for the about-face on copyright.

First, the domestic policy situation in both Canada and the EU surely had a significant impact as ACTA protests in Europe and consumer interest in copyright in Canada led to the elimination of the criminal provisions and the adoption of better-balanced, consumer-oriented rules.

Second, while there is much bluster about “strong” European rules or “weak” Canadian laws, the reality is that both are compliant with international standards that offer considerable flexibility in implementation. Beyond the rhetoric, the made-in-Canada approach offers many countries a better alternative than restrictive proposals that do little to benefit domestic creators or consumers.

Third, the “made-in-Canada” approach is gradually garnering increased attention around the world as a creative, viable alternative. Neelie Kroes, the Vice-President of the European Commission, cited the Canadian law with admiration in a speech in early July, while other countries have been considering adopting the Canadian model on issues such as Internet provider liability or the creation of user-generated content.

Four, when the European Union was pressed to prioritize its top intellectual property issues during the negotiations, copyright ultimately took a back seat to pharmaceutical patents and protection for geographical indications.

While there remain reasons to criticize CETA – Canada caved on its concern regarding pharmaceutical patent lawsuits that could potentially lead to claims with billions at stake – the copyright provisions are not among them. The text represents a win for Canada that reflects a more flexible alternative for countries negotiating copyright rules in their free trade agreements.

The post How Canada Shaped the Copyright Rules in the EU Trade Deal appeared first on Michael Geist.

How Canada Shaped the Copyright Rules in the EU Trade Deal

Michael Geist - Thu, 08/21/2014 - 06:31

Appeared in the Toronto Star on August 16, 2014 as How Canada Shaped Copyright Rules in EU Trade Deal

In late December 2009, Wikileaks, the website that publishes secret government information, posted a copy of the draft intellectual property chapter of the Canada – European Trade Agreement (CETA). The CETA deal was still years from completion, but the leaked document revealed that the European Union envisioned using the agreement to mandate a massive overhaul of Canadian law.

The leak generated concern among many copyright watchers, but when a German television station leaked the final text of the agreement last week, it contained rules that largely reflect a “made-in-Canada” approach. Why the near-complete reversal in approach on one of the most contentious aspects of a 500 page treaty?

The starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.

The next leaked text did not surface until 2012. By then, Canada had tabled its own copyright reform bill that featured a wide range of Canadian-specific policies, including a “notice-and-notice” system for Internet providers that did not result in takedowns without court oversight, new flexibilities for consumer uses of copyright works, and limits on damages for non-commercial infringement.

The 2012 leaked text suggests that the Canadian reforms had an impact on the negotiations. Requirements to extend the term of copyright or create new rights for broadcasters and visual artists were removed from the draft text. Moreover, the digital lock rules and Internet service provider liability provisions were substantially re-written to better reflect the Canadian approach.

The 2012 text also included detailed criminal liability provisions modeled after the Anti-Counterfeiting Trade Agreement, which was concluded in 2011. After continent-wide protests against ACTA, the European Parliament rejected the agreement in July 2012 and the criminal liability provisions were subsequently removed from CETA.

The final leaked text completed the Canadian transformation of the copyright rules. The major European copyright demands were ultimately dropped and remaining issues were crafted in a manner consistent with Canadian law.

Negotiations take place behind closed doors, but there are appear to be at least four reasons for the about-face on copyright.

First, the domestic policy situation in both Canada and the EU surely had a significant impact as ACTA protests in Europe and consumer interest in copyright in Canada led to the elimination of the criminal provisions and the adoption of better-balanced, consumer-oriented rules.

Second, while there is much bluster about “strong” European rules or “weak” Canadian laws, the reality is that both are compliant with international standards that offer considerable flexibility in implementation. Beyond the rhetoric, the made-in-Canada approach offers many countries a better alternative than restrictive proposals that do little to benefit domestic creators or consumers.

Third, the “made-in-Canada” approach is gradually garnering increased attention around the world as a creative, viable alternative. Neelie Kroes, the Vice-President of the European Commission, cited the Canadian law with admiration in a speech in early July, while other countries have been considering adopting the Canadian model on issues such as Internet provider liability or the creation of user-generated content.

Four, when the European Union was pressed to prioritize its top intellectual property issues during the negotiations, copyright ultimately took a back seat to pharmaceutical patents and protection for geographical indications.

While there remain reasons to criticize CETA – Canada caved on its concern regarding pharmaceutical patent lawsuits that could potentially lead to claims with billions at stake – the copyright provisions are not among them. The text represents a win for Canada that reflects a more flexible alternative for countries negotiating copyright rules in their free trade agreements.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post How Canada Shaped the Copyright Rules in the EU Trade Deal appeared first on Michael Geist.

Does Anyone Own a Country’s Domain Name?

Michael Geist - Tue, 08/12/2014 - 07:26

Earlier this year, a group of U.S. litigants launched an unusual domain name lawsuit. The group consisted of family members of victims of terror attacks they claim were sponsored by the governments of Iran, Syria, and North Korea. The group had succeeded in winning over a billion dollars in damages in several lawsuits filed in U.S. courts.

Unable to collect, they sued the Internet Corporation for Assigned Names and Numbers (ICANN), the body that administers the Internet’s domain name system. Their goal: seize the dot-ir, dot-sy, and dot-kp domain name extensions (the respective country-code domains) by ordering ICANN to transfer them as compensation.

My weekly technology law column (Toronto Star version, homepage version) notes the notion of seizing a country’s domain name extension may sound implausible, but the case is proceeding through the U.S. court system with ICANN filing a brief late last month. ICANN is unsurprisingly seeking to dismiss the case, arguing that the domain name extensions are not property that is capable of seizure (I am a board member of the Canadian Internet Registration Authority, Canada’s dot-ca administrator, but this article represents my own views and not those of CIRA).

While there is much to be said for dismissing the case – seizing a country’s domain name extension should not be decided by private litigation in U.S. courts – the problem is that many of ICANN’s arguments are undermined by government actions over the past decade. ICANN relies on three key claims: domain names are not property, governments do not “own” their country-code domain, and the U.S. does not have jurisdiction over a foreign country-code domain.  Each claim suffers from some shortcomings.

First, the legal status of a country-code domain name extension is unclear. It is not property in the physical sense and within the ICANN world it amounts to little more than an entry in a database that links the extension to the entity responsible for administering it.

However, the U.S. has enacted legislation that effectively characterizes domain names as property for intellectual property purposes. For example, the U.S. Department of Homeland Security regularly seizes domain names as part of crackdowns against online copyright infringement. Further, in 1999, the U.S. passed the Anti-Cybersquatting Consumer Protection Act, which allows trademark owners to treat domain names as property for the purposes of lawsuits against out-of-country domain name registrants.

Moreover, other countries have treated their country-code domain name extensions as the equivalent of property when they lease it to foreign companies to operate the extension. Prominent examples include dot-nu, the country-code for the Pacific island of Niue, which granted the rights to operate the name to a private company that marketed it as a generic domain.

Second, ICANN argues that “country-code top-level domains are not owned by the countries to which they are assigned.” However, its own Governmental Advisory Committee says that “governments or public authorities maintain ultimate policy authority over their respective ccTLDs and should ensure that they are operated in conformity with domestic public policy objectives, laws and regulations, and international law and applicable international conventions.”

Moreover, countries frequently refer to their domestic country-code domains as national resources and many retain the legal right to determine who administers it. In Canada, before CIRA became the administrator of the dot-ca in 2000, the Canadian government wrote to ICANN to confirm its approval of the transfer.

Third, the issue of U.S. jurisdiction over the entire domain name system remains a contentious political and policy issue. The U.S. government currently maintains ultimate contractual authority over the transfer of a country-code top-level domain (though that may change in the future) and at least one case involving dot-cg (Congo’s ccTLD) found that the country-code could be viewed as located in the U.S.

While countries are adopting a wait-and-see approach with respect to this lawsuit, the case could have a significant impact on global Internet governance while also answering the question of who – if anyone – owns a country’s top-level domain.

The post Does Anyone Own a Country’s Domain Name? appeared first on Michael Geist.

Does Anyone Own a Country’s Domain Name?

Michael Geist - Tue, 08/12/2014 - 07:21

Appeared in the Toronto Star on August 9, 2014 as Can Anyone Own a National Domain Name?

Earlier this year, a group of U.S. litigants launched an unusual domain name lawsuit. The group consisted of family members of victims of terror attacks they claim were sponsored by the governments of Iran, Syria, and North Korea. The group had succeeded in winning over a billion dollars in damages in several lawsuits filed in U.S. courts.

Unable to collect, they sued the Internet Corporation for Assigned Names and Numbers (ICANN), the body that administers the Internet’s domain name system. Their goal: seize the dot-ir, dot-sy, and dot-kp domain name extensions (the respective country-code domains) by ordering ICANN to transfer them as compensation.

The notion of seizing a country’s domain name extension may sound implausible, but the case is proceeding through the U.S. court system with ICANN filing a brief late last month. ICANN is unsurprisingly seeking to dismiss the case, arguing that the domain name extensions are not property that is capable of seizure (I am a board member of the Canadian Internet Registration Authority, Canada’s dot-ca administrator, but this article represents my own views and not those of CIRA).

While there is much to be said for dismissing the case – seizing a country’s domain name extension should not be decided by private litigation in U.S. courts – the problem is that many of ICANN’s arguments are undermined by government actions over the past decade. ICANN relies on three key claims: domain names are not property, governments do not “own” their country-code domain, and the U.S. does not have jurisdiction over a foreign country-code domain.  Each claim suffers from some shortcomings.

First, the legal status of a country-code domain name extension is unclear. It is not property in the physical sense and within the ICANN world it amounts to little more than an entry in a database that links the extension to the entity responsible for administering it.

However, the U.S. has enacted legislation that effectively characterizes domain names as property for intellectual property purposes. For example, the U.S. Department of Homeland Security regularly seizes domain names as part of crackdowns against online copyright infringement. Further, in 1999, the U.S. passed the Anti-Cybersquatting Consumer Protection Act, which allows trademark owners to treat domain names as property for the purposes of lawsuits against out-of-country domain name registrants.

Moreover, other countries have treated their country-code domain name extensions as the equivalent of property when they lease it to foreign companies to operate the extension. Prominent examples include dot-nu, the country-code for the Pacific island of Niue, which granted the rights to operate the name to a private company that marketed it as a generic domain.

Second, ICANN argues that “country-code top-level domains are not owned by the countries to which they are assigned.” However, its own Governmental Advisory Committee says that “governments or public authorities maintain ultimate policy authority over their respective ccTLDs and should ensure that they are operated in conformity with domestic public policy objectives, laws and regulations, and international law and applicable international conventions.”

Moreover, countries frequently refer to their domestic country-code domains as national resources and many retain the legal right to determine who administers it. In Canada, before CIRA became the administrator of the dot-ca in 2000, the Canadian government wrote to ICANN to confirm its approval of the transfer.

Third, the issue of U.S. jurisdiction over the entire domain name system remains a contentious political and policy issue. The U.S. government currently maintains ultimate contractual authority over the transfer of a country-code top-level domain (though that may change in the future) and at least one case involving dot-cg (Congo’s ccTLD) found that the country-code could be viewed as located in the U.S.

While countries are adopting a wait-and-see approach with respect to this lawsuit, the case could have a significant impact on global Internet governance while also answering the question of who – if anyone – owns a country’s top-level domain.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Does Anyone Own a Country’s Domain Name? appeared first on Michael Geist.

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