Canada has emerged as a major battleground in the contentious U.S.-led global campaign against intellectual property piracy. But, given the number of people with money at stake and the potentially far-reaching economic, political, and social implications of the issues in question, it’s often hard to tell fact from fiction. It’s equally difficult to sort out the array of current and proposed Canadian, U.S., and international laws when it comes to intellectual property piracy.

Piracy has exploded thanks to the simplicity of the offence. IP piracy requires relatively little capital investment and can be carried out virtually anywhere. Moreover, IP piracy is quickly expanding to new technologies such as cellular phones and other mobile devices (e.g., piracy of ring tones and games).

While it’s impossible to judge the true costs related to film and other forms of intellectual property piracy, most agree it is substantial. Though hardly a neutral observer, the Motion Picture Association of America, for example, asserts the global motion picture industry incurred US$18.2 billion in losses to piracy in 2005 alone.

The authors of a recently released Rand Corporation study, Film Piracy, Organized Crime, and Terrorism, report that the Canadian-based Big Circle Boys, along with many other criminal groups in countries throughout the world, have reaped substantial profits from film piracy. And to take it that one surreal step further, the authors of a Motion Picture Association of America-sponsored study also found ‘clear evidence that terrorist groups have used the proceeds of film piracy to finance their activities.’

Today, intellectual property law encompasses a complex, and at times overlapping, array of domestic, foreign, and international statutes and regulations. In Canada and the U.S., IP violations have historically been the purview of civil law, but it is becoming increasingly common for piracy offences to be addressed via criminal codes.

For example, in June 2007 two new offences related to the unauthorized recording of a ‘performance of a cinematographic work… or its soundtrack’ in a movie theater were added to the Criminal Code of Canada. However, the legislation ignited controversy owing to the Canadian Motion Pictures Distribution Association’s prominent role in drafting and lobbying for the measure.

And that’s just the domestic layer. Beyond its own laws, Canada is also a signatory to a number of international intellectual property treaties and conventions, including the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention.

Despite those accreditations, Canada has yet to amend its Copyright Act to comply with the World International Property Organization Copyright Treaty and the WIPO Performances and Phonograms Treaty, two accords signed by the Government of Canada in December 1997.

Because Canada has been resistant to comply with the two WIPO treaties, it has found itself at odds with the U.S. in the overall piracy debate. Bill C-61, the government’s most recent attempt to amend the Copyright Act to comply with the WIPO treaties, died in Parliament (accompanied by much public outcry) upon its dissolution by the Governor General in September 2008.

Canada is currently involved in drafting yet another international pact – the Anti-Counterfeiting Trade Agreement – which specifically addresses intellectual property piracy. The ACTA negotiations originally included four parties: the U.S., European Community, Japan and Switzerland; however, Canada and seven other nations later joined the discussions, which were scheduled to resume in Morocco in July.

According to an ACTA fact sheet published by Foreign Affairs and International Trade Canada, the proposed agreement ‘aims to establish new global standards for the enforcement of intellectual property rights (IPR) to more effectively combat the increasingly prolific trade in counterfeit and pirated goods.’

While industry groups in Canada and the U.S. are voicing support for the proposed treaty, opponents in both countries have cited the lack of transparency regarding the issues under negotiation (especially during the early phase of negotiations), and the seeming duplication between ACTA and existing international agreements, among other shortcomings.

U.S. plays the heavy

The U.S. has been leaning on Canada more often of late, calling on it to strengthen its intellectual property protection and enforcement measures. That fact was recently demonstrated in the 2009 Special 301 Report, an annual global assessment of intellectual property rights protection and enforcement conducted by the Office of the United States Trade Representative. Although Canada has regularly appeared on the report’s Watch List, this year we were ‘promoted’ to the Priority Watch List, where we are joined by China, Russia, Algeria, Argentina, Chile, India, Indonesia, Israel, Pakistan, Thailand and Venezuela.

The U.S.’s increasing impatience with Canada was also recently apparent at an April 6, 2009 U.S. House Committee on Foreign Affairs field hearing on the global protection of intellectual property convened in Van Nuys, California.

The committee’s chairman, Rep. Howard L. Berman (D-CA), is no stranger to cross-border kerfuffles with Canada. In 1999, Berman and then-Canadian ambassador Raymond Chrétien engaged in a highly publicized clash over runaway U.S. film and television production to Canada.

This time around, however, committee member Rep. Dana Rohrabacher (R-CA) was Canada’s most strident critic. Rohrabacher, frustrated at the seeming ineffectiveness of listing Canada on the Special 301 Report, asked the U.S. government to propose other forms of retaliation: ‘I’m calling on the United States government today to retaliate against Canada, do something specific…This is definitely within their (Canada’s) capabilities, but they are intentionally not solving it.’

That kind of talk isn’t just bluster, nor is it being ignored north of the border. The extent of U.S. influence upon Canada’s internal discussions about copyright reform was recently evidenced by revelations that portions of several reports issued by the Conference Board of Canada advocating tougher copyright enforcement were copied word for word from U.S. materials. The Conference Board of Canada subsequently withdrew the reports in question pending further investigation.

Nonetheless, Prof. Michael A. Geist, Canada Research Chair in Internet and e-commerce law at the University of Ottawa, believes the incident caused collateral damage both to the Conference Board and the copyright legislation it championed.

‘I think the Conference Board of Canada’s plagiarism and funder-influence story has had an impact on the public perception of the copyright lobby,’ states Geist. ‘The story attracted front-page media attention for several days and has harmed the reputation of the Conference Board, as well as called into question some of the claims about the state of Canadian law,’ he adds.

Ironically, as the U.S. attempts to persuade Canada and other countries to adopt stricter legislation and enforcement measures, similar actions remain highly controversial even within the U.S.. This is especially true with respect to the Digital Millennium Copyright Act. The Act, first enshrined in 1998, brought the U.S. into compliance with the aforementioned WIPO treaties and remains a focal point of both intellectual property and privacy debates.

The intensity of public sentiment regarding intellectual property-related issues is also manifest in Sweden’s Pirate Party (Piratpartiet), which recently garnered at least one of the country’s 18 seats in the European Parliament. The party, bolstered by an ongoing war between the popular Swedish movie and music swapping site The Pirate Bay and the movie and recording industry, won 7% of the Swedish vote in the June 2009 elections. Somewhat surprisingly, the Pirate Party’s platform consisted of only three issues: a) copyright law reform; b) abolishment of the patent system; and c) ‘respect for the right to privacy.’

Intellectual property rights are not just a Canadian issue, and they are complicated by impassioned arguments for and against strengthening intellectual property protection and enforcement. Although an ideal solution to the questions remain elusive, there are seemingly inherent incentives for both copyright owners and users to seek a balance of interests that avoids the extremes of too lax or too stringent measures.

Most importantly, as Geist asserts, it is imperative for Canada to craft ‘a ‘made-in-Canada’ solution that builds on the best that can be found in countries around the world.’

Understandably, winning the war against film and other types of intellectual property piracy at home and abroad will be a daunting task that requires a concerted effort among government authorities, industry, and the general public.