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The Wikileaks Copyright Cables: Confirmations Not Revelations

From the Ludwig von Mises Institute Canada:

The Wikileaks Copyright Cables: Confirmations Not Revelations

LvMIC : Monday, December 6th, 2010 by Michael Geist posted in Intellectual Property, Politics.

Last weekend, I posted that I suspected the KIPR tag on U.S. diplomatic cables being released by Wikileaks represented cables involving intellectual property issues.  Sure enough, the first batch of KIPR cables have been released in Spain, confirming U.S. pressure on that country to reform its copyright laws.  The release – which come from El Pais – has generated considerable commentary with BoingBoing proclaiming that it reveals that the U.S. wrote Spain’s proposed copyright law.  That headline led others to speculate what the remaining KIPR cables might reveal, particularly the 65 Canadian ones (there are also 84 WIPO tagged cables and nearly 2,500 KIPR tagged cables overall).  There has been one releaseon copyright law in France, with officials discussing U.S. industry support for its three-strikes approach.

While I am very interested in seeing the Canadian KIPR cables, I’d be surprised if the cables reveal anything new.  The fact that the U.S. is actively lobbying in foreign countries on intellectual property issues (particularly copyright) is not a secret, it’s a open strategy.  The cables don’t really show that the U.S. wrote Spain’s copyright law, because they didn’t Wikileaksneed to.  Years of relentless lobbying pressure at the highest levels of government make it as clear as possible what the U.S. is looking for (plus they release the annual Special 301 report just in case anyone is still confused) so that when a government decides to reform its laws it invariably takes the U.S. position into account.

The U.S. lobbying and political pressure approach is pretty transparent and now confirmed by the cables.  In the case of Spain, they show a detailed strategy document with short, medium and long term goals, meetings (12) between the U.S. Ambassador and Spanish politicians on the need to do more on copyright, joint meetings with industry lobbyists, U.S. officials, and government officials, updates on the political pressure against U.S. supported copyright reforms, recommendations on whether to escalate pressure on Spain through the Special 301 list (12), joint projects with rights holder groups, and opportunities for rights holders to speak and influence opinion.

If this sounds familiar, it is because precisely the same trends and activities have been unfolding  in Canada for years.  In addition to the ACTA file, in 2010:

  • MPs from all opposition parties noted the influence of the U.S. on Bill C-32
  • CRIA traveled to Washington to lobby for increased pressure on Canadian copyright
  • An academic paper quoted a former government chief of staff as stating that the PMO required the U.S. to be satisfied with any copyright reform package
  • meetings with U.S. officials were held throughout the spring in advance of Bill C-32
  • the U.S. placed Canada on its Priority Watch List over it copyright law, despite many U.S. companies arguing against it
  • the U.S. Ambassador to Canada (a former IP lawyer), denied reports linking copyright reform to “Buy American” provisions, but noted that the U.S. will continue to press Canada on the issue

This is fairly typical.  In 2009:

  • Lobbyists on both sides of the border held public events in Canada and the U.S. criticizing Canadian copyright law
  • the Entertainment Software Association suggested using ACTA to force Canadian copyright reform
  • the Conference Board of Canada published its plagiarized reports on copyright that recommended U.S. style reforms.  The reports were funded by some U.S. groups and copied materials from the U.S. IIPA
  • the U.S. Congressional International Anti-Piracy Caucus placedCanada on a watch list
  • the USTR placed Canada on the Special 301 Priority Watch List
  • then Trade Minister Stockwell Day was lobbied on copyright on a visit to Washington
  • Vice-President Joe Biden criticized Canadian copyright at an MPAA dinner

I could go year-by-year with the similar stories – a U.S. Consul-Generalclaiming had that Canada has the weakest copyright laws in the G-8 (including Russia) in 2008, CRIA meeting with Canadian Ambassador to the U.S. Michael Wilson in Washington and huge U.S. pressure on Canada at the SPP meeting in Montebello in 2007, U.S. government criticisms of Bill C-60 in 2005, the lobbying pressure on iCraveTV and Canadian reforms on retransmission in 2000, etc.

Perhaps the best known effort was the remarkable lobbying campaign for anti-camcording legislation in late 2006 and 2007.  Despite departmental advice that Canadian law could already address unauthorized camcording, U.S. and movie studio pressure succeeded in getting a bill introduced and passed within a matter of weeks in 2007, capped by a visit from California Governor Arnold Schwarzenneger.  Soon afterward, then head of the CMPDA acknowledged that backroom lobbying by the U.S. Ambassador to Canada (Wilkins) and Canadian Ambassador to the U.S. (Wilson) were instrumental in getting the bill passed.

In other words, the Wikileaks copyright cables are likely to confirm rather than reveal.  The U.S. copyright pressure on Canada (and many other countries) has been so pervasive that backroom deals, political arm twisting, and public pressure has ceased to surprise or shock anyone.  The real revelations lie not in whether there is U.S. pressure but rather in how Canadian officials respond to it.

Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. He has written numerous academic articles and government reports on the Internet and law. Dr. Geist is an internationally syndicated columnist on technology law issues with his regular column appearing in the Toronto Star and the Ottawa Citizen. He has received numerous awards for his work including the Les Fowlie Award for Intellectual Freedom from the Ontario Library Association in 2009 and the Electronic Frontier Foundation’s Pioneer Award in 2008.

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