Pirates of the Frozen Wastes

Canada, wrote noted author and professor Hugh MacLennan, is a land of two solitudes. He was speaking of the wide and sometimes intractable chasm that separates the nation’s founding English and French cultures, but his words would be equally apt in describing a more contemporary but still uniquely Canadian dichotomy: how a nation can be lauded as a world leader in videogame development and simultaneously castigated for its reluctance to protect that industry with aggressive intellectual property law enforcement.

The videogame industry in Canada is the third largest in the world, trailing only those of the United States and Japan – a truly remarkable fact when you consider that the country’s entire population is roughly the same as that of the metropolitan area of Tokyo. Electronic Arts maintains two studios in the country, including its largest worldwide facility at EA Canada. Ubisoft has based its own flagship studio on the other side of the country, in Montreal. Rockstar maintains studios in Toronto and Vancouver, and you also may have heard of a little Edmonton-based outfit named BioWare. Independent developers like Digital Extremes, Silicon Knights, Ironclad Games and Hothead Games also flourish. In all, the Canadian videogame industry employs roughly 14,000 people across the country.

The games industry in Canada is one of the most vibrant in the world, and governments at all levels have seen its value and taken bold steps to encourage and support it. Canadian gamers are doing their bit, too, dropping $1.5 billion on hardware and software in 2007 and then ratcheting it up to $2.2 billion in 2008. All in all, it’s a situation that could well be described as “rosy” but for one minor area of concern: Canada, it seems, is a digital Barbary Coast.

“The United States continues to have serious concerns with Canada’s failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997,” said the Office of the U.S. Trade Representative in its 2009 Special 301 Report, which saw Canada added to a “priority watch list” of nations with inadequate intellectual property law enforcement that includes China, Russia, Indonesia and Pakistan. “We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties. 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.”

The U.S. government, cheered on by the Entertainment Software Association, has been making noise about Canada’s lax approach toward videogame piracy for years, but actually adding their northern neighbor to the 2009 priority watch list is nonetheless a bit troubling. Not that anyone’s taking it too seriously; the idea that Canada is somehow on par with China when it comes to blatant disregard of copyright law is laughable. But it does send the message that the U.S. administration is becoming increasingly agitated over the Canadian government’s reluctance to play ball.

The United States implemented the tough, forward-looking Digital Millennium Copyright Act all the way back in 1998, but in Canada a lack of political will and wherewithal has precluded lawmakers from enacting similar measures. Since 2004, the country has been run by feeble minority governments unwilling to take risky political gambles for fear of being turfed out by the opposition at the first whiff of failure. Copyright law reform may not sound like much of a minefield, but persuading Canadian citizens to give up the rights that they’ve enjoyed for years is a risky proposition.

The ruling Conservative government has twice introduced new legislation to update Canadian copyright laws for the digital era, but in both cases these efforts came to a premature halt when the sitting government was dissolved and new elections were held. Even in the most recent election – which the Conservative party won with yet another minority – one of the party’s campaign promises was to launch yet another copyright reform initiative: The government recently announced that it would begin a “consultation process” later this month with an eye toward tabling a third bill by the end of the year. Despite the pressure from south of the border, however, there’s no assurance that the latest attempt to pass new copyright legislation will be any more successful than the previous two.

Support and opposition for the measure is divided along familiar lines. The MPAA, RIAA and Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) are all in favor of the bill, while surprisingly fierce opposition has formed out of an eclectic mix of consumers groups, software developers, university professors, the Canadian Library Association and tens of thousands of individual citizens who fear the imposition of DMCA-style copyright laws will hamper innovation, fair use and turn countless numbers of otherwise law-abiding people into criminals.

In fact, the DMCA has become the crux of much of the opposition to similar efforts in Canada. By and large, the experiences precipitated by the DMCA have not been entirely positive, a fact that Canadian copyright activists have been quick to latch onto. In the short documentary Why Copyright? by University of Ottawa professor and copyright activist Michael Geist, Osgoode Hall Law School Professor Carys Craig says, “I think what we can safely say is that the U.S. model is not an ideal one, and that Canada should not really be looking to the U.S. as an example of what to do but perhaps as an example of what not to do.”

But the failings of the DMCA do afford Canada a luxury the U.S. didn’t have: While critics argue that the Clinton administration leaped into a heavy-handed digital copyright scheme without enough consideration for the possible long-term consequences, Canada has unquestionably benefited from the opportunity to observe the American experience that resulted. The chilling effect on a wide range of legitimate behavior – and the fact that many law-abiding citizens are ultimately forced to choose between being deprived of some very basic consumer rights or breaking the law – has not gone unnoticed.

And regardless of the efficacy of the DMCA, American pressure to enact Canadian legislation is somewhat counterproductive. More than a century of sleeping next to an elephant has left Canada with a very fragile national ego, and as a result, a core element of the Canadian condition is a knee-jerk instinct to differentiate ourselves from Americans wherever and whenever possible. It’s not a behavior unique to beer-swilling Hockey Night fans, either (which, truth be told, is all of us). Canadian political parties of all persuasions have taken pains over the decades to ensure they maintain a palatable distance from their U.S. counterparts. That habit is so deeply ingrained into our psyche that the mere suggestion of pressure on the political process is enough to raise alarms. Professor Carys described the U.S. model of copyright reform as “not an ideal one” because of its many inherent flaws and heavy predisposition toward copyright holders; many less thoughtful Canadians are more likely to see it as just more American bullying and bullshit.

Canada has been fairly laissez-faire with regard to intellectual property laws, but it’s hard to get around the fact that, in its own clunky way, the system works. There is piracy, yes, but it’s fairly consistent with other Western nations. According to the BSA’s (Business Software Alliance) 2008 Global Piracy Report, published in conjunction with research firm IDC, Canada’s piracy rate of 32 percent is among the 25 lowest in the world, below countries like France (41 percent), Spain (42 percent) and Greece (57 percent) and drastically lower than high-piracy countries like Russia (68 percent), Thailand (76 percent) and China (a staggering 80 percent). Meanwhile, Canada is home to a game development industry that’s second to none and a consumer base that enthusiastically supports it. It makes one wonder if, at the end of the day, it’s a mistake to think that Canada needs to catch up with the rest of the world. Maybe the rest of the world needs to start paying attention to Canada.

Andy Chalk is a Canadian freelance writer and lifelong videogamer. Check out his column, The Needles, every other Tuesday here at The Escapist, and contact him at [email protected].