Bill "C-32" Redux?

If the bill unexpectedly expected for today June 2, 2010 turns out to be numbered "Bill C-32", that could be a bad omen.

Bill C-32 was the last major update to Canada's Copyright Act. It became law in 1997 - the last "act"of the the then Liberal government before an arguably unnecessary election. Literally, the last thing done before they turned out the lights before that election....

That bill was a bad bill going in that was made a lot worse after it got through a very unsatisfactory committee process that was crammed through the House and Senate in only a year.

Are those who don't know history once more condemned to repeat it...????

HK

New Zealand "rethink" of copyright law

The New Zealand government's last minute decision to suspend by order in council the coming into effect of its controversial "three strikes" or "graduated response" regime is really quite extraordinary.

Here's an editorial from a leading NZ newspaper entitled "Wise move to rethink internet law".

Here's further recent analysis, here and here.

As I noted on February 23 here:

Prime Minister John Key said today that its implementation date would be pushed back to March 27 to see if the sector can come up with a workable code of practice.

“We are hoping that by that time we will have come up with a voluntary code of practice,” said Mr Key.

If one could not be agreed then the section in question would be suspended, he said.

It will be interesting to see if the concerned parties can come up with an "agreed" voluntary code, and if they do, whether those not directly involved in the negotiations such as consumers and academics will buy into it.

Whatever happens is bound to be an instructive lesson for the UK, EC and Canada which are all being heavily lobbied by the same entertainment industry forces to enact excessive and unwise copyright protection that threatens innovation, citizens' right of freedom of expression and even basic access to the indispensable internet.

Such legislative "reforms" will no longer escape scrutiny or political consequences.

There are many reasons for Canada's slowness and deliberation in updating its copyright law - and not all of them are "deliberate." For whatever reason, we are starting to look wiser and wiser as other countries founder and backtrack and the former lead US government proponent of the entertainment industry approach, Bruce Lehman, recants his once strongly held views. Other renowned American experts, such a Bill Patry, also decry the pressures being brought on Canada by the USA through its corporate driven "Orwellian attempt" to inovke "the false use of piracy as a stalking horse for the DMCA."

There are many reasons to update Canada's copyright law. However, false alarms and guaranteed to fail solutions disingenuously advocated by special interest corporate lobbyists in the name of "artists" should not be among those reasons.

PS - the rather revealing comments of the former responsible NZ Minister and former Member of Parliament, Judith Tizard "architect of section 92a of the Copyright Act", on this unfolding fiasco can be seen here. The political lesson here reminds one somewhat of the one that can be learned from the former political career the former Canadian M.P. for Parkdale and former potential cabinet minister, Sarmite Bulte.

HK

Three Strikes Now Into Overtime in NZ

The "three strikes" battle is now into overtime in New Zealand. Suddenly, the odds have turned around from what seemed like a done deal.

The overwhelming protest against the the "three strikes" legislation due to take effect in NZ on February 28, 2009 has caused the Government to delay its implementation.

Prime Minister John Key said today that its implementation date would be pushed back to March 27 to see if the sector can come up with a workable code of practice.

“We are hoping that by that time we will have come up with a voluntary code of practice,” said Mr Key.

If one could not be agreed then the section in question would be suspended, he said.

Here's the report from 3News.

While this ain't over 'till it's over, this is already a sobering lesson to any government that thinks it can painlessly implement "maximalist" copyright "made worse in Canada" legislation based upon American law and the whining of American lobbyists or their Canadian proxies.

It is well known that the American entertainment lobby was very unsatisfied with Canada's proposed "notice and notice" regime, one of the few sound, balanced and "made in Canada" aspects of Bill C-61. In fact, this is one of the reasons why the IIPA (basically an emanation of a boutique Washington law and lobbyist firm representing certain major IP trade associations, including the RIAA and MPAA) has accorded Canada the honour of being nominated to the USTR's 301 "Priority Watch List" for 2009, as it has since Canada was promoted from the more plebeian mere "Watch List" in 2007.

The Americans have been trying to plant "three strikes" in NZ and elsewhere (e.g. France, UK) for some time. Let's hope that the Canadian government doesn't give this the time of Minister of International Trade Stockwell Day.

HK

Copyright and Canada's Trade Deficit - Cui Bono?

Speaking of international trade, Canada has now posted its first trade deficit in 32 years. The amount was $458 million. It's interesting to note that on the cultural services front, including copyright royalties, Canada has perennially run a deficit which at recent report was over half a Billion dollars a year according to Statistics Canada.

It's also interesting that Canada has 36 copyright collectives - more than probably any other country - which take in almost half a Billion dollars a year, much if not most of which leaves Canada directly or indirectly. While Canada is quite properly respectful of both adequate and effective copyright protection and the principle of national treatment, it would seem somewhat foolhardy to take deliberate steps to exacerbate the deficit in cultural services.

Perhaps it is time to take a harder look at implementing laws and setting tariffs that continue to needlessly increase this outflow of payments, which in many instances derive from rights and tariffs that either don't exist in the USA or effectively operate at far lower rates.

Perhaps it is time for policy makers to note that the most strident whining for excessive copyright protection in Canada invariably comes from certain trade associations whose major membership consists of US based entertainment companies, which would tend to have little interest in Canada creators and rather more interest in their members' stock prices and profits.

Always remember: Cui bono?

HK

Obama and NAFTA?

This story is coming back.

It seems that there is an effort in the US Congress to restrict all "stimulus" spending on iron, steel and perhaps other goods to "made in the USA" sources. That's illegal under NAFTA, perhaps under WTO, and would be a very bad way in any event to begin a new era in Canada/USA relations. NAFTA is still in full force, last I heard.

Industry Minister Tony Clement is already speaking out. Prime Minister Harper has expressed "grave concern." The issue clearly could and should arise during President Obama's visit to Canada on February 19, 2009 - if it has not been fully defused by then.

It will be really interesting to see what President Obama does about this, given his past pronouncements about NAFTA and the conventional wisdom about the Democratic Party's relative predilection for protectionism. Let's see whether there will be "change" afoot on this front.

If such a blatantly protectionist move as this is enacted into law, it will be even more interesting to see if the current Canadian government is once again in an unseemly hurry to enact the American wish list for a DMCA North "Made Worse in Canada" version of American copyright law.

There are things that need to be done to improve Canadian copyright law. But we don't need to import the worst features of American law, particularly if the Americans are going to become even greater scofflaws of international law. And we don't need to shovel money at the Americans for copyright rights that they don't provide to Canadians.

This is an old story that goes back well into the 19th century. It probably won't end soon. It is now beginning to be documented and analyzed by by scholars such as Sara Bannerman.

Let's hope that Canada learns not to get pushed around on copyright policy by the USA, as it once was by the UK. It's time for Canada to finally stand on its own feet on copyright and other fronts, and move on from being part of declining empires.

HK

More on Satire and Parody and the Need for Legislation in Canada

Prof. D’Agostino has posted a thoughtful comment, with which I respectfully disagree, on my posting from yesterday on the BC parody case. It merits a sufficiently lengthy reply to require a new entry.

I think that Prof. D’Agostino and I agree that parody (she doesn't discuss satire) should be part of the law of fair dealing in Canada, but we disagree on whether to leave this to the courts or whether it should be dealt with by Parliament.

Here is what she actually said about "legislative intervention" on the parody issue in her two recently published papers.

At page 41 of her Canadian Heritage paper, she says:

In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the UK, Gowers recommended that the government should enact a new copyright exception for parody. Before CCH many scholars posited that parodies would be infringing in Canada. Post CCH’s liberal interpretation of the enumerated grounds, it could be argued that “criticism” could now encompass parody. Michelin no longer seems good law. Indeed, parody in the US is not an automatic. Parody still requires analysis of each of the four factors as well as some use of the target to be fair. This can now also be the case in Canada and would likely not require any legislative intervention. (Footnote omitted) (emphasis added)

At page 359 of her McGill paper, which I had not seen until now, she says virtually the same thing:

In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the United Kingdom, Gowers recommended that the government enact a new copyright exception for parody. Before CCH, many scholars posited that parodies constitute infringement in Canada. In light of CCH’s liberal interpretation of the enumerated grounds, it may be argued that “criticism” could now encompass parody. Michelin no longer seems to be good law. Indeed, the protection of parody in the United States is not a foregone conclusion: parody still requires analysis of each of the four factors as well as some use of the target to be fair. Now this might also be the case in Canada, without the necessity of legislative intervention. In Canada, the issue may turn on the sufficient acknowledgment requirement (not present for research or private study, nor required in the United States). In the United Kingdom, where the same requirement exists, courts have been flexible in overcoming this hurdle in the case of criticism, review and news reporting. This flexibility or, indeed, dispensation with the acknowledgement requirement should be more warranted for parody. In parody, the link between the original and the parodic twin is often obvious since “the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” (Footnotes omitted) (emphasis added)

Prof. D’Agostino seems to prefer more of a soft law approach of “best practices.” Unfortunately, one cannot count on this achieving tangible results in Canadian courts.

She mentions Prof. Peter Jaszi’s work on best practices. I have worked with him over the years and have the highest admiration for him. However, “best practices” initiatives as developed by him and Pat Aufderheide are likely to be more successful in the USA, where fair use is codified only in the most general terms and industry practices are more likely to be accepted by the courts as fair. Indeed, that’s part of the theory and practice of the American system. In Canada, we now have the CCH decision, which follows decades of restrictive literal reading of the mostly very specific and explicit exceptions, of which the “dry erase board” takes the cake. However, as enabling and liberating as CCH seems for users’ rights, it may not permanently throw the door wide open. There are concerted efforts by lobbyists that could result in significantly undoing it, including by some who should know better. Ironically, the efforts of educational community at the management level as exemplified by CMEC and the AUCC could have this result. They don’t seem to get the message from this decision, or if they do, they don’t seem content to rely on it in any possible future litigation.

A “best practices” initiative can’t hurt and may help - as long as any initiative in this respect does not take pressure off the need to legislate. Such "best practices" could be a "complement" to legislation, as Prof. D'Agostino recognizes, but should not be an "alternative" as she also suggests at page 361 of her McGill paper. Such an initiative might provide guidelines for acceptable satire and parody practices, but should not replace legislation needed to enable satire and parody in the first place. Indeed, Prof. D’Agostino is kind enough to give me credit me for an initiative to develop guidelines at page 361 of her McGill paper. This stems from my White Paper on film documentaries from 2006. However, in that same paper, I also explicitly recommended near the top of my list of recommendations a legislative change to establish a satire and parody right. On this issue, I’m taking a “belt and suspenders” approach.

We have had this parody impasse in Canada since the 1996 Michelin decision, which a lot of people believe may have wrong been then and even more wrong now in light of subsequent case law. But it wasn’t clearly wrong and still isn’t clearly wrong. It was a reasoned and lengthy ruling by a highly respected Federal Court judge. It was never appealed. And it’s still the law in Canada, at least in the eyes of Master Donaldson in the BC Supreme Court.

One of these days, we will have a functioning Parliament again. I hope that it does its job by passing clear legislation so that Canada doesn’t stand almost alone amongst comparable countries in rejecting a parody right in the name of copyright law. Even France, which is a civiliste and copyright “maximalist” country allows for parody.

Canada can’t tolerate years of uncertainty and an uncertain outcome if this matter is left to work its way through the development of best practices and further litigation.

HK

Tony Clement - New Minister of Industry

Congratulations to Tony Clement on his appointment as the new Minister of Industry.

Minister Clement previously was the Minister of Health. As such, he would have been very familiar with the perennially intractable debates over the Patented Medicines (Notice of Compliance) (“PMNOC”) Regulations, and the extent to which big money and big lobbying have attempted to drive national and international IP policy. He would also have been involved in debates on counterfeiting, and other matters. All of this experience makes hin a logical choice to be Minister of Industry.

There are aspects of the PMNOC wars and the copyright wars that have much in common. For those interested in the history and state of play of the PMNOC regs, this very recent important judgment in Apotex v. Merck from Mr. Justice Roger Hughes of the Federal Court explains it all in a very readable and balanced way, and indeed speaks at great length about the concept of “balance” in the context of the Patent Act and PMNOC regulations.

The Minister of Industry has enormous responsibilities for both the patent and copyright files, along with many other duties that are even more visible. We wish hm well in this very important portfolio at this very important time.

HK

On Poetic Justice and Subsidies

Countless reputable pundits and reports have pointed out that the Conservative Government may have missed its opportunity to get a majority in the October 14, 2008 election because it insisted on cutting $45 million from subsidies to the arts. Whether or not that was actually what was done or intended doesn’t matter for present purposes - perception was reality, at least in Quebec.

What about subsidies to the arts? There are many justifications for them. Historically, the main ones include:
1. The arts - at least those worthy of the name - require subsidies because they are inherently elitist and expensive. Once upon a time, at least in Western Europe, the subsidies came from the Church. Then Kings and Queens and lesser royalty. Then robber barons. And now governments.
2. Why now from governments? That’s because we now have something called democracy. Overall, taxpayers have voted to have museums, galleries, operas and the other finer things subsidized.
3. Arts subsidies generate great economic returns in terms of increased economic activity in the form of multiplier effects - ranging from tourism and restaurants to lucrative employment for carpenters and electricians. People flock to New York because of the arts, not because of sandy beaches.
4. Without the elite arts, we don’t have much to be proud of or that distinguishes Canada from the rest of the world, and particularly the USA. The USA actually provides huge subsidies to the arts through its great philanthropy system, paid for indirectly by middle class taxpayers through lower taxes on rich people and the encouragement of large gifts to such organization as the Metropolitan Opera.

How does this relate to Canadian copyright law and - of all things - the current campaign of the League of Canadian Poets against Access Copyright?

The poets need to be careful what they wish for. Access Copyright’s current distribution mechanism, while deeply flawed, essentially guarantees about $500 a year to every published poet - no matter how obscure and unread (and uncopied) that person may be. A more accurate and equitable system - assuming such a thing were even possible - likely would result in much less annual income from reprography for most poets. Unless I am missing something, it would seem doubtful that the principle licensees of Access Coypright, namely schools, universities, and governments do lot of photocopying of Canadian poetry. And what is done is very likely to be fair dealing, post CCH.

This is a perfect example of where subsidies would work better than a large, rich and litigious collective with enormous overhead and legal costs that can’t measure actual entitlement. In fact, it would be much more efficient from an economic standpoint to subsidize Canadian publishers, writers and poets through an expanded and adequately funded Canada Council than through Access Copyright. The Canada Council has a long history of working well through a combination of bureaucratic support and analysis and peer review by juries.

There would be no need to subsidize foreign publishers, writers or poets, because NAFTA has an exception with respect to national treatment for cultural programs and the Canada Council has been around for decades.

In return for more generous and efficient subsidies, the Copyright Act should be amended to lighten up on statutory damages and confirm the legality of copying for research, private study and multiple copies for teaching and classroom purposes, provided that such copying does not go beyond being “fair”. The Supreme Court of Canada has put most, if not all of this, in place already with the landmark CCH v. LSUC decision. The remainder can be found in §107 of the US Coypright Act, so the US can hardly complain about such a provision.

These are ideas worth considering - now - and before another revision bill is introduced.

HK

No Making Available Right in USA + Statutory Damages Dissed

In a very important decision in the Jammie Thomas case, Judge Michael J. Davis, the Chief Judge of the U. S. District Court for the District of Minnesota has has granted Jammie Thomas a new trial.

He held that he had erred in the notorious jury instruction #15 and that there is no "making available" right in the USA. There must be proof of actual dissemination. The Court ruled that the WIPO treaties are not self executing in the USA and the statute is not ambiguous.

While the potential resonance of this in the USA and Canada is enormous, the immediately interesting aspect is the scathing commentary on the USA statutory damages provisions which resulted in a $222,000 jury award. These comments should be read verbatim by anyone interested in Canada's Bill C-61, because Bill C-61 would make such damages available for a broad range of everyday activity in Canadian households and businesses:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peerto‐peer network cases such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737, 741‐42 (D. Md. 2003) (describing defendants as a “global financial‐services firm” and a corporation that brokers securities).

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs ‐ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

It is worth noting that the RIAA brought in its lead litigator - the renowned Don Verrilli who won the Supreme Court Grokster case - to save this case. This attempt didn't work.

Judge Davis is a brave and learned judge who on his own motion re-opened this case when he sensed that he may have made a "manifest error" in his jury instructions.

Congrats to the intervenors including EFF, Public Knowledge and the professors whose research and advocacy turned this around. However, I doubt that this will be the end of the story.

And one bit of potentially bad news for Ms. Thomas is that Judge Davis did rule that "distribution to an investigator, such as MediaSentry, can constitute unauthorized distribution". That ruling is bound to be controversial.

HK

Canadian Election & Copyright

Things are starting to get interesting in the Canadian election concerning copyright and culture.

Jack Layton and the NDP are offering a $20,000 per annum copyright royalty income tax exemption. Ireland has long had a major provision exempting royalties earned by artists under specified circumstances. It seems that the Netherlands may have an even better deal, and the ever astute Bono and U2 have moved their music publishing activities to that jurisdiction.

The current Government is coming under fire for cutting $45 million a year for the arts, which is a very controversial move generally and particularly in Quebec. See this video, if you haven't already, which also makes certain points about official bilingualism in Canada.

HK

New Zealand Considers Allowing Satire and Parody

New Zealand is now considering an explicit provision in its copyright legislation to allow for satire and parody.

This follows a recent amendment in Australia.

Section 41(A) of the Australian Copyright Act as amended in 2006 provides that:

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.

The Gowers report in the UK recommended such an amendment. The US Supreme Court confirmed in the 1994 Acuff-Rose "Pretty Woman" case that a right of parody exists under the fair use provisions in American law.

That leaves Canada alone without an actual satire or parody right or a willingness to seriously consider it amongst the major common law jurisdictions to which we normally compare ourselves. Even France, where copyright is taken very seriously, has such a right.

It is understood that the main opposition to such a right comes from certain increasingly isolated voices in the Canadian music industry, who have managed to keep the issue off the table in the last two bills.

How the denial of such a right could possibly hurt composers or music publishers is difficult to understand. There is no evidence that such a right has caused any harm in the USA in the 14 years since the Acuff-Rose decision. Indeed, the satire and parody genre has been indispensable to Western art and culture at least since the time of Aristophanes in Athens in the fifth century BC.

I guess that things take a while to percolate through in Canada.

HK

RIAA Outdoes Itself

Just when you think that things cannot get much crazier in the USA, they just have.

The RIAA is now trying to sanction Ray Beckerman, a terrific lawyer in New York who has had the temerity to ably and courageously defend alleged file sharers, and to host and run an important, outstanding and richly informative blog and veritable database concerning RIAA's reign of terror litigation against some 30,000 children, dead grandmothers and perfectly ordinary folks in between.

Here's the Wired Story. Here's the motion memorandum, in which there are several references to Ray's "anti-recording industry blog."

It uses the word "vexatious" or "vexatiously" about twenty times. The RIAA must surely be shocked, shocked at the very thought that there could be "vexatious" tactics and proceedings in American courts.

And speaking of absurd, the lead lawyer on the front of the memorandum in support of the motion, which is dated September 12, 2008 is none other than Richard Gabriel, former lead litigator the RIAA and who was appointed to the Colorado Court of Appeals on July 1, 2008.

Curious, to say the least.

HK

Copyright as an Election Issue?

Gilles Duceppe, the Bloc Québécois leader, met with Prime Minister Harper on August 30. According to the CBC and the Montreal Gazette, copyright law is one of the short list of major issues on which there is disagreement.

According to the Gazette:

Abortion rights, copyright law and the approach to young offenders are also areas where the Bloc and the Conservatives don't see eye to eye, he [Duceppe] said.

The lack of support for Bill C-61 by opposition parties may be one of the reasons why we are about to have an election.

This reinforces the Don Martin story I posted about the other day.

It is not known whether the Bloc's lack of enthusiasm for Bill C-61 is because it goes too far or doesn't go far enough.

HK

Bill C-61 and the [posssible] Election

Don Martin - a columnist who is regarded by many as being very sympathetic to the Conservative Government and well informed on how it operates - has a provocative and not very favourable comment today on the rumoured imminent election.

Among other points, he praises the productivity of this allegedly "dysfunctional" Parliament and then goes on to bemoan the unfinished and important business that would be left on the table if a snap election is called. Guess which item is first on his list?

Of course the sudden demise of the 39th Parliament will leave dozens of important initiatives stillborn, including legislation dealing with copyright protection, food and product safety, youth crime, a national drug strategy and identity theft.

But unfinished business happens whenever a snap election is called.

(emphasis added)

This is a very interesting short list of priorities.

But, then we do live in interesting times.

HK

From Bananas to Brazil

Reuters reports that Brazil, having just won a trade-dispute over cotton against the USA, may follow the Antigua lead and cross retaliate on copyright protected U.S. films or computer games.

This technique started with Ecuador and bananas in 2000, and got really serious with Antigua and online gambling in 2007.

This could get really interesting.

And its also interesting that countries like Antigua, Israel, New Zealand and Brazil can challenge American copyright interests and the American government itself.

That seems to be something that the Canadian Government, still a G-8 member, does not wish to do.

HK

Labyrinth of Locks, Levies and Litigation

Re Bill C-61, I am, for once, speechless.

Actually, not entirely. Here I was on Mike Duffy Live yesterday.

But I won't be silent for too long.

I will be talking about the Bill at the CIPPIC summer series next Wednesday, June 18, 2008 at the U. of Ottawa Law School, Room 135 from 1:00 PM to 3:00 PM.

Here's the CIPPIC schedule.

For the moment, all I want to say is that this may technically be a "made in Canada" bill - but its really a "made worse in Canada" version of the discredited U. S. DMCA.

CRIA "applauds" the bill. QED.

If this bill passes, look forward to Canada as the land of the Labyrinth of Locks, Levies and Litigation.

HK

Copyright Comic

Gordon Duggan, founder of Appropriation Art, has a fantastic copyright comic book, which can be found here.

It features all the usual suspects, and I'm honoured to be included.

Quite apart from the artistic brilliance of it, it's really quite accurate and informative.

It should be mandatory reading for those responsible for this file in the government.




HK

Speed Debating with the ESA

Stevan Mitchell is VP of IP Policy wtih the Electronic Software Association. He was up in Canada lobbying the "IP caucus" on changes that the ESA thinks Canada should make in Canada's copyright legislation. The Business News Network asked us to debate the issue, which we did yesterday here.

HK

Canadian Federation of Students Copyright Brief

As advised by the Canadian Federation of Students:

Today, in advance of CopyCamp 2008, the Canadian Federation of Students released the following statement on copyright reform with recommendations including expanding the definition of fair dealing and strengthening language protecting moral rights.

English:
http://www.cfs-fcee.ca/html/english/research/submissions/copyright2008.pdf

French:
http://www.cfs-fcee.ca/html/french/research/submissions/copyright-2008-fr.pdf

I've had a quick look at this brief and it's excellent. I particularly note the CFS postiion on the proposed educational excepption:

2. Exceptions for Educational Institutions
Asking for special institutional-based exemptions is the approach that was taken in the last round of copyright reform in 1997. It resulted in a complicated, and not very useful, set of narrow privileges for educational institutions. Unfortunately, this approach is still being pushed by groups representing a narrow band of university and college stakeholders: administrators. Seeking further special exemptions that are not available to the general public is a fundamentally flawed strategy. The better option is an expanded and open-ended definition in the Act of fair dealing that reflects the principles laid out in the CCH judgement.
So - policy makers take note. Both the CAUT and CFS have clearly said NO to a special educational exception for use of the internet. That should tell you something.

Well done, CFS. If the students can do this well, what does that say for most of the  highly paid lobbyists?

HK

Uninvited to the Public Policy Forum Symposium

I have now been uninvited to the Public Policy Forum (“PPF”) IP program entitled INTELLECTUAL PROPERTY REFORM: INNOVATION AND THE ECONOMY on April 28, 2008, which will now proceed without me on the program.

It seems that strong pressure was brought to bear on PPF to have me removed from the program and that PPF capitulated.

The presentation that I would have made would have been based upon the presentation I gave at the 16h Annual Fordham conference in NYC on March 28, 2008 entitled:

WHY CANADIAN COPYRIGHT LAW IS ALREADY STRONGER AND BETTER THAN THAT OF THE USA - AND WHY THE USA SHOULD LOOK IN THE MIRROR RATHER THAN AT ITS “SPECIAL 301" WATCH LIST

Here is that paper, which documents several weaknesses in American copyright law and some 15 areas in which Canadian copyright law is already stronger and better than American law, many of which result in very substantial outflows of money to the USA. The paper also points out hypocrisy and inconsistencies in American positions on IP, including with respect to the US “301" mechanism. I was also asked to address a some points in patent and trade-marks law.

However, it seems that some interests do not want to hear about these points at this conference. I have done a lot of research in this area, and nobody has suggested that anything in the Fordham paper was inaccurate in any respect. In fact, it was well received.

I had looked forward to debating these points with Glen Bloom in particular on the panel in which I had been included, and others, who will also assuredly take a different point of view. Mr. Bloom is a registered lobbyist for Time Canada Ltd., Warner Bros. Entertainment Canada Inc., AOL Canada Inc., and The Canadian Motion Picture Distributors Association.

Since this is a program that could influence the development of Canadian law, I had hoped to provide at least some additional counterbalance to the overwhelming presence of spokespersons for multinational (largely American) based interests who will also include U.S. Ambassador David Wilkins, Michael Shapiro of the USPTO (who asked me two weeks ago for a digital copy of my Fordham paper) , and Perrin Beatty of the Canadian Chamber of Commerce, which takes a very USTR friendly view of IP matters.

I would have expected more from the PPF, based upon their own language:

The Public Policy Forum's mission is to strive for excellence in government - to serve as a neutral, independent forum for open dialogue on public policy, and to encourage reform in public sector management. Four key factors have distinguished the PPF as a unique organization on the Canadian landscape.


First, the Forum stands resolutely in its belief that high quality government is critical to Canada's quality of life as well as to our prospects as a competitive nation in the global economy. High quality government requires a fundamental commitment to excellence in public policy development and public sector management - a commitment not only by those who govern, but also by business, labour, the academic community, the media, and the voluntary sector.


Second, the PPF has established itself as a neutral, trusted facilitator. It provides a meeting place where diverse and often opposing opinions and interests can be aired openly and debated, and opportunities can be sought for mutual understanding and collaboration.


Third, unlike other public policy organizations, the PPF does not sit in judgment of what government does, but looks at how public policy is developed and how the public service is managed. This approach has enabled it to bring together Canadians from all sectors of society and political viewpoints.


Finally, the PPF lives by its mandate of seeking membership that represents all sectors in Canada.

(Emphasis added)

More in sadness than in anger, I must say that I am disappointed in the PPF for capitulating to pressure in this instance. I am afraid that this episode may prove to be very symbolic of the overwhelming efforts and forces that will be brought to bear on the Canadian Government on the IP front in the future.

Everyone is entitled to their viewpoint. So, it is particularly sad, regrettable and ultimately ironic that an institution such as the Public Policy Forum would permit such blunt interference in the marketplace of ideas in Canada.

HK

PS: Michael Geist and the incredibly widely read BoingBoing are onto this.