US embassy cable - 05OTTAWA1725

UNCLAS SECTION 01 OF 02 OTTAWA 001725 
 
SIPDIS 
 
SENSITIVE 
 
DEPT PASS USTR FOR CHANDLER AND ESPINEL 
 
E.O. 12958: N/A 
TAGS: ETRD, KIPR, CA 
SUBJECT: INTELLECTUAL PROPERTY ACTION PLAN: ENGAGING GOC ON 
IPR UNDER SPP BEFORE OCR 
 
REF: A. OTTAWA 1305 (CANADA'S RESPONSE TO 2005 SPECIAL 
 
        301 REPORT) 
     B. SECSTATE 94876 (REQUEST FOR NOMINEES: USPTO 
        INTELLECTUAL PROPERTY ENFORCEMENT 
        PROGRAMS) 
     C. OTTAWA 1571 (IPR FILESHARING APPEAL: 
        RIGHTS-HOLDERS LOST A BATTLE BUT WINNING 
        THE WAR) 
 
INTELLECTUAL PROPERTY ACTION PLAN: ENGAGING GOC ON IPR UNDER 
SPP BEFORE OCR 
 
1. (SBU) Summary and Action Request: Following the Special 
301 decision requiring an out of cycle review for Canada 
(OCR), we urge Washington agencies to engage directly with 
Canadian officials to clarify the issues and assess how much 
progress can be expected during the review period.  Following 
are our suggestions for elements of an action plan for the 
review period. Action Request: Post requests comments on our 
proposals, and as appropriate, requests that Washington 
agencies propose dates and agenda for working group meetings 
or other forms of contact with Canadian officials.  End 
Summary. 
 
2.  (SBU) The recent Appeals Court decision negating last 
year's controversial court decision that peer-to-peer 
filesharing is legal in Canada has reassured many 
rights-holders, but the appeals judge stopped short of 
actually declaring filesharing illegal.  This gray area in 
Canadian IPR emphasizes the need for the GOC to ratify the 
World Intellectual Property Organization (WIPO) treaties. 
Copyright amendment legislation that will allow Canada to 
ratify the WIPO treaties is expected to be introduced this 
week.  Earlier GOC descriptions of their intended copyright 
act amendments made it clear that the draft legislation will 
likely not meet rights-holders' expectations in a few key 
areas, including Internet Service Provider 'notice and 
takedown'.  USG will need to engage the legislative branch as 
well as relevant departments.  The tabling of the draft 
legislation offers an opportunity for us to re-engage on IPR: 
the Canadians have been expecting a U.S. proposal to meet 
since the release of the Special 301 report and have 
reiterated their readiness to cooperate. 
 
3.  (SBU)  Bilateral Working Group: We suggest that an 
effective U.S.-Canadian working group would be the best way 
of institutionalizing IPR cooperation and encouraging 
stricter IPR enforcement in Canada: participants could 
include U.S. Patent and Trademark Office (USPTO), U.S. 
Copyright Office, DHS,  and Embassy Ottawa on the U.S. side 
and International Trade Canada, Royal Canadian Mounted 
Police, Canadian Heritage, Industry Canada, and Canada Border 
Services Agency on the Canadian side.  A notional agenda for 
a first meeting (or video conference) could include an 
exchange of contact information, a Canadian briefing on IPR 
law and enforcement procedures, and a U.S. list of specific 
questions and concerns about procedures (drawn in part from 
the past Special 301 process). It could conduct its business 
independently or under SPP or STOP; we believe SPP provides 
an excellent potential forum for cooperation on IPR, as IPR 
already figures in both the security and prosperity agendas, 
e.g. the signature theme of a "Fake Free North America."  As 
noted previously (ref Ottawa 1305), a working group linked 
explicitly to Special 301 is likely to be less popular with 
Canadian officials, who regularly note their objection to the 
entire Special 301 concept. In any case, we suggest that an 
initial meeting or DVC should take place before the end of 
June.  In the meantime, Embassy Ottawa will continue to meet 
with industry representatives to detail their concerns for 
discussion by any eventual working group. 
 
4.  (SBU)  IPR Enforcement: Training and Technical 
Consultations: We have also solicited names of Canadian 
officials who would be interested in attending USPTO 
enforcement training (ref SECSTATE 94876), and we will submit 
Embassy and Consulates' nominees in the next two weeks. 
Initial responses from Canadian federal officials have been 
very positive, and we hope that this training will provide a 
good opportunity for networking between enforcement agents on 
both sides of the border.  We understand that DHS is willing 
to host a visit of Canadian officials to the DHS IPR 
enforcement center (or a video conference). There are also a 
number of bilateral fora which can be used during the course 
of the year to address IPR enforcement, including the Cross 
Border Crime Forum (October 2005) and high-level meetings. 
 
5.  (SBU)  WIPO Ratification/Copyright Act amendments: We 
expect the GOC to table legislation amending the Copyright 
Act to implement WIPO obligations within the next week.  If 
we want to make the case for stronger rules in areas such as 
Internet Service Provider liability, we need to have a quick 
and concise USG reaction to that draft to use in discussion 
with stakeholders, legislators, GOC agencies and the press. 
Although the passage of the copyright act amendments is a key 
goal under the 2005 Special 301 report, it seems unlikely 
that legislation will pass before the end of 2005.  However, 
USG should continue to encourage expeditious legislation, 
since the recent appeals court decision emphasizes that the 
question of legality of peer-to-peer filesharing has not been 
answered and Canadian rights-holders currently have no 
recourse such as "notice and takedown" (ref Ottawa 1571). 
 
Visit Canada's Classified Web Site at 
http://www.state.sgov.gov/p/wha/ottawa 
 
DICKSON