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Cablegate: Ipr Filesharing Appeal: Rights-Holders Lost A

This record is a partial extract of the original cable. The full text of the original cable is not available.

261846Z May 05





E.O. 12958: N/A



1. (SBU) Summary: The Canadian Recording Industry
Association (CRIA) is claiming a victory in an Appeals
Court's rejection of last year's decision by Judge von
Finkenstein that filesharing does not constitute
infringement. CRIA and the other rights-holding plaintiffs
(the largest musical providers in Canada, who collectively
own Canadian copyrights in more than 80 percent of the sound
recordings sold in Canada) plan to again seek the names of
filesharers, and the appeals decision includes a ringing
endorsement of the importance of intellectual property rights
(IPR). Embassy rights-holder contacts are encouraged, both
by the "trashing" of Judge von Finkenstein's earlier decision
and by the court's guidance on future efforts to obtain the
names of filesharers. End Summary.

2. (SBU) Background: Motions Court Judge von Finckenstein's
decision last year in the case in which CRIA sought the names
of filesharers that "downloading a song for personal use does
not amount to infringement" shocked the IPR community. Judge
von Finckenstein added that "...(t)he exclusive right to make
available is included in the World Intellectual Property
Organization Performances and Phonograms Treaty...however
that treaty has not yet been implemented in Canada and
therefore does not form part of Canadian copyright law."
This apparent loophole which would seem to make peer-to-peer
filesharing legal in Canada threatened to make Canada a
piracy haven and added urgency to industry calls for
implementation of the already-signed WIPO treaties. The
government has said that it will present legislation amending
the Canadian Copyright Act (ref Ottawa 1168), however this
legislation has not yet been drafted. In the absence of
legislation implementing WIPO, CRIA and others decided to
appeal Judge von Finkenstein's decision and attempt to
require ISPs to provide the names of filesharers so that
rights-holders can sue to stop infringement.

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3. (SBU) The Appeals Court decision upheld the original
court's refusal to order ISPs to provide the names of
infringers to the plaintiffs because the Appeals Judge found
that the evidence against the unknown infringers was
technically inadequate: among other things, key affidavits
had been signed by the wrong person. However, the court
dismissed the appeal "without prejudice to the plaintiffs'
right to commence a further application for disclosure", and
the plaintiffs are already planning their next attempt to
obtain names of filesharers.

4. (U) On the more important and far-reaching question of
whether filesharing constitutes infringement, the
rights-holders consider the decision to be an unalloyed
success. The appeals judge explicitly refuted Judge von
Finkenstein's statements on filesharing and concluded that
"...if this case proceeds further, it should be done on the
basis that no findings to date on the issue of infringement
have been made."

5. (U) Finally, in a development which bodes well for IPR
rights-holders in Canada, the Appeals decision included a
ringing endorsement of the principle of intellectual property
rights. The judge stated: "Copyright law provides
incentives for innovators--artists, musicians, inventors,
writers, performers and marketers--to create...Individuals
need to be encouraged to develop their own talents and
personal expression of artistic ideas, including music. If
they are robbed of the fruits of their efforts, their
incentive to express their ideas in tangible form is
diminished." Addressing the issue of IPR in the internet
age, the judge stated, " must not be allowed to
obliterate those personal property rights which society
deemed important. Although privacy concerns must also be
considered...they must yield to public concerns for the
protection of intellectual property rights in situations
where infringement threatens to erode those rights."

6. (SBU) Post has seen CRIA's initial in-house assessment of
the decision, which is enthusiastically positive. Post will
continue to press for progress on IPR, following CRIA's
subsequent court actions and encouraging action on
legislation. One potential hurdle to legislation (the
possibility of elections following a no-confidence vote) has
been delayed if not eliminated, and Post will use the Special
301 out of cycle review as well as the SPP as ways to engage
the Canadian government on IPR issues (ref Ottawa 1305).

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