The Entertainment Software Association, you may have heard, has been making noise recently about keeping Canada on the U.S. Trade Representative's "Priority Watch List" of countries with rampant piracy problems and an unwillingness to do anything about them. As part of the International Intellectual Property Alliance, which filed a Special 301 Report asking that Canada be kept on the list, the ESA expressed its "continued disappointment" with Canada over its "legislative deficiencies and a lack of consistent, deterrent enforcement" of IP laws.
Let me first summarize the reaction of most Canadians by saying, "Oh, boo hoo." That may sound vaguely knee-jerkish but regardless of the legitimacy of the IIPA's position, and that's certainly debatable, the one thing we Toronto-hatin', Hockey Night-lovin', Moosehead-drinkin' hosers just don't care for is Americans trying to tell us what to do. That kind of thing just doesn't play too well up here.
But there's more to it this time around than just the indignant outrage of the Kenora dinner jacket crowd. A far more considered and intellectually hefty opposition to Canada's presence on the Priority Watch List comes from none other than the Computer and Communications Industry Association, which "opposes placing Canada on any Special 301 list in the company of nations that genuinely fail to provide adequate and effective protection [to IP laws]."
And just what is this Computer and Communications Industry Association? "CCIA is a nonprofit membership organization for a wide range of companies in the computer, internet, information technology, and telecommunications industries, represented by their senior executives," the agency's website says. "Created over four decades ago, CCIA promotes open markets, open systems, open networks, and full, fair, and open competition." CCIA members include Google, Microsoft, Oracle, Yahoo!, Intuit, Nvidia and many others.
While none of those companies are specifically game-oriented, they draw a lot of water in the overall technology industry and presumably have a certain valuable insight into the nature of software piracy and how best to fight it. And unlike the IIPA, the CCIA believes that the inclusion of Canada on the Special 301 list is a mistake that ultimately diminishes the credibility of the process.
"Placing IP-respecting nations with whom we differ on policy among IP scofflaws undermines the deterrent effect of such treatment for those nations which genuinely perpetuate the most onerous or egregious acts, policies, or practices with respect to rights related to intellectual property," the CCIA said in its own filing to the U.S. Trade Representative, made on February 16.
"CCIA opposes placing Canada on any Special 301 list in the company of nations that genuinely fail to provide adequate and effective protection. Canada's current copyright law and practice clearly satisfy the statutory 'adequate and effective' standard," it continued. "Indeed, in a number of respects, Canada's laws are more protective of creators than those of the United States." That's a bold statement, but coming as it does from a copyright advocacy group with heavy hitters like Microsoft on board, not one that should be dismissed outright.
One of the IIPA's primary complaints is that despite being a signatory to the World Intellectual Property Organization treaties, Canada hasn't actually done anything to bring its laws into compliance with its regulations. But as the CCIA notes, providing "adequate and effective protection" to intellectual property rights is a function of Canadian law, not whether or not Canada has ratified any particular treaty. One particular sticking point revolves around hardware like the notorious R4 device for the Nintendo DS and other mod chips, which are illegal in the U.S. but not in Canada. "The widespread availability of circumvention devices in Canada, which are not prohibited under Canadian law, is central to the piracy problem," the IIPA claimed in its filing to the USTR. "The lack of TPM [technological prevention measures] protections in Canada also enables vendors to import circumvention devices from overseas manufacturers by the thousands."