Peter (Jay) Smith, Ph.d.
Athabasca University
Alberta, Canada jays@athabascau.ca
Draft
Paper Presented at the Society for Socialist Studies, Capital, Connections, Control,
Congress of Humanities and Social Sciences,
Concordia University, Montréal Québec
31 May
– 03 June 2010

" Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a Public Domain of freely available material than they do on the informational material that is covered by property rights. The Public
Domain is not some gummy residue left behind when all the good stuff has been covered by property law. The Public Domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture." Preamble to the
Public Domain Manifesto (James Boyle, The Public Domain , p.40f, 2008)
Introduction
In March 2010 Federal Industry Minister Tony Clement made a strong commitment to a Canadian path to copyright reform. Copyright as an area of intellectual property rights (IPRs) has moved from the technical, obscure and the arcane to the politically contentious in recent years. Canada, claimed Clement, was not going to bow to American or European pressure or norms when it came to reforming Canadian copyright legislation. Rather, stated Clement, “We’re going to do it in a made-in-Canada way.” (CTV News March 3, 2010)
Is it possible to have a purely “made-in-Canada way” of reforming copyright legislation? This paper addresses this key question arguing the norms of intellectual property protection have become increasingly imbedded in a global framework of gov ernance that virtually precludes an independent path for Canada. Clement’s statement is indicative of a dilemma for the Canadian state in an age of globalization, that is, how to appear to be responsive to the demands of Canadian civil society and sovereign in its IPRs choices when it is in the process of potentially foregoing these rights and responsibilities in various arenas of global governance. This dilemma is made pointedly clear by Canada’s active participation in the current negotiation of the highly secretive Anti-Counterfeiting Trade Agreement (ACTA) which is not primarily about
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counterfeiting or trade but about IPRs, in particular, copyright. If approved, ACTA would mean that Canadian legislation would have to be adjusted to conform to global, in particular, American norms as set out in the United States 1998 Digital Millennium
Copyright Act. (DMCA) ACTA, according to Susan Sell, is part of a drive by IP maximalists “to ratchet up standards of intellectual property protection in multilateral interg overnmental forums” (2008:4), forums in which Canada has been a willing participant since 1994 when IPRs were included in the North American Free Trade
Agreement.
How Canada came to be in its current situation of promising a primarily domestic policy process for copyright reform but engaging in an international intergovernmental process that would severely limit its domestic options can only be understood within a broader historical context that is outlined in the first part of the paper. Here the meaning of IPRs are discussed, the role they play in a capitalist society, along with the balance between the commodification and social uses of knowledge and information, a balance that has become upset through a means of global agreements beginning with the Trade
Related Aspects of Intellectual Property Rights (TRIPS) agreement in 1995.
Increasingly, the social uses of knowledge have become a residual category. The paper later discusses how this has spurred a diffuse global movement of resistance to corporate inspired copyright reform which has been particularly strong in Canada.
As the paper indicates Canadian resistance only became evident as Canada began a domestic process of accommodating new global norms of IPRs and IPRs enforcement in the 1990s, a process that is incomplete and potentially subject to ACTA.
ACTA is intended to become the vanguard of the global intellectual property
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enforcement regime. Spearheaded by U.S. and corporate interests the treaty is being negotiated in secret and represents a serious attempt to subordinate digital technologies and copyright to corporate control. Later sections paper will examine the progress of ACTA, criticisms of it, growing resistance against it along with Canada’s participation in the ACTA process. Will ACTA represent a victory of IP maximalists and the continuing enclosure and commodification of the knowledge commons or will global and Canadian resistance be successful leading to the denouement of U.S. efforts to control the IPRs agenda? The stakes are high.
IPRs – What are they? What are the key issues?
Intellectual property rights have a history nearly five hundred years old extending back to the Venetian Republic.
1 Their purpose is to construct “a scarce resource from knowledge or information that is not formally scarce.” (May 2006:5) Unlike scarcity in the material world scarcity in terms of knowledge and information has to be created. In the material world where there are two or more possible users they must compete for the resource. However, knowledge and information can be used by multiple users without detracting from their utility. (May and Sell 2006) There is, in effect, potentially no scarcity when it comes to knowledge and information. Historically, it has been the state that has legally created scarcity in the knowledge commons, this with the intention to ensure that under capitalism that knowledge and information can be commodified. As
May notes “the commodification of things into forms of property removes them from the sphere of social interaction and places them in the realm of marketized interactions, where they can be bought and sold with little reference to their production.” (2010:149)
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The argument is that without economic rewards there would be little incentive to innovate within a capitalist society.
However, IPRs have never been absolute. There has been a historical balance between the rewards that result from private ownership and the public interest or benefit. This balance has been ensured through a variety of means, for example, property rights in knowledge and information are temporary and revert to the public domain after a set period of time that permits a reasonable return for the legal owner of the rights. In addition, the rights of copyright holders are limited and have historically been subject to provisions of fair use (United States) and fair dealing (Europe, Canada) for private, research and educational purposes. While commodification and the social uses of knowledge have existed in balance the introduction of digital technologies has posed a challenge to owners of IPRs, particularly owners of copyright. Today, the ease with which anyone with a computer can reproduce high quality digital copies of digital artefacts means that copyright owners no longer have a monopoly on high quality reproduction. (May 2007) This, in turn, has lead to considerable anxiety by corporate owners of copyright over potential “theft” and digital piracy. According to May “the discourse of ‘piracy’ and ‘theft’ dominates the discussion of copyright in the global political economy” (2010:151) and has lead to an ongoing effort to establish, and strengthen the international enforcement of IPRs, the first and most notable of which was the TRIPS agreement. The TRIPS agreement, however, did not completely resolve this anxiety over theft, piracy, counterfeiting and enforcement leading to further corporate efforts to ratchet up intellectual property protection by means of TRIPS plus
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protections in other bilateral and multilateral agreements and forums of which ACTA is but the latest.
IPRs go global
– TRIPS and beyond
How the protection and enforcement of IRPs became part of what is known as the TRIPS agreement must be understood within the context of what has become known as “forum shifting.” Forum shifting is a process by which a negotiating agenda is moved from one venue or organization where the United States and to lesser extent, the EU, is facing resistance to another friendly venue or organization. As Drahos notes
“the basic reason for forum-shifting is that it increases the forum-shifter’s chances of victory. … Forum-shifting is a way of constituting a new game. Facing defeat or a suboptimal result in one forum, a state may gain a better result by shifting its agenda to a new forum”, one which may be horizontal, for example, from one multilateral forum to another or vertical, for example, from a state to a multilateral forum. (2004:55.56) This is a cat and mouse game exercised by those seeking to maximize IP protection from
TRIPS to the present day ACTA.
Sell (1999, 2008) describes the process by which the United States moved its quest for global IP standards horizontally from the World Intellectually Property
Organization (WIPO), a specialized United Nations agency created in 1967 to promote the protection of intellectual property, to the General Agreement on Tariffs and Trade
(GATT) created in 1947 and which lasted until 1994 when it became part of the World
Trade Organization (WTO) in 1995. The U.S. shifted forums in part because it thought it could induce developing countries to accept higher IP standards by linking trade and
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access to its huge market and because developing countries had less leverage in
GATTS then they did in WIPO.
Sell makes clear, however, that while it was the U.S. government that formally shifted forums the impetus for the shift came from twelve corporations which ultimately
“made public law for the world” (1999:172) in a prime example of how economic globalization blurs boundaries “between states and societies,… and public and private sectors.” (171) In sum, influential U.S. firms with high stakes in the intellectual property sector mobilized an international coalition of U.S., European and Japanese firms, the
U.S., the EU, and Japanese governments to protect their competitive advantage in IP in terms of trade. The corporate executives of these twelve firms indentified a problem
(foreign pirates) in the U.S.’s growing trade deficit and framed a solution which became known as TRIPS. When it came to the corporate quest to globalizing IP protection Sell argues that the American state was “not a neutral broker of interests”, an ominous development for the historical balance between the private and public uses of intellectual property (1999:173)
In brief, in terms of IP protection the process by which TRIPS was derived has become known as private nodal governance, a complex process by which groups and networks of multinational corporations led by U.S. multinational corporations centrally coordinate the “process of standard-setting for sectors of key importance to multinational companies – intellectual property rights, services and investment.” (Drahos
2003:11) Whenever resistance is encountered the US simply shifts the negotiating agenda to another forum. What has become known as the “global intellectual ratchet” is, argues Drahos, “precisely the product of this centrally co-ordinated strategy of forum
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shifting.” (2003:12) The intended result is an effort by the United States to universalize and enforce its norms of intellectual property (Drahos 2003), a stark reminder of the claim by Boaventura de Sousa Santos that:
Under the conditions of the Western capitalist world system there is no genuine globalization. What we call globalization is always the successful globalization of a given localism. In other words, there is no global condition for which we cannot find a local root, a specific cultural embeddedness. (2007:7)
While the corporations are critical in creating and maintaining the framework of nodal governance (Cutler, et. al. 1999) nodal network governance requires a leading role by the state. Particularly, in terms of IPRs, the private sector needs the state to create and enforced desired international norms. It is the state, not the private sector, which has the formal legal authority to negotiate internationally. Here the state, and, in particular the U.S., becomes the lead actor in what Castells describes as “ nodes of a broader network of power
” composed of plural sources of authority, public and private
(2004:357) According to Castells within this complex network system of governance the state must reconcile three interwoven processes:
How individual states relate to their constituencies, by representing their weighted interests in the network state; how they ensure the balance and power of the network state to which they belong, as this network state provides the operational platform that ensures the efficiency of the state in a globalized system; and how they advance their own interests visà-vis other states in their shared network. (2004:361)
For Canada, there are advantages in being in the dominant node of governance in terms of creating and enforcing copyright norms. However, the sovereignty of the
Canadian state is compromised within this bloc and to resist U.S. hegemony is something that the Canadian state has been reluctant to do. To the contrary, when it
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comes to creating and ratcheting up international norms of IPRs Canada has always been a willing participant from the NAFTA to TRIPS to WIPO and now ACTA.
TRIPS was a prime example of this nodal system of governance at work. TRIPS, in brief, gave most of what its corporate proponents asked for (Sell, 1999) requiring all members of the WTO to take positive action to enforce minimal standards of intellectual property protection. The result was that most countries in the global south and many in the global north had to introduce or change their domestic legislation to align with
TRIPS provisions. While most of the new protections covered patents, particularly in medicines, enforcement of copyright protection was also enhanced particularly in terms of copyright protection for software. Overall, TRIPS has proven costly to many states and societies not only in terms of having to change domestic legislation but also in terms of the growing trend of corporations to socialize the costs of enforcement of monopoly privileges and the large flows of fees flowing to corporations in the U.S.,
Europe and Japan by most members of the WTO who are not notable producers of intellectual property. This prompted Sell to ask, “is what is best for twelve corporations best for the world?” (1999:191) This tilt towards corporations is seen as tipping the balance between the owners of IPRS and the public in favour of the owners of IPRs, a process that was reinforced by WIPO’s adoption of the WIPO Copyright Treaties (WCT) in 1996.
Almost immediately after TRIPS was passed corporations began to press for further protection of IPRs particularly in terms of digital regulation which was seen as a weaker aspect of TRIPS. WIPO, which had been eclipsed by TRIPS, sought to reestablish itself in terms of IPRs and enforcement. It provided technical support for
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developing countries attempting to amend or introduce new domestic legislation to comply with the provisions of TRIPS. (May, 2010) It also took on the responsibility for the development of further governance measures in terms of additional treaties in intellectual property. In another example of forum shopping WIPO became the venue in which the World Copyright Treates (WCT) were approved in 1996. Once again the fear of piracy and theft underlay the thought and rhetoric of corporations apprehensive at the increasing ease by which digital artefacts could be reproduced by ever increasing numbers of people.
In essence, WCT provided another layer of protection for copyright by the legal recognition and protection of digital rights management (DRM). DRM is a technological means by which either software or hardware can be employed by the owners of IP to prevent unauthorized access, use or distribution of digital content. The WCT effectively prohibits, but does not criminalize, the circumvention of DRM. (May 2010)
However, to be effective the WCT had to be ratified by member countries. In
1998 the United States Congress passed the Digital Management Copyright Act as part of its ratifying and enabling legislation of the WCT.
2 The DMCA provides strict and sweeping protection for digital property effectively limiting the fair dealing provisions of both the WCT and the DMCA. It criminalizes, for example, the circumvention of DRM even if no act of copyright infringement has occurred. According to Reichman and Uhlir:
In effect, the DMCA allows copyright owners to surround their collection of data with technological fences and electronic identity marks buttressed by encryption and digital controls that force would-be-users to enter the system through an electronic gateway. To pass through the gateway, users must accede to nonnegotiable electronic contracts, which impose the copyright owner’s terms and conditions
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without regard to the traditional defenses and statutory immunities of copyright law.
(2003:378 as quoted in May and Sell 2006:182)
The result argues May is that the DMCA further tilts the balance in terms of copyright in favour of owners of IP because DRM prevents legal access without authorization even though the act legally permits
‘fair use’. According to May the DMCA expands “the rights of one specific interest, the owners, with little regard for the diminution of the other interests accorded weight by copyright i n the past: the public or social good of access.”
(2007:56) It is this upsetting of the traditional balance between owners and the social good that has contributed greatly to the politicization of copyright which is morphing into a global movement of resistance as is evident, for example, in the open source or open access movement.
Canada and the politicalization of copyright
It was in this environment of the increasing politicalization of copyright that
Canada began to consider reforms to its copyright legislation, reforms intended to be part of Canada’s implementation of the WCT. However, successive Liberal and
Conservative governments were slow to realize the extent to which copyright was becoming politicized in Canada accepting uncritically the corporate viewpoint
(unsubstantiated) that the world of the Internet was populated by digital pirates and thieves and that, therefore, IP needed enhanced protection. Canada was also under considerable pressure from the United States Trade Representative’s Office (USTR) to enact legislation to implement the WCT along the lines of its own DMCA. (See Murray
2005 and Tawlik 2005) In Canada the road to copyright reform has been particularly messy, complex and protracted.
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In 2001, the Government of Canada, partially in response to existing copyright legislation that called for a review of the Copyright Act and partially to the WIPO’s copyright treaties, began a review of the Copyright Act. Two departments, Heritage
Canada and Industry Canada in 2001 published A Framework for Copyright Reform and a Consultation Paper on Digital Copyright Issues which were followed by cross-country hearings before crowded auditoriums. In 2004 the House of Commons Standing
Committee on Canadian Heritage released an Interim Report on Copyright Reform followed by a response from the Government. In that same year the Canadian Supreme
Court ruled strongly in favour of the historical balance in copyright between owners and public use. At about the same time the Office of the United States Trade
Representative (USTR) castigated Canada for its weak copyright laws and called for
Canadian legislation that would harmonize with the U.S Digital Millenium Copyright Act
(DMCA), itself, held out as an exemplar of the WIPO treaty.
In 2005 the minority Liberal
Government introduced Bill C-60 to reform the Copyright Act. However, in that same year it was defeated and a new minority Conservative Government renewed the process of copyright reform. In 2007 the House of Commons Standing Committee on
Industry Science and Technology released a report entitled Counterfeiting and Piracy are Theft , the title of which speaks volumes. The Government followed with a response and in the fall of 2007 the Conservative Government introduced Bill C-61 to reform the
Copyright Act but died on the order paper when the Government called an election in
2008 only to be re-elected again as a minority government, initiating in July 2009 a nation-wide consultation process on copyright reform.
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This is a thumbnail sketch of a complicated process. However, many of the central features remain the same throughout. Both Liberal and Conservative governments have tended to view copyright through the lenses of the copyright industry, accepting at face value that counterfeiting, piracy and theft of copyright materials, especially digital materials, were a wide spread problem. Under both governments the balance in copyright started to tilt towards owners with users frequently framed in negative terms as digital pirates. Importantly, the logic of protecting DRM was accepted and so was the idea that owners of IP had the right to control the uses to which IP was put. In a related vein both governments proposed greater socialization of costs of enforcement of copyright by government policing agencies and border controls.
Increasingly public use was becoming a residual category in comparison to owners’ rights. In addition, the need to respond to the WIPO treaties and the USTR’s complaints gave added urgency to the calls of both Liberal and Conservative governments to bring in reforms. This is a reminder of Stephen Gill’s contention that neo-liberal forms of discipline “represent both transnational and a local dimension of power.” (2003:131)
Both the Canadian state (here by the USTR) and Canadian users of digital material (by the Canadian state) needed to be disciplined. Yet, with dominance comes resistance and during this period civil society resistance to the proposed changes began to mount reaching a crescendo in 2007, 2008 with the introduction of Bill C-61.
What was to particularly upset many Canadians was the focus on file sharing and prevention of circumvention of DRM which have the capacity to control access and use of copyrighted material. From 2001 on there has been a shift in language towards the rights of owners in terms of their control over uses of copyright. This language shift is
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evident, for example, of the Framework for Copyright Reform (2001) which states “The law provides creators and other rights holders with a number of legal rights to authorize the use of works” with only a few “exceptions” permitted. Laura Murray describes this as
“a careless or deliberate obfuscation of the scope of copyright owners’ rights under the
Copyright Act.
“ (2005:30) Murray argues that
The Copyright Act was never intended to give the copyright owner the legal right to control the uses to which his/her work was put. … But since the copyright pertains only to acts of making copies — either material or publicly disseminated immaterial copies (performances)
— it has always been the case that most use of copyrighted material is beyond copyright control. A writer has never been able to stop a buyer of her book from reading it in the bath, selling it, or wallpapering a room with it. A movie studio can’t stop a DVD-viewer from muting the movie, misinterpreting the movie, or hanging the DVD in the garden to scare crows. 30
Yet, the theme of control of use was to persist leading to leading to eventual
Government acceptance of the need to prevent circumvention of the controls provided by DRMs. The Consultation Paper on Digital Copyright Issues by Heritage Canada and
Industry Canada, however, recognized the danger of the excessive control afforded by
DRMs stating: the prohibition on circumvention devices and services could have the effect of overriding the traditional contours of copyright protection that emphasize a balance between the rights of creators and the interests of users. More particularly, the prohibition could have the effect of potentially blocking all types of access and use, whether or not they constitute an infringement of copyright.
(2001a)
Yet, the first attempt by the then Liberal lead government to enact copyright reform, Bill
C-
60, albeit milder than the United States’ DMCA in that, for example, it did not criminalize circumvention of DRMs, did provide for liability for anyone who “provides a service to circumv ent … and who knows or ought to know that providing the service will result in an infringement”’ (2005, s. 27 pertaining to 34.02(2) of the Act.) This would
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have made it difficult for music lovers, teachers, students and researchers to exercise user rights of fair dealing.
While the Liberals were defeated in 2005 the Conservatives picked up where they left off. The name of the House of Commons Standing Committee on Industry
Science and Technology report Counterfeiting and Piracy are Theft supported by the
Conservatives and Liberals speaks volumes in terms of politicians’ pro-industry bias. It spoke of the need to criminalize the circumvention of DRMs, for more overall IP enforcement, the urgency to ratify the WIPO treaties, and to heed the warnings of industry and the USTR of rampant piracy in Canada. The summary page of its recommendations lists corresponding witnesses who read like a who’s who of industry and their lobbying organizations such as the Canadian Recording Industry Association,
Microsoft and the Canadian Anti-Counterfeiting Network, the latter of which provided the committee with data indicating the extent of Canada’s piracy and counterfeiting problem. (2007: http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Doc
Id=3060548&File=45 )
Unfortunately the Committee never did have access to independent verifiable information documenting the extent of counterfeiting and piracy in Canada which, if it had, might have led them to temper their comments and recommendations. According to recent reports of the World Economic Forum Canada ranks ahead of the United
States, Japan and the United Kingdom in terms of intellectual property protection.
(2010 ) That is, digital piracy according to the World Economic Forum is a greater problem in the U.S. than it is in Canada. Moreover, in terms of the Canadian
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government’s fear of file-sharing, a 2009 report by the Dutch government which systematically investigated a significant number of peer reviewed studies on file sharing and the impact on sales concluded file sharing had “only a moderate effect on physical audio format sales.” (McManus 2009, Annelies Huygen et. al.
, 2009) Even U.S. government sources question industry losses due to counterfeiting and piracy. A recently released report by the U.S. General Accountability Office concluded that industry data was faulty, based on questionable assumptions, and “cannot be substantiated due to the absence of underlying studies .” (April 12, 2010,
The Government essentially agreed with the tenor of the Standing Committee’s report Counterfeiting and Piracy are Theft tabling Bill C-61, An Act to amend the
Copyright Act in 2008. The bill included anti-circumvention provisions that would have prohibited users from overriding or circumventing digital locks that prevent or limit access to, or use of, digital content. Those circumventing digital locks or uploading circumvented material to the Internet would have been subject to a $20,000 fine. One analysis by noted legal copyright scholar, Michael Geist, argued that “the digital lock provisions are worse than the DMCA. Yes - worse. The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent.
” (June 12, 2008)
The Bill had a number of other restrictive provisions. Currently Canadians are permitted to copy a work under fair dealing for research purposes, critique, review and a variety of other purposes. Under the proposed legislation this would have been possible only if the work was not locked down by a DRM system. In addition, educational
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institutions and libraries would have to “police” any copyrighted material sent to students and researchers and ensure it was destroyed within five days.
Bill C-61 brought a storm of criticism from civil society and stimulated the largest online protest in Canadian history, a protest, which, in turn, fostered offline political activism. A Facebook group set up to protest the legislation grew to over 90,000 members in June, 2008.
3 The legislation again died on the order paper when the
Conservative Government called an election in the fall of 2008 only to be re-elected with another minority government. By now copyright reform had become highly politically charged. As one Member of P arliament stated, “You mention copyright on Parliament
Hill and pretty much all the politicians run to their respective bunkers and put their helmets on.” (Angus, May 18, 2009)
While the Conservatives where determined to press ahead on reform in July
2009 they tried an entirely different approach engaging in open, transparent, and wide spread consultations on copyright reform with Canadians. As one observer stated
“They’ve given those uppity ‘users’ an opening and with help from agitators like Geist, users have taken it. With their contributions logged and visible, they won’t be so easily ignored when it comes time to write the law.” (Tossell, 2009) Yet, even as this was occurring the Canadian Government had joined the United States, the European Union and other countries in yet another example of forum shopping, the negotiation behind closed doors of ACTA which had started in the fall of 2007 just as Bill C-61 was being drafted.
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ACTA
– a Spectre Hanging Over Canadian Copyright?
ACTA, if finally approved, would represent a significant ratcheting up of IP standards and enforcement long advocated by IP maximalists, that is, those countries whose interests align with IP producers and exporters. (Sell 2008, Kaminski 2009)
According to Kaminski “personal privacy, freedom of expression, access to education, innovation, and the proportionality of sanctions to offenses are at stake.” (2009:247)
Ostensibly focusing on the counterfeiting of physical goods ACTA is much broader in scope. Through a series of leaked and released online documents it is known that
ACTA, if completed in 2010 as planned, is intended to cover, as the USTR admits,
“piracy over the Internet.” (2009:4) As one blogger succinctly summarized ACTA “is essentially a new international copyright treaty that aims to clamp down on illegal copying and piracy of music, movies, software and other content.” ACTA, in brief, many argue would represent a globalized version of the U.S. Digital Management Copyright
Act (Penney, 2009).
Since June 2008 when the ACTA negotiations began in earnest they have been drawing increasing attention and resistance from a wide range of civil society groups and political figures and institutions. Criticisms focus on two points, process and substance. The process by which ACTA is being negotiated is particularly significant as it is being negotiated in the form of a plurilateral agreement outside recognized forums of organizational legitimacy and accountability. (Kaminisk 2009) In other words, ACTA represents the latest example of forum shopping by the IP maximalists in the U.S., the
EU, and Japan.
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The decision to forum shop is classic in that fearing they would not be able to achieve an optimal agreement in either the WTO or WIPO the U.S., the EU, and Japan decided to create their own exclusive forum largely because of increasing resistance by developing countries. TRIPS had been reluctantly accepted by many developing countries who since 2001 have rallied objecting to many of TRIPS provisions. (Kaminski
2009) The WIPO has also witnessed a TRIPS backlash by developing countries where, lead by Argentina and Brazil, WIPO has adopted a Development Agenda demonstrating a “shift in WIPO priorities from a technical focus on the protection and governance of
IPRs to a shared United Nations … focus on global development issues.” (Morin
2009:184) According to C anadian government officials frustration at WIPO’s reluctance to engage in substantive discussions on greater IP protection lead to the decision to negotiate a plurilateral treaty. (DFAIT, April 6, 2009; Geist, April 6, 2009) In addition
Katz and Hinze note that WIPO was also rejected because it lacked enforcement power. (2010)
In October 2007 the United States, the European Union, Switzerland and Japan announced they would negotiate the ACTA. They were soon joined by Australia,
Canada, Jordan, Mexico, Morroco, New Zealand, Republic of Korea, Singapore, and the United Arab Emirates . Given their position as IP producers and exporters the logic of the original four participants is obvious but on what basis were the other parties invited to participant? None are significant IP producers or exporters. What they have in common is that they either are FTA partners with the United States (Canada, Mexico via
NAFTA 1994, Jordan 2001, Australia 2004, Singapore 2004, Morocco 2006) were awaiting approval (Republic of Korea 2010 ?), or were in the process of negotiating a
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treaty (United Arab Emirates). Each of these treaties includes provisions for more protection for IPs than exists under the agreement and does not derogate from other bilateral, multilateral or plurilateral agreements incorporating higher standards. (Drahos
2003) In effect, the United States is attempting to leverage or ratchet up these agreements to help ensure a successful outcome for ACTA.
Canada’s position in regard to ACTA is not necessarily a perfectly comfortable one in terms of its interests. Canada is not a primary exporter of IP, in fact it would probably end up paying IP producers much more in terms of fees and purchase of copyrighted products or licenses. However, it is part of the nodal power bloc discussed previously and does have a need to manage its trade relations with the United States and has been in consistent agreement with the United States in terms of increasing norms for IP protection beginning with the North American Free Trade Agreement with
Canada and Mexico which came into effect in January 1994, the first trade treaty to protect IPRs.
ACTA – Concerns Over Process
In terms of process the modus operandi of the United States represents a replay, with modifications, of the role of private authority in nodal governance described previously by Susan Sell in the negotiation of TRIPS(1999) albeit with the understanding that states and key state actors such as the USTR are needed to coordinate this hybrid private/public system of network governance. The key modification, of course, is that GATT/WTO and WIPO are no longer friendly venues to negotiate. This process represents another version of the expanding “circles of
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consensus’”by which the text of TRIPS was negotiated.(Weatherall 2009:2) Here a select group of like minded countries and corporations negotiate to reach a consensus among themselves (the proposed ACTA) and later include other countries on a take or leave it basis perhaps by means of a series of bilateral agreements with either the U.S. or the European Union. 4 The process, then, is exclusive and leaves out most developing countries particularly those of consequence, China, India and Brazil, along with most of civil society.
The process has also been criticized for its almost complete secrecy. The
Obama administration which inherited the process from the Bush administration has likewise insisted upon secrecy despite coming into office calling for greater transparency in government. In response to a Freedom of Information request from key
American civil society organizations protesting the process, the request was denied by the USTR on the basis that the “information … is … classified in the interest of national security pursuant to Executive Order 12958.
” (March 10, 2009) Despite attempts at secrecy, the process has been subject to recurring leaks of key documents but given that the process is fluid and uncertain it has contributed to considerable angst if not paranoia among civil society groups. Only after its latest round of negotiations in New
Zealand in April 2010 was a draft of the text released, a topic to which the paper will turn in a later section.
The USTR has attempted to maintain secrecy by means of a confidentiality agreement that it prepared and that it required all participants, states (including corporations with access to documents) in the process to sign before negotiations began. Canada signed the confidentiality agreement but has attempted to placate
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domestic civil society groups by means of public consultations launched by DFAIT in
April 2008 and through a briefing of stakeholders in April 2009.
( http://www.international.gc.ca/consultations/active/index.aspx?menu_id=2&menu=R#a cta )
Without any official document or text with which to respond submissions could only speak in general terms about the proposed agreement. Compared to the extensive
2009 consultations on copyright reform these consultations occurred almost unnoticed in Canada. For example, there were over 4000 submissions to the 2009 copyright consultation process (Copyright Consultations 2009 ) but in the short, month long April
2008 consultation on ACTA only 31 responses were received an indicator that the
ACTA negotiations were occurring almost in the dark. (DFAIT 2009) As a DFAIT summary indicates “most business associations were largely supportive of Canada’s involvement, while those responses received from individual Canadian citizens were generally critical of Canada’s role in the formal negotiation of ACTA.” (DFAIT 2009) The criticisms echo those of ACTA critics worldwide, for example, it is not transparent, it excludes developing countries, it does not define definitions for counterfeiting, piracy or theft, it provides no evidence of same, that the negotiations should be moved to a traditional venue for addressing IP standards, i.e., WIPO.
The Canadian government has indicated that it is uncomfortable with the lack of transparency but has remained steadfast in refusing to break ranks with the United
States. According to a April 2009 briefing to stakeholders Don Stephenson, Assistant
Deputy Minister, Trade Policy Negotiations at DFAIT “expressed Canada’s commitment to furt her transparency, noting Canada’s good track record for transparency in
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negotiations … [and] provided clarification on Canada’s position, saying that Canada was pushing for the release of a negotiating text at the appropriate time but that Canada could not act unilaterally
.” (DFAIT, April 6, 2009)
The concerns over transparency aside indications are that Canada has been active in the negotiation of ACTA almost from the beginning. For example, in one leaked background document Canada proposed an international institution to oversee
ACTA and its implementation offering “to prepare a non-paper outlining the various options that negotiating partners might like to consider.
” (June 9, 2008) Canada’s participation in the ACTA has process certainly can lead one to question its commitment to the 2009 nation-wide copyright consultation process. Even the EU has suggested that the copyright consultation process may have been merely a “tactic to confuse.”
(January 18, 2010)
During this process Canada was coming under considerable pressure from the
EU and US to improve its enforcement and protection of IP. In October 2009 Canada entered into negotiations with the EU concerning a Canada-EU Trade Agreement
(CETA), negotiations like ACTA which were shrouded in secrecy. (Gallagher, January
10, 2010) Leaks from the negotiations indicate that Canada has been coming under considerable pressure to ratchet up its standards of IP. The objective of the EU has been to “put pressure on Canada so that they take IPR issues seriously and remedy the many shortcomings of their IPR protection and enforcement regime.” (As quoted in
Geist January 18, 2010) The United States was also increasing its pressure on Canada.
The USTR’s 2009 Special 301 Report put Canada on its priority watch list for flagrant IP
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violators, a list that includes China, Russia, India and Pakistan. The 301 report urged
Canada to ratify WIPO and tighten up its IP protection stating:
The United States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada. Canada’s weak border measures continue to be a serious concern for IP owners. (2009a)
This, then, was the environment in which Canada was participating at the ACTA negotiations. Canada was also under domestic pressure to be serious about IP protection. The Canadian Anti-Counterfeiting Network (CACN), which includes as its members the Canadian Recording Industry Association and the Canadian Motion
Pictures Association, in its submission to the Canadian Government’s ACTA consultations in 2008 noted that “while the impact of online piracy has been felt all over the world, the situation is particularly dire in Canada due to a combination of outdated legislation, high broadband penetration and lack of consumer education.” (April 30,
2008)
ACTA – Concerns About Substance
Thus, while little is known of Canada’s role and behavior at the ACTA negotiations the likelihood of Canada breaking ranks during the negotiations is remote.
Documents on Canada’s DFAIT website indicate that Canada shares the perspective of other state negotiators that counterfeiting and piracy were proliferating and were
“transnational activities” requiring international cooperation. (April 1, 2010)
The absence of any official negotiating text until late April 2010 meant that discussions and critiques were very much dependent on leaks of background and related documents posted on the Internet. They reveal concerns that parallel those who
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objected to Bill C-60 and Bill C-61 and most of the submissions to the Canada copyright consultations. Overall, there were four primary concerns among others.
First there was concern over the inclusion of civil or criminal penalties for the circumvention of technological protection measures (DRM) or the manufacture, sale, distribution or importation of circumvention devices along the lines proposed by the U.S.
DMCA. Thus a library that decided to transfer by means of circumvention material that it owned from one locked device to another in order to preserve it on a later, improved technological device and make it available for public access could incur civil or criminal penalties.
Second, there was a widespread concern for criminal responsibility for IPR infringement “for purposes of commercial advantage or private financial gain (no matter how low the number).
” Criminal liability could include as well as willful infringements without intent of financial gain if they negatively affected the owner of copyright.
(Weatherall 2009:12) Thus a person downloading a CD or DVD or portion thereof to avoid paying for it could give rise to criminal liability. The result claims Kaminski is that
“this standard has the potential to criminalize the behavior of an enormous number of individuals, worldwide.” (2009:253)
Third, concerns were expressed by Indications that third party liability for internet service providers (ISPs) was being actively considered. ISPs, it was feared, would have to monitor the Internet communications of all their customers raising issues of privacy and institute measures to disconnect customers infringing IP. Customers would be subject to a three strikes and you are out rule – cut off from the Internet - if, for example, one person in the household at a particular Internet address file shared
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copyrighted material. (Bode January 29, 2010) ISPs would also have to enforce what is known as provisions for “notice and take down.” 5 These are provisions of the DMCA which permit a copyright owner to request websites to take down infringing material in order to avoid liability. Evidence in the United States from Google indicates that most take down notices come from companies targeting a competing company and more than one third “were not valid copyright concerns.” (From Gibbons March 16, 2009) In
Canada ISPS operate under a milder “notice and notice” regime whereby a ISP simply passes onto a customer a notice that it has received that the customer has infringed copyright. Ultimately, it is up to the owner to take someone to court for infringement with the ISP merely being a conduit. In Canada notice and notice is used and as a result
Canadian law would have to change if notice and take down is ultimately included in
ACTA.
Finally, there was great concern expressed over the potential of increased cross border enforcement of IP, particularly copyright. Concerns centred around the possibility of search and seizure of laptops, cell phones, and Mp3s for those crossing borders.
These decisions would not be made by IP experts but by “border guards and other public security personnel [turning them] into copyright police.” (Pilieci, May 26, 2008)
There are other concerns that have been expressed. In approved ACTA would go beyond enforcement provisions and create new norms of IP law.
The possibility of these changes has resulted in a significant backlash among civil society organizations, access to knowledge proponents and increasing numbers of politicians. This has had the effect of tempering some provisions of the proposed treaty and putting pressure on the negotiators to release an official draft of the proposed
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agreement which they did on April 21 in New Zealand after the most recent round of negotiations. (DFAIT April 22, 2010) While the agreement has been tempered somewhat and is far from complete preliminary analyses indicates it “pushes the international standard to an IPmaximalist’s dream.” (Kaminski April 21, 2010)
This claim is evident in that key features of the DMCA are reproduced in current version of ACTA. In particular ACTA requires the implementation of an equivalent of the DMCA. In this case circumvention will apply to any hacking, not necessarily copyright infringement. A person could be held criminally liable for deliberately circumventing a locked down device and accessing legally useable material. (Kaminski
April 2010) In addition, ACTA has a notice and takedown provision, a provision not consistent with Canadian law which employs a notice and notice regime. While the three strikes and out provisions have been dropped by the U.S. criminal liability for ISPs is still being considered. Moreover, injunctions could be awarded against ISPs whose subscribers violate IP. In effect, ISPS, including libraries and educational institutions would be liable for users accessing the Internet through their auspices. (MacRonin April
24, 2010) Moreover, European language retains but does not require the option of three strikes so it still could be on the table. (Geist, April 21, 2010) A previously leaked
ACTA text indicated it would be a criminal offence for anyone who infringed copyright for “private financial gain” which could criminalize private acts such as copying a DVD as noted above. “Private” has now been dropped but still leaves open the possibility of small scale infringement of copyright so it is not certain individuals would not be criminally charged for acts such as copying a DVD. Finally, border measures concerns
26

have been alleviated by the fact that border guards will not be searching iPods for small quantities of material clearly non-commercial in nature.
That said, ACTA to-date is not merely about IP enforcement. It sets new international norms in terms in terms of circumvention provisions (a global DMCA) ISP liability, notice and take down, and the remaining possibility of three strikes or an equivalent. ACTA is a work in progress, not yet concluded but it casts considerable doubt on whether a made in Canada copyright policy is, in fact, possible.
Can a Transnational Movement of Resistance Stop ACTA?
The above is a key question. Can ACTA be stopped or simply its excesses be tempered and made more palatable? As noted above there are signs that a backlash or countermovement against the disembedding of knowledge from society is beginning to take root. In a sense this movement is reminiscent of what the great political economist,
Karl Polanyi, described as the “double-movement.” For Polanyi the double movement was key to understanding how history advances. The nineteenth century “great transformation” lead to the expansion of the free market as part of an attempt to disembed the market from society. At the same time, however, a countermovement occurred, one that reflected an impulse for social protection. In both instances the role of the state was critical. First, the state acted to “disembed” the economy from existing social relations and to facilitate and protect the expansion of the market. Then, the state itself came under great pre ssure to make the “process of economic improvement”
“socially bearable.” (2001:40) Polanyi argues “Indeed, humans society would have been annihilated but for protective countermoves which blunted the action of this selfdestructive mechanism.” (2001:79)
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This impulse towards social protection, however, was not merely economic.
According to Polanyi:
The outstanding discovery of recent historical and anthropological research is that man’s economy, as a rule, is submerged in his social relationships. He does not act so as to safeguard his individual interest in the possession of material goods; he acts so as to safeguard his social standing, his social claims, his social assets. (2001:48)
Clearly included among our social assets would be the knowledge and information that constitute the knowledge commons, knowledge that is in the process of being disembedded from society means of increasing IP.
In this instance the Canadian state is both under pressure to disembed knowledge from society and to re-embed it at the same time. This, however, is not just a
Canadian struggle it is a transnational one. Today, Polanyi’s analysis in terms of the national level must be scaled upwards to the global level as the movement to disembed knowledge and the countermovement to re-embed it function at both local and transnational levels. (Munck, 2007)
The countermovement, like many other transnational movements opposing neoliberal globalization, and unlike the movement to disembed knowledge, is highly eclectic and diverse in nature. Participants in the countermovement share in common a desire to keep knowledge in the public domain. In a sense the countermovement can be seen as a movement of movements as it includes those engaged in the access to knowledge
(A2K) and open source movements.
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An indication of the breadth of the countermovement can be found in the more than 100 civil society organizations from around the world who on September 8, 2008 signed a letter to ministers of governments participating in the negotiation of ACTA to make the process transparent and to address key concerns over substance several of which were discussed above.
( http://www.essentialaction.org/access/index.php?/archives/173-Secret-Counterfeiting-
Treaty-Public-Must-be-Made-Public,-Global-Organizations-Say.html
)
An analysis of the issue network indicates that many (but not all) of its actors can be found in the United States with the key nodal actor being the Electronic Frontier
Foundation (EFF) an organization dedicated to defending the public interest in terms of digital rights. (http://www.eff.org/about)
29

The EFF has been a leading source of analysis of ACTA. Further out on the periphery is the blog of the leading Canadian critic of ACTA, Michael Geist.
Included in the movement as well are growing numbers of civil society and political organizations from countries participating in the ACTA negotiations in New
Zealand, Australia and the European Union. In Europe, the Pirate Party has begun contesting elections and in 2009 the Swedish Pirate Party contested the European
Parliamentary elections and won 7.13% of the vote in Sweden and two seats in the
European Parliament. (Wikipedia 2010) Pirate Parties have been sprouting up since
2006 when it was founded internationally. The goal of the 33 Pirate Party “affiliates around the world is to reform laws regarding copyright and patents ” and to protect privacy. (Wikipedia 2010) An unacknowledged goal is to reframe digital pirates in
30

positive terms. On April 14, 2010 Elections Canada announced that the Pirate Party of
Canada was now an official party making it eligible to run candidates in the next election. (2010) The website of the Canadian Pirate Party indicates that it has over
1700 members. (2010) There is little likelihood that the Canadian Pirate Party can win a seat in the next elections but their mere presence could attract public attention to their issues putting pressure on leading parties as they have done in Europe.
Elsewhere in Europe on March 10, 2010 the European Parliament by a margin of
663 to 13 passed a resolution strongly criticizing ACTA (2010). The resolution was concerned that ACTA could violate EU laws and stated that the European Parliament could go to court if ACTA contained any provisions cutting off users from the Internet for downloading copyrighted material. The resolution also spoke to the need for transparency and to include more developing countries in the negotiations. The
European Parliament does not participate in ACTA negotiations but its consent is necessary for the European Commission to conclude the treaty on behalf of the EU.
Increasingly ACTA is becoming an issue among parties in the European Parliament. In the United States in November 2009 Senators Bernie Sanders (I-VI) and Sherrod Brown
(D-OH) wrote to the USTR complaining on issues of both transparency and substance in terms of ACTA stating they had a right to see what was being negotiated. (Knowledge
Ecology Network 2009)
Opposition to ACTA is also coming from civil society organizations, governments and individuals that compose the A2K movement. The A2K movement has its origins in a proposal put forward by Argentina and Brazil in 2004 for a Development Agenda at
WIPO which would include addressing the issue of access to knowledge. Since that
31

time A2K has been acquiring adherents, from countries, civil society organizations, libraries, academics and other individuals. In January 2010, the Public Domain
Manifesto , articulating many of the key ideas of the A2K movement was published. The
Manifesto states the following:
The public domain, as we understand it, is the wealth of information that is free from the barriers to access or reuse usually associated with copyright protection, either because it is free from any copyright protection or because the right holders have decided to remove these barriers. It is the basis of our selfunderstanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created.
… Having a healthy and thriving Public Domain is essential to the social and economic well-being of our societies. (January 26, 2010 http://publicdomainmanifesto.org/node/8 )
Including as signatories to the Manifesto are many organizations opposing ACTA,
Included as well are supporters of the free and open source software (FOSS) movement among them the Creative Commons, Lawrence Lessig, and the Open
Knowledge Foundation.
FOSS is basically incompatible with digital rights management given for it to work every user must have the right to have access to the software code in order to be view, modify and redistribute the software. The resulting software package which is always evolving is a common good, one that is abundant and not reduced, but increased, through use and consumption. According to Di Corinto:
Its use and consumption enhances its quality and the opportunity to create new products. This is exactly what occurs with the Commons . A common good is, in fact, a good that increases through consumption. (June 2007:46 )
According to May “the appeal of openness is a direct response to shift to more trenchant protection of IPRs in the postTRIPS decade.” (2006:8) However, the FOSS movement should not be seen as directed at the overthrow of capitalism. FOSS, in fact,
32

supports a different business model and includes major industry players such IBM, Intel,
Oracle , Apple, Sun, and Hewlett-Packard all who use LINUX software. (Hindman 2007)
Whether the countermovement described can derail ACTA is very much an open question. One alternative might be a contemporary version of the failed Multilateral
Agreement on Investment (MAI) which, like ACTA, was being negotiated completely in secret. Like ACTA leaks were impossible to stop and after the draft became public there was a storm of criticism from civil organizations around the world, negotiating governments could not agree on the final text and eventually the host nation, France, pulled the plug and said it could not support it, effectively killing the MAI. In the instance of ACTA a major player such as the EU facing increasing societal pressure could put the agreement at risk. Overtime, another alternative might be that a rival competitive business model based on FOSS might acquire sufficient economic and political power to challenge corporations supporting ACTA. The struggle, then, could continue for some time.
One problem facing resistance to corporate inspired copyright reform is the increasingly splintered authority
– domestic and global – over some aspect of IPRs.
Forum shopping leads to forum proliferation and fragmentation. Energies of resistance can become dissipated in these nested and overlapping venues and institutions of global governance.
6 Considerable expertise is often needed to not only find out where the conversations of reform are taking place, what these conversations are, but also to comfortably participate in them. In effect, the proliferation of forums favours the strong over the weak, the former having the ability to shift or create new forums as needs dictate. (Drezner, 2007)
33

Conclusion
– Canada, Between a Rock and a Hard Place
This means that the Canadian government may not be the master of its own fate when it comes to copyright. In a sense the Canadian government is caught between the imperatives of legitimation in which the state must act to protect the public and accumulation which is necessary to promote capitalism and economic growth. It faces opposition from below on copyright reform and pressures from the United States, the
European Union and their corporate partners in the power bloc negotiating ACTA.
Canada’s best hope may be, not unlike the MAI, that the combination of a transnational countermovement, differences at ACTA and weakening resolve in another state or the
EU (most likely at this stage, the EU) will ultimately spell the end of negotiations.
7 That said, Canada would continue to face pressure from the United States and the EU to amend its copyright legislation. As long as a minority government persists the government may be reluctant to make any accommodation to international pressure when it comes to copyright. Should, however, either the Conservatives or Liberals be elected with a majority the odds are that the government would ratify ACTA if it is ever successfully negotiated.
Endnotes:
1 IPRs, of course, is a term of recent vintage but the idea of protecting intellectual property is much older.
2 In 2001 the European Union approved the European Copyright Directive implementing the WCT.
3 For a detailed discussion of the protest against Bill C-61 see Peter (Jay) Smith 2010 “Social Networking and
Political Activism … More Orchestrated campaigns or just Karaoke?” Paper presented at the International Studies
Association Conference, 17-20 February 2010, New Orleans)
4 The list of corporations with privileged access include Google, Versizon, eBay, and the Consumer Electronics
Association. The only civil society groups allowed to see any document on a read only and not to divulge basis have been Public Knowledge and the Center for Democracy and Technology. (Weatherall 2009:4)
5
It is important to point out that according to the Canadian Library Association “that in Canada, that ISPs are not just telephone and cable companies. Frequently school boards, colleges and universities, and sometimes public
34

libraries serve as ISPs.” (April 30, 2008 http://www.international.gc.ca/trade-agreements-accordscommerciaux/assets/pdfs/CLASubmissionanticounterfeiting080430.pdf
)
6 I would like to thank Prof. Chris May, Professor of Political Economy, Lancaster University for suggesting the idea of forum proliferation and its implications for resistance.
7 I would like to thank Prof. Jean-Frédéric Morin, Political Science Department, Université libre de Bruxelles for suggesting this possibility. Email exchange March 22, 2010
References:
Angus, Charlie, quoted in Hartley, Matt (200 9) “New Media, Old Rules.” The Globe and
Mail.
18 May 2009. http://www.theglobeandmail.com/news/technology/downloaddecade/new-media-old-rules/article1141503/
Bode , Karl (2010) “Three Strikes Coming To U.S. Eventually: Even if it's expensive, won't work, and the rules are crafted in secret ” Broadband http://www.dslreports.com/shownews/Three-Strikes-Coming-To-US-Eventually-106644
January 29, 2010
Canadian Anti-Counterfeiting Network (CACN) (2008) Submission to Consultations and
Liaison Division (CSL) Anti-Counterfeiting Trade Agreement (ACTA) http://www.international.gc.ca/trade-agreements-accordscommerciaux/assets/pdfs/Anti-CounterfeitingNetwork.pdf
April 30, 2008
Castells, Manuel (2004) The Power of Identity 2 nd edition. (Malden, MA. Blackwell
Publishing)
Clement, Tony (March 3, 2010) CTV News “Power Play: Industry Minister Tony
Clement
” http://watch.ctv.ca/news/power-play/march-3/#clip272152
Cutler, A. Claire, Virginia Haufler, Tony Porter eds., Private Authority and International
Affairs . New York: State University of New York.
Di Corinto, Arturo (2007) “Free Software as a Common [Good]” in Network Politics:
Rethinking politics in an era of networks and movements: Berlin Basic Reader (A collective collaborative work) (June 2007) http://www.networkedpolitics.info/?page_id=27
Drahos, Peter (2003) “Expanding Intellectual Property's Empire: the Role of FTAs” http://www.grain.org/rights_files/drahos-fta-2003-en.pdf
Drahos, Peter (2004) “Securing the Future of Intellectual Property: Intellectual Property
Owners and Their Nodally Coordinated Enforcement Pyramid.”
Case Western Reserve
Journal of International Law Vol. 36:53
35

Drezner, Daniel W. (2007) “Regime Proliferation and World Politics: Is There Viscosity in Global Governance?” https://kb.osu.edu/dspace/bitstream/1811/29972/11/Viscosity_of_Global_Governance.p
df
Elections Canada (2010) “Registered Political Parties and Parties Eligible for
Registration ” http://www.elections.ca/content.asp?section=pol&document=index&dir=par&lang=e&tex tonly=false#ppc April 14, 2010
European Parliament (2010) “European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations ” http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2010-
0058&language=EN&ring=P7-RC-2010-0154 March 10, 2010
Gallagher, Robert (2010) “EU–Canada trade talks: the devil is in the details.” Troy
Media. http://www.troymedia.com/?p=7151 January 10, 2010
Geist, Michael (2008)
“The Canadian DMCA: Check the Fine Print” http://www.michaelgeist.ca/content/view/3025/125/ June 12, 2008.
Geist, Michael (2009) “Canada's ACTA Briefing, Part One: ACTA Is A Response to
WIPO Gridlock ” http://www.michaelgeist.ca/component/option,com_blogsidebar/task,blogsection/id,/Item id,125/isbydate,1/svt_date,2009-04-06/ April 6, 2009
Geist, Michael (2010) “EU's IP Negotiating Strategy With Canada Leaks: Calls 2009
Copyright Consult a ‘Tactic to Confuse’” http://www.michaelgeist.ca/content/view/4704/125/ January 18, 2010
Geist, Michael (
2010) “ACTA Draft Text Released: (Nearly) Same As It Ever Was.” http://www.michaelgeist.ca/content/view/4972/125/ April 21, 2010
Gibbons, Ted (2009) “Google submission hammers section 92A.” New Zealand PC
World Magazine http://pcworld.co.nz/pcworld/pcw.nsf/feature/93FEDCEF6636CF90CC25757A0072B4B
7 March 16, 2009
Gill, Stephen (2003) Power and Resistance in the New World Order .
New York:
Palgrave Macmillan, 2003
Government of Canada (2008) “Anti-Counterfeiting Trade Agreement (ACTA)
36

Non-Paper on institutional issues under the Agreement .” http://keionline.org/sites/default/files/Non_paper_on_Institutional_Issues.pdf June 9 ,
2008
Government of Canada, Department of Foreign Affairs and International Trade Canada
(2009) “Summary of Discussions – ACTA Roundtable Consultation, April 6, 2009” http://www.international.gc.ca/trade-agreements-accordscommerciaux/fo/discussion_summary-resume.aspx?lang=eng
Government of Canada, Department of Foreign Affairs and International Trade Canada
(2010) “Further Opportunities Intellectual Property: Anti-Counterfeiting Trade Agreement
- Fact Sheet .” http://www.international.gc.ca/trade-agreements-accordscommerciaux/fo/IP-factsheet-fiche.aspx?lang=en (April 1, 2010)
Government of Canada, Department of Foreign Affairs and International Trade Canada
(2010) “Draft ACTA Negotiating Text.” http://www.international.gc.ca/trade-agreementsaccords-commerciaux/fo/intellect_property.aspx April 22, 2010
Government of Canada, Intellectual Property Policy Directorate Industry Canada
Copyright Policy Branch, Canadian Heritage (2001) Framework for Copyright Reform . http://strategis.ic.gc.ca/pics/rp/framework.pdf
Government of Canada, Heritage Canada, Industry Canada. (2001a) Consultation
Paper on Digital Copyright Issues http://strategis.ic.gc.ca/eic/site/crpprda.nsf/vwapj/digital.pdf/$FILE/digital.pdf
Government of Canada, House of Commons Report of the Standing Committee on
Canadian Heritage (2004) Interim Report on Copyright Reform http://cmte.parl.gc.ca/Content/HOC/committee/373/heri/reports/rp1350628/herirp01/heri rp01-e.pdf
Government of Canada, House of Commons Standing Committee on
Industry, Science and Technology (2007) Counterfeiting and Piracy are Theft . http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Doc
Id=3060548&File=5
Government of Canada, Copyright Consultations, 2009 http://www.ic.gc.ca/eic/site/008.nsf/eng/home
Hindman, Matthew (2007) “‘Open-Source Politics’ Reconsidered: Emerging Patterns in
Online Political Participation” in Victor Mayer-Schoenberger and David Lazer, eds.,
Governance and Information Technology: From Government to Information
Government. Cambridge, MA: MIT Press, 183-207.
37

Huygen, Annelies, et. al. (2009) Ups and downs: Economic and cultural effects of file sharing on music, film and games. TNO Rapport. http://www.ivir.nl/publicaties/vaneijk/Ups_And_Downs_authorised_translation.pdf
Kaminski, Margot (2009) “The Origins and Potential Impact of the Anti-Counterfeiting
Trade Agreement (ACTA)”
Yale Journal of International Law . Vol. 34:247. Pp. 247-256.
Kaminski, Margot (2010) “The Anti-Counterfeiting Trade Agreement, Part II” http://balkin.blogspot.com/2010/04/anti-counterfeiting-trade-agreement.html April 21 ,
2010
Katz, Eddan and Hinze, Gwen “The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountability of the Office of the U.S. Trade
Representative for the Creation of IP Enforcement Norms Through Executive Trade
Agreements.” The Yale Journal of International Law Online. 35:24-35.
Knowledge Ecology Network (2009) “Senators Sanders and Brown ask White House to make ACTA text public .” http://www.keionline.org/node/698 November 23, 2009
McManis, Charles (2010) “The Proposed Anti-Counterfeiting Trade Agreement (ACTA)
Two Tales of a Treaty” http://www.houstonlawreview.org/archive/downloads/46-
4_pdf/6_McManis.pdf
MacRonin (2009) “
Preliminary Analysis of the Officially Released ACTA Text
.”
Privacy
Digest . http://www.privacydigest.com/2010/04/24/preliminary%20analysis%20officially%20relea sed%20acta%20text April 24, 2010
May, Christoper (2006) “Between ‘Commodification and Openness’: The Information
Society and the Ownership of Knowledge ” Journal of Information Law and Technology
[e-journal] http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_2-3/may/
May, Christopher (2007) Digital Rights Management: The Problem of Expanding
Ownership Rights.
(Oxford: Chandos Publishing)
May, Christopher (2010) The Global Political Economy of Intellectual Property Rights
2 nd editions. New York: Routledge.
May, Christopher and Susan K. Sell (2006) Intellectual Property Rights: A Critical
History . Boulder: Lynne Rienner.
Morin , Jean-Frederic (2009) “Multilateralizing TRIPs-Plus Agreements: Is
38

the US Strategy a Failure?”
The Journal of World Intellectual Property Vol. 12, no. 3, pp.
175
–197
Munck, Ronaldo (2007) Globalization and Contestation . London: Routledge.
Murray, Laura (2005) Copyright Talk: Patterns and Pitfalls in Canadian Policy
Discourses.” In Micheal Geist, ed. In the Public Interest: The Future of Canadian
Copyright Law Toronto: Irwin Law. http://www.irwinlaw.com/content/assets/contentcommons/120/One_01_Murray.pdf
Penney, Jonathan. 2009. “Opinion: Countering the Anti-Counterfeiting Trade
Agreement.”
Computer World.
26 November 2009. http://computerworld.co.nz/news.nsf/news/9FFD8626404AA216CC257679006E5478
Pilieci,Vito (2008) “Copyright deal could toughen rules governing info on iPods, computers .” CanWest News Service http://www.canada.com/topics/technology/science/story.html?id=ae997868-220b-4daebf4f-47f6fc96ce5e May 26, 2008
Pirate Party of Canada (2010) http://www.piratepartyofcanada.com/ April 28, 2010
Polanyi, Karl (2001) The Great Transformation: The Political and Economic Origins of our Time . Boston, MA: Beacon Press.
Santos, Boaventura de Sousa. (2007) “Preface.” and “Human Rights as an
Emancipatory Script?” in Santos, Boaventura de Sousa, Ed. Another Knowledge is
Possible.
London: Verso. Vii-xvix, 3-41.
Sell, Susan (1999) “Multinational Corporations as Agents of Change: The Globalization of Intellectual Property Rights.” In A. Claire Cutler, Virginia Haufler, Tony Porter eds.,
Private Authority and International Affairs . New York: State University of New York
Press. 169-199.
Sell, Susan (June 9, 2008) "The Global IP upward Ratchet, Anti-Counterfeiting and
Piracy Enforcement Efforts: The State of Play," Institute for Global and International
Studies, George Washington University. http://keionline.org/miscdocs/Sell_IP_Enforcement_State_of_Play-OPs_1_June_2008.pdf
T awlik, Myra (2005) “International Copyright Law: W[h]ither User Rights?” in Geist,
Michael, ed. In the Public Interest: The Future of Canadian Copyright Law Toronto: Irwin
39

Law. 66-95 http://www.irwinlaw.com/pages/content-commons/international-copyrightlaw--w-h-ither-user-rights---myra-tawfik
Tossell, Ivor. 2009. “Progressive signals? From the Tories? On copyright?”
The Globe and Mail . August 26, 2009.
United States Government Accountability Office (2010) Intellectual Property:
Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated
Goods . http://www.gao.gov/products/GAO-10-423
United States Trade Representative’s Office (2009) “The Anti-Counterfeiting Trade
Agreement - Summary of Key Elements Under Discussion
.” http://www.ustr.gov/sites/default/files/uploads/factsheets/2009/asset_upload_file917_15
546.pdf
United States Trade Representative’s Office (2009) “Letter to James Love.” http://www.keionline.org/misc-docs/3/ustr_foia_denial.pdf
March 10, 2009
United States Trade Representative’s Office (2009a) “2009 Special 301 Report.” http://www.ustr.gov/sites/default/files/Full%20Version%20of%20the%202009%20SPECI
AL%20301%20REPORT.pdf
April 30, 2009.
Weatherall, Kimberlee G.. 2009. "The Anti-Counterfeiting Trade Agreement: An updated analysis" The Selected Works of Kimberlee G Weatherall
Available at: http://works.bepress.com/kimweatherall/19
Wikipedia (2010) “Pirate Party (Sweden)” http://en.wikipedia.org/wiki/Pirate_Party_%28Sweden%29 April 21, 2010
World Economic Report (2010) The Global Competitiveness Report 2009-2010 . http://www.weforum.org/en/initiatives/gcp/Global%20Competitiveness%20Report/index.
htm
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