Digital Copyright Reform in Canada

The WIPO Treaties

What is WIPO?

The World Intellectual Property Organization (WIPO) is a specialized United Nations (UN) agency. Its mandate is to promote the protection of intellectual property (IP) worldwide through ensuring administrative cooperation among its member states and with other international organizations, and to administer international treaties dealing with intellectual property. WIPO was established in 1967 and is headquartered in Geneva, Switzerland. It currently has 184 Member States, including Canada, and administers 24 treaties and carries on programs that are aimed at the harmonization of IP regimes, international services for industrial property rights, the exchange of IP information, the provision of legal or technical assistance to developing countries, the facilitation of private IP disputes, and the marshalling of information technology as a means of storing, accessing, and using valuable IP information.

What are the "WIPO treaties"?

In the context of copyright reform, the “WIPO treaties” (sometimes also referred to as the "WIPO Internet Treaties") refer to two treaties created in 1996 to address issues emerging out of the digital environment - namely, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The WCT aims to protect authors, composers and other creators of literature, art, music, films, software and other such creative works, and requires members to recognize works set in a digital form and to implement anti-circumvention measures for those works. The WPPT protects producers of “sound recordings” including music CDs, cassettes and other recordings, as well as performers, such as singers and musicians. The WPPT can be seen as a specialized version of the WCT with a particular focus on the music recording industry.

The WIPO Copyright Treaty (WCT)

The WCT aims to develop and maintain the protection of the rights of authors in their literary and artistic works; to introduce new international rules in response to the new economic, social, cultural and technological developments; to emphasize the significance of copyright protection as an incentive for literary and artistic creation; and to maintain a balance between the rights of authors and the larger public interest.

The WCT recognizes 3 rights of authors:

1. Right of distribution - the exclusive right to authorize the making available to the public of the original and copies of a work through sale or other transfer of ownership
2. Right of rental - the exclusive right to authorize commercial rental to the public of the original and copies of computer programs, cinematographic works, and works embodied in phonograms
3. Right of communication to the public - the exclusive right to authorize any communication to the public, by wire or wireless means

In addition to specifying these rights, the WCT expressly confirms computer programs are protected as literary works, and such protection applies to computer programs, whatever may be the mode or form of their expression. Additionally, the WCT emphasizes the obligations concerning technological protection measures (TPM), requiring that legal remedies be provided against the circumvention of TPM (e.g., encryption or “digital locks”) used by authors in connection with the exercise of their rights. Similarly, the WCT requires legal remedies against any person knowingly to remove or alter electronic rights management information (RMI) without authorization, or to distribute or communicate to the public such works.

Finally, the WCT requires enforcement procedures be made available under law to permit effective action against any act of infringement of rights covered by the treaty. The WCT provides certain limitations and exceptions to the right granted to authors in special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interest of the author.

The WIPO Performances and Phonograms Treaty (WPPT)

The WPPT specifically protects the intellectual property rights of two kinds of beneficiaries: performers and producers of phonograms or sound recordings.

WPPT recognizes four rights of performers and producers:

1. Right of reproduction –the exclusive right to authorize the direct or indirect reproduction of their performance fixed in phonograms or phonograms
2. Right of distribution – the exclusive right to authorize the making available to public of the original and copies of performances fixed in phonograms or phonograms through sale or other transfer of ownership
3. Right of rental – the exclusive right to authorize the commercial rental of a work to the public
4. Right of making available – the exclusive right to authorize the making available to the public of performance fixed in phonograms or phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them

The WPPT emphasizes that moral rights of performers stand independently of a performer’s economic rights, declaring that the performer shall have the right to claim to be identified as the performer of his performance, and that the rights shall be maintained at least until the expiry of the economic rights after his death. The WPPT also recognizes the right of performers and producers to a single equitable remuneration for the direct or indirect use of phonograms, published for commercial purposes, for broadcasting or for communication to the public. The WPPT indicates the term of protection for producers and performers must be at least 50 years (similar to that of authors). Finally, the WPPT requires the same protection with regard to TPM and RMI as the WCT, and provides for the same limitations and exceptions to the rights as WCT.

Copyright Reform in Canada and WIPO obligations

After a WIPO member state ratifies the WIPO treaties, they are under obligation to enact domestic legislation in order to comply with the treaties. The United States acted promptly in adopting the requirements of WIPO treaties and the result is the 1998 Digital Millennium Copyright Act (DMCA). Canada has signed on to the WIPO treaties, but has not yet ratified the treaty.

In the wake of the last two attempts at copyright reform, there has been much discussion about Canada's true obligations as a signatory to the WIPO Treaties. According to WIPO, the effect of a signature does not create a binding legal obligation - this is only done after a country has ratified the treaty. Canada's status as signatory only has led some scholars to argue that the only obligation Canada has is to ensure its copyright legislation is not inconsistent with the terms laid out in the WCT and WPPT. Contending that Canada already has strong copyright legislation in place compared to other countries who have reformed their laws to be WIPO-compliant, these critics warn that the WIPO treaties should not be the sole guiding principles for reform, and moreover criticize the government's discussion of Canada's "obligations" as the motivating force behind copyright reform or a justification for some of its more controversial provisions. See Digital-Copyright.ca's blog entry on this topic for one analysis of the WIPO Treaties as they apply to existing Canadian copyright law and some of the criticisms of the various articles of the treaties.