pirate flagIn 2003, then Senator Joe Biden and three other Congressmen formed the Congressional International Anti-Piracy Caucus. In an invitation to Congress, the Caucus wrote that “Our bipartisan Caucus will work to support congressional efforts to deal with the problem of piracy and Administration efforts to obtain strong intellectual property protections in the context of international trade agreements.”  At the time, as it still is, the focus was on film and music piracy

On May 19, 2010, the Caucus unveiled the “2010 International Piracy Watch List.”  In the announcement, the Caucus raised warnings in connection with several countries where piracy has reached alarming levels, in particular, China, Russia, Canada, Spain, and Mexico. In addition, the Caucus listed certain problem websites that provide access to unauthorized copies of copyrighted works made by U.S. creators:  China’s Baidu, Canada’s IsoHunt, Ukraine’s mp3fiesta, Germany’s RapidShare, Luxembourg’s RMX4U and Sweden’s The Pirate Bay were identified as priority sites.  According to the report, these sites are among the most heavily visited websites in the world.  The list is very similar to the annual report prepared by the Office of the United States Trade Representative, entitled the “2010 Special 301 Report.”

The official response from the Chinese government was predictable.  It wrote, “The Chinese Government attaches great importance to the protection of intellectual property rights and has made it a national strategy. Continuous efforts have been made to enhance the system and institution-building of intellectual property rights . . . Relevant U.S. legislators should respect the fact and stop making groundless accusations of China.”

Canadian scholars were incensed at being grouped with China and Russia as the worst places on earth for intellectual property law.  Michael Geist, a professor at University of Ottawa law school, blasted the 301 Report, “In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It’s driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.”  He stated “the embarrassment is not Canadian law.  Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country.”

The response from the Canadian government was more subdued.  According to the AFP, Prime Minister Stephen Harper’s Conservative government twice tried to strengthen Canada’s current copyright legislation in 2007 and 2008, but both times the bills failed to be passed by parliament.

Strong copyright protection will ultimately be  determined by a combination of strong legislation and enforcement, not by posturing and bickering.  It remains to be seen whether China or Canada (or the other countries) will act to reduce the tide of piracy in a meaningful way.

— Adam G. Garson, Esq.