Open Letter Re: Hague Convention
I have recently become aware of a proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters [1] .
[1] -- More information can be obtained from <www.cptech.org>
This proposal is troubling on a number of levels and it appears that Canada is listed as a potential signer of the Convention as well as a participant in negotiations. Why have Canadians not been consulted (nor even widely informed) about this Convention, which has been in negotiation for at least 10 years? This Convention has wide-ranging implications for all Canadians, yet I happened upon the information almost by accident and could find no mention of it on the Government's Web site.
One matter which I am very interested in [2] is patent and copyright law. The Convention opens up these areas of so-called ``intellectual property'' to the decisions of courts in other nations -- decisions which are absolutely absurd, as near as I can fathom. The US, for example, allows one to obtain patents on basic math (there is even a prime number which is potentially illegal in the US [3] ) and things as ludicrously simplistic as a heated ice-cream scoop [4] or business methods like Amazon.com's infamous ``one-click shopping'' patent [5] . It appears the proposed Convention would open Canada up to the full ignorance of such decisions.
[2] -- <mike-warren.com> discusses many of the issues surrounding copyrights and patents in the digital realm.
[3] -- <www.utm.edu>
[4] -- See US patent #5,131,832.
[5] -- See US patent #5,960,411. Amazon.com sued Barns and Nobles in a high-profile and expensive case. Barns and Noble eventually changed their on-line ordering system rather than continue to fight the case.
Furthermore, the Convention will only continue the strengthening of copyright and patent legislation that we've seen under agreements like TRIPS and international organizations such as the WIPO or the WTO. As early as 1971, it has been recommended [6] to the Canadian government that weakening of the patent and copyright systems are in order. Mandatory licensing was tried -- with great success -- in the drug industry and it was correctly noted that few Canadian copyrights are actually held by Canadians. Contrary to recommendations to make mandatory licensing the norm for all patents, the government eliminated mandatory licensing entirely and lengthened patent terms. Why? Contrary to recommendations to shorten copyright terms (even to eliminate copyright altogether), the Canadian government signed TRIPS. Why?
[6] -- The Report on Intellectual and Industrial Property to the Economic Council of Canada reported on the experience of mandatory drug licensing. Apparently, their recommendations were ignored.
Where is the overwhelming evidence that the invasive and Draconian methods of copyright enforcement are needed to advance art and science (the goals claimed [7] by the Canadian copyright board)?
[7] -- ``[Copyright's] purpose, like that of other pieces of intellectual property legislation, is to protect owners while promoting creativity and the orderly exchange of ideas.'' Note the use of the pejorative ``protect'', however, which presumes the author has some right to prevent others making copies of her released work.
The Canadian Intellectual Property Office (CIPO) makes much use of the terms ``infringe'' and ``protect'' when discussing copyrights and patents. These terms are pejoratives; copyright is not a ``right'', but a privilege conferred by Canadians to producers of art and science. Insofar as this privilege means more art and science, Canadians are getting a good deal when they give up their right to make copies or implement ideas (i.e. the right to use their property as they see fit). When giving up this right is worse than the returns -- when the enforcement and terms of copyrights are quite Draconian and very long -- the deal is no longer a good one. It behooves the Government to continually show that their actions are in the best interests of the public. Where are the data showing the great and overwhelming benefits received by the Canadian public for their extremely long-term copyright privileges? The privileges extend not only to Canadian authors and scientists, but to foreign authors and scientists in hundreds of countries. Indeed, what is the rationale for extending copyright privilege after the death of the author, especially for the extremely long period of 50 years?
Will the proposed Convention open Canada up to the even longer copyright terms of the US?
The Copyright Act [8] speaks of only the moral rights to the integrity of the work and for the author's name to be associated with it. By what magic are these moral rights translated into the extensive privileges granted by the Copyright Act?
With such wide-ranging privilege being conferred, the benefits must be great indeed to the Canadian public; what are they? How does the Government respond to evidence [9] that stronger copyright and patentprivileges actually damage innovation? Does the Government have anyevidence whatsoever that stronger patents or copyrights mean morescience or art for the Canadian public? For example, does thegovernment have evidence that the recent retroactive extension of drugpatent terms from 17 to 20 years: increased real R&D spending in Canadian drug research; the number of drugs available to Canadians; lowered the cost of drugs to Canadians; or produced more basic drug-related research in Canada? If the answers to any of these questions are, ``no'' or ``unknown'', then this begs the question, ``why were patent terms extended''?
[9] -- <researchoninnovation.org> presents data showing a decline in innovation and advance of the computing field in the US when copyright and patent privileges in this field were strengthened there in the early 1980s.
However we answer the above important questions, the proposed Convention would appear to greatly limit our ability to implement any policy we might decide upon; it seems an especially bad idea to cement policy decision in the stone of such international treaties when there is no equivalent of an international legislature which can respond to citizen's concerns. Even pursuing a local civil court case can be hugely expensive; it follows that an international case would be even more costly. What assurance can the Government provide that the Convention would not merely relegate civil disputes to those who can afford the great expense, for all intents and purposes shutting local businesses and private citizens completely out of many important civil law issues.
We can look to the US again for another recent and high-profile example; 2600 Magazine [10] is currently appealing a decision preventing them from linking to certain information on the Internet. Luckily for them, the Electronic Frontier Foundation (EFF) [11] is covering their legal expenses, which exceed $2 million US. Could, for example, a local Alberta magazine afford such expense to defend their right to speak?
I conclude by asking the most important questions:
What possible gains does the Canadian public make by subjecting themselves to the legal decisions of jurisdictions over which they have absolutely zero political sway and very little legal leverage?
Where is the good for the Canadian public in the proposed Convention?
Countries with wildly different legal systems than Canada's are listed as potential signers of the Convention; how will legal decisions of Muslim countries (for example) have any relevance to Canadians?
Response from Industry Canada
Marie-Jose Thivierge
Dear Mr. Warren:
Thank you for your electronic correspondence of June 11, 2001 concerning the proposed Hague Convention on jurisdiction and enforcement and various intellectual property matters. I regret the delay in replying to you.
The first session of the diplomatic conference concerning the Hague Convention was held in June. The delegates were aware of the immense complexity of the issues related to intellectual property and a number of texts were proposed. No decisions were made on the texts related to intellectual property. Rest assured that prior to any subsequent diplomatic conference at which the Convention could be finalized, the government would first seek the views of Canadians.
Your e-mail also raises a wide variety of other intellectual property issues. Suffice it to say that Canada is a member of several intellectual property treaties or trade treaties which contain chapters on intellectual property. These treaties provide protection for Canadian creative works and inventions in other countries. They ensure that Canadian creators and inventors receive compensation for the use of their works around the world. In order to receive such international protection, Canadian law must conform with the norms set out in those treaties. If Canada were to adopt norms inconsistent with those treaties it would mean that Canadian creative works and inventions would not be protected in foreign countries. In the case of trade treaties, it would mean that Canadian exporters, importers and consumers would be unable to reap the benefits conferred by those treaties with respect to many types of trade.
I trust this information is useful.
Sincerely,
Marie-Jose Thivierge Director General