Update on Getty Images

Getty Images is still threatening people, so it seems from comments that continue to come in on my earlier posting on Watching Getty Images Watching Canadians.

Here's an update to November 11, 2008.

To date, Getty Images has still launched only one copyright infringement action in the Federal Court in Canada, according to the Federal Court’s website as of November 11, 2008. That was on March 28, 2008. It is possible that it has sued in one or more provincial courts, but this would not make a lot of sense if it is planning a cookie cutter approach.

Masterfile, another stock photo company, has filed several actions in the Federal Court, many of them discontinued, which suggests that there may have been a settlement in such instances. I haven’t actually looked at any of the files, since details are not available online. Masterfile filed several statements of claim on January 22, 2008. As of November 11, 2008 there is nothing more recent on the Federal Court website.

An American law firm has posted a couple of comments on my blog looking for business from recipients of letters from Getty.

I have taken these posts down because Canadians may not be aware that an American law firm cannot act for them in a Canadian court. Furthermore, Canadian and American copyright law differ in many respects.

Canadians who are looking for advice should contact David Fewer at the wonderful Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (“CIPPIC”) at the University of Ottawa

His phone number is 613-562-5800 ext. 2558.

Canadians should be aware of the provisions regarding statutory minimum damages. These can range as high as $20,000 per infringed image. But more importantly, a judge can lower the amount to as little as $200 per infringed image, or even less if there are multiple images involved. Here’s the provision in the Copyright Act:

Statutory damages


38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.


Where defendant unaware of infringement


(2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.


Special case


(3) Where


(a) there is more than one work or other subject-matter in a single medium, and


(b) the awarding of even the minimum amount referred to in subsection (1) or (2) would result in a total award that, in the court's opinion, is grossly out of proportion to the infringement, the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.


HK

Apotex v. Sanofi - Canadian Supreme Court Decision

Last week on November 6, 2008, the Supreme Court of Canada delivered it judgment in an important patent case concerning "selection patents." The appeal was heard on April 16, 2008.

My colleague, Susan Beaubien, has a very useful analysis of the decision here.

HK

WIPO Copyright Activity

The week long SCCR meeting at WIPO has just concluded and William New reports on it in some detail here.

The proposed broadcasters' rights treaty is still on the table, as is the propsoed audiovisual performances treaty.

The good news is that there appears to be solid interest in exceptions and limitations, and a possible treaty concerning the rights and needs of blind persons.

The latter is a concrete project that could have a positive outcome in a finite time, and would be a good example of what WIPO can do well and why a revitalized WIPO is essential to a balanced international IP system.

HK

Does Apple Compete with IBM?

Does Apple compete with IBM?

According to a former IBM employee recently hired by Apple:

"To the best of my knowledge, IBM does not design, manufacture or market consumer electronic products," says Papermaster, in a court document filed Thursday. "Instead, IBM focuses on high-performance business systems such as information technology infrastructure, servers and information storage products, and operating systems software," Papermaster notes.

"Apple, on the other hand, is in the business of designing, manufacturing and marketing consumer-oriented hardware and related products," says Papermaster, in documents filed in U.S. District Court in Manhattan.

A district court in the USA doesn't agree.
Doubtless, more to come.

HK

What Happened to SNL in Canada?

It now seems that you can't get there from here when it comes to getting from Canada to Saturday Night Live on the Web.

One gets an error message related to "location." Let's hope it's just a temporary technical glitch.

But somehow, I sense overly zealous copyright lawyering and geolocation software at work here.

Too bad, so sad.

HK

PS - Hat tip to Michael Geist - Canwest Global TV seems to have locked up the keys to SNL online for Canadians. But we can't get the same material as our American friends and you have to suffer through third party ads....See this.

Thank goodness this wasn't in place before the US election.

Yet another demonstration of how the Internet is going backwards to old business models, such as cable TV.

Constitutional Challenge to RIAA's statutory damage claims...

The well known Harvard professor Charlie Nesson is leading the charge on a challenge to the constitutionality of the statutory damage provisions in the US Copyright Act.

Here's his latest filing and a brief commentary.

HK

The Obama Effect on IP

IP-Watch has a good analysis of the likely direction of the Obama administration here. IP-Watch also speculates on some Obama appointments here.

Although a Democratic administration is likely to be very sympathetic to the wishes of IP owners and rightly so, there is reason to hope that the Obama administration will take a more nuanced approach than we've seen in the past as a result of such factors as:

• Obama's commitment to affordable health care
• Obama's commitment to improving child education in order to improve competitiveness
  
• Obama's experience as an academic
• the very Internet savvy campaign he ran
• the need to balance traditional Democrat protectionist instincts with the pressing need to to restore America's lead in high tech R&D and even manufacturing
  
• the need for the USA to regain respect internationally by informed policy leadership and not by brute force trade hegemony
• the need to satisfy likely great expectations from Africa and developing countries in other regions
  
• more intellectual rigor and honesty in separating bogus terrorism and exaggerated counterfeiting issues from real trade and IP issues.
  

It's worth noting that Bill Clinton's IP point man, Bruce Lehman, has stated that the DMCA "didn't work out very well" under the last Democratic administration. Hopefully, Bruce's soul searching and public confessions will impart valuable wisdom to the new Democratic White House, whether or not he has part to play in it.

As I say, and without being political, there is now indeed plenty of reason to hope.




HK

WIPO SCCR Meeting Geneva November 3-7, 2008

The WIPO Standing Committee on Copyright and Related Rights (SCCR) will be meeting next week in Geneva. It gets together typically about twice a year. The agenda and documents are available here.

The Chairman of this Committee for the past many years has been Jukka Liedes of Finland, who has invested much effort in trying for about a decade to get through a Broadcasters' Rights Treaty at WIPO - for which there is little consensus but which is still on the agenda.

He summarizes the latest state of play as this in his "informal paper", which is presumably somewhat more formal than his many previous "non-papers."


• The following two options arise from the assessment above in this informal paper:

A – A continuation of the process

- Another try could still be suggested on the basis of the document SCCR/15/2 rev.

- In addition, discussions could be based on informal papers.

- This endeavor should be open, inclusive and flexible.

- In the end, there could be an understanding that a new treaty might be established by a clear majority.

B – A possible new avenue

- A model based roughly on Articles 2 and 3 of the Geneva Phonograms Convention of 1971 could be envisaged; similar to that of the Brussels Satellite Convention.

- That model is different from those included so far in the working documents of the SCCR.

- That model could achieve the main objective of an international protection and the prevention of signal theft.

- To provide the delegations with an idea of the structure of such an option, its core provisions might be as follows:

“The Contracting Parties shall protect broadcasting and cablecasting organizations, who are nationals of other Contracting Parties, against unauthorized acts, including:

- retransmission

- fixation

- [other acts that might be agreed on].

The means by which this Treaty is implemented shall be a matter for the domestic law of each Contracting Party. The means shall be adequate and effective, and shall include one or more of the following:

- protection by means of copyright, rights related to copyright, or other specific rights;

- protection by means of the law relating to unfair competition or misappropriation;

- protection by means of administrative legislation or penal sanctions.”

• Finally, if after consideration of the options above (A/B) and possible other options, it will not in the present situation be possible to decide on the establishment of a new treaty, the SCCR should end these discussions through an express decision in order to avoid further spending of time, energy and resources to no avail. Such a decision could include a timetable for later revisiting and reconsidering the matter.


There are other perhaps more urgent and important issues on the table, such as limitations and exceptions. Moreover, various spokespersons for the blind are pushing hard to get WIPO to do something specific in their interest. See, for example, this initiative from Canada's own CNIB.

William New of IP-Watch provides more information here.

Under the new leadership of its new Director General, Francis Gurry, WIPO can potentially accomplish a great deal that could benefit many if not most sectors and countries that are concerned about IP. Let us hope that the SCCR can move beyond the largely unproductive past decade into areas where work should be done and positive progress seem more likely.

The Canadian position(s) going into this meeting are not known.

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

A Victory for Freer Expression Online in Canada

Off topic but important news:

The courageous Jon Newton and his excellent libel lawyer, Dan Burnett, have won an important victory in BC against Wayne Crookes. The Court held that the mere provision of a link to a defamatory third party website without a positive editorial comment on that material:

• does not lead to a presumption that persons read the contents of the website and used the hyperlink to access the defamatory words, and that
• reference to an article containing defamatory content without repetition of the comment itself or endorsement of it should not be found to be a republication of such defamatory content

Here's the judgment.

Essentially, the Court held that a link is much the same as a footnote, except a lot more convenient.

Congratulations to Messrs. Newton and Burnett.

HK

Google Settlement

Big news from the USA - re the Google Books litigation.

There is a big settlement. Here are some links:

Some details about the agreement is now online here.

A summary of the agreement is available here.

The agreement can be found here.

Those who own or think they may own a U.S. copyright interest
implicated by the agreement may wish to look here.

As for Canada, Google advises:

International Impact

Copyright holders - located in the US and internationally - may have their books included in this agreement. As part of a worldwide notice program, the settlement administrator will be reaching out to authors and publishers around the world to tell them about their rights under the settlement, which include the right not to have the settlement apply to them and the ability to register with the Book Rights Registry to control and profit from online access to their books.

However, because this agreement is the result of a US lawsuit, it only affects the Book Search experience for users accessing the site in the US. Outside the United States, the users’ experience with Google Book Search will be unchanged, unless the offering of such products and services is authorized by the rightsholder of a book.

More to come when more is known...

HK

SOCAN's Tariff 22 - the latest chapter

The Copyright Board has finally released its decision this past Friday, October 24, 2008 on the remainder of SOCAN’s Internet based “Tariff 22". This covers the period of 1996-2006. Here’s the decision. This is actually the second part of the second phase of the Board's reasoning on Tariff 22. The first part of the the actual tariff came out just over a year ago on October 18, 2007 and I blogged about it then here. That decision is available here. The hearings that gave rise to these two decisions took place in April and May of 2007.

The Board rejected SOCAN’s approach that would have seen a tariff on “uses” and, instead, imposed a tariff on “users”. In principle, according to the Board, SOCAN’s approach would actually have been more user friendly.

The Board evidently spent a lot of time on number crunching and considering a mound of evidence and came up with results that may or may not please the affected users. It is too early to say. The Board is clearly cognizant of the need to comply with recent appellate jurisprudence requiring that it provide adequate reasons for its calculations. The Federal Court of Appeal will rarely, if ever, set aside the Board’s rate calculations, unless there is inadequate reasoning to support them.

The gist of the rates is as follows, according to the Board:

• For commercial and non-commercial radio stations that already pay royalties to SOCAN for their conventional activities, the same rates are certified for their Internet activities. These rates are, for commercial radio, 1.5% of Internet-related revenues for a low music use station and 4.2% for the others. Non-commercial radio pays a rate of 1.9% of its gross operating costs. The rate bases are further reduced by at least 50% to account for the fact that not all of a radio station’s web pages contain sounds.
• For commercial, pay and specialty television, pay audio services and satellite radio services, the rates established are also the same as what these users already pay or will be paying to SOCAN. These rates are 1.9% for television and 12.35% for pay audio services (the rate for satellite radio has yet to be set). The rate base is also further reduced in the same way as radio.
• The Canadian Broadcasting Corporation (CBC), TVOntario and Télé-Québec will pay a proportion of 10% of the amounts they already pay to SOCAN, with an additional reduction of at least 85%. For the year 2006, this corresponds to amounts of approximately $125,000 for CBC, $4,500 for TVOntario and $2,700 for Télé-Québec.
• Websites that play music, but do not have a conventional counterpart, such as the Iceberg radio site, will pay a rate that depends on the amount of music they use: 1.5% with music use of 20% or less, 4.2% if music use is more than 20% and less than 80%, and 5.3% if music use is 80% or more. Again, the rate base will be discounted by at least 50%.
• Finally, the starting rate for game sites that use music will be 0.8%.

The Tariff is retroactive for ten years back to 1996, which is, in effect, twelve years because the rates for 2007 and on are likely to go up (they rarely, if ever, go down). The Board notes that “Only SOCAN can decide not to collect royalties retroactively.”

There may be legal arguments that the Board lacks jurisdiction to impose such retroactivity. However, the Board clearly doesn’t see it that way.

Of course, the main news is actually what was NOT decided - which pertained to “other sites.” These could range from little personal blogs to such mega sites as YouTube, Facebook, and MySpace. Other potentially affected sites could include countless restaurants, car manufacturers, retailers, film producers, and others that may use music on their websites for the purpose of selling other goods and services. SOCAN’s wording for this category was extremely vague and few if any of the potentially affected parties objected or maintained their objection. This is not surprising, given the usually enormous costs of participation with objector or even intervener status in Board hearings.

The Board decided in the end NOT to certify a tariff on “other sites” at this time. This part of the tariff has been rejected in a 2 to 1 split decision.

The majority said that it would not certify a tariff for these “other sites’ because:

• It would be unfair to reach back ten years to target hundreds of thousands of users for uses that are “extremely modest or that attract little or no attention.”
• In the absence of any reliable evidence for such disparate uses, any tariff would have to be “de minimis”;
• Social networking and similar sites are quite new and any music use would likely be quite modest; and,
• In the absence of sufficient evidence, the Board could not provide reasons that would satisfy the Federal Court of Appeal.

However, note that the majority said that the “parties will be expected to provide the necessary evidence to allow the Board to assess the situation.”

A dissenting member disagreed with the majority’s analysis of the “other sites”. Her reasons, at page 47, suggest that she would have been inclined to set a tariff for at least the “uses” that would generate significant royalties. She gives MySpace, Facebook, Google and Yahoo as examples. But she also concedes that SOCAN offered “no evidence” that would allow for a tariff to be set for “MySpace”, for example. She is also expecting users to be present at the next hearing. She says at para. 47 “I would expect users or their representatives to participate in the next proceedings to provide the Board with the information it requires in order to property assess the situation.”

The issue of “other sites” has clearly NOT gone away. Since a number of important parties have not filed objections for 2007 and 2008 or even 2009, the Board will likely permit full fledged interventions from any latecomers and hear all of these years together. The Board has virtually invited this to happen. There are a number of very good arguments that can be made against the incredibly vague wording that SOCAN has used over the years, and the absurd results to which it could lead.

For example, imagine the potential liability of YouTube or Amazon or a traditional large retailer selling widgets online based upon “ the greater of 10% of the Gross Revenues earned by the Site or Service or 10% of the Gross Operating Expenses of the Site or Service.” I should disclose that I filed written submissions on issues regarding these “other sites” pursuant to the Board’s Directive on Procedure on behalf of Retail Council of Canada.

There is a real possibility of more judicial review of Friday’s ruling. Thus, a thirteen year old tariff may still be far from a done deal.

Once again, the question arises as to why these things take so long, cost so much and still leave many affected parties out of the matrix. Indeed, the Board found that “It is through no fault of SOCAN (or the users) that the matter took as long as it did to reach a conclusion.”

This is not about “fault” or blame. It’s just that there’s got to be a faster way of dealing with these things, and Chairman Vancise is clearly seized of this problem. As he has stated,

If the Supreme Court of Canada can render a decision within six months of a hearing, there is no reason why this Board cannot do the same. My goal is to see that this occurs.

In fact, despite some exceptions, most litigation - even very complex cases - in Canada can go from start of the proceeding at the trial level to final judgment in the Supreme Court of Canada (if it gets that far) in about five years or even less. Given the rarity of Supreme Court involvement, most litigation is actually concluded much faster.

HK

$54 million pants suit appeal

Ex-Judge Roy Pearson of Washington, DC apparently had his appeal heard today in his $54 million dollar great American pants suit.

One must admit that his quest for excessive damages almost makes the RIAA look reasonable.

He does seem to be rather unsuited for the bench. Moreover, as one reader of the WSJ blog noted:

Maybe Pearson will finally get his comeuppants.

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

Audting Access Copyright?

As I mentioned yesterday, the League of Canadian Poets is on the case about Access Copyright, a collective that has over $37 million in most recently reported revenues, almost all of which comes from taxpayers. The distribution mechanism to actual creators has been severely criticized. The League of Canadian Poets is apparently asking for Canadian Heritage to audit Access Copyright.

It might be noted that Access Copyright had reported expenses of over $7 million in its most recent reported year and reports expenditures in 2006 and 2007 of almost $2.5 million for “Copyright Board filings.”

Offhand, I don’t see where Canadian Heritage would have any legal authority to “audit” Access Copyright. That said, the Federal Government has been an early and enthusiastic licensee of Access Copyright, and its early willingness to pay very substantial licensing fees helped get Access Copyright - then known as CanCopy - up and running. The Federal Government currently should arguably be paying much less to Access Copyright than in the past because the Supreme Court of Canada has ruled that “research” can be fair dealing and it would seem obvious that much if not most of the reprography that goes on inside Government would be for research purposes. It is not known whether the Feds have played hardball on this issue, or whether they continue to give millions to Access Copyright with little questioning as to why. Unfortunately, Access Copyright has abandoned its practice of more granular reporting of its licensing income that would provide more information as to the type of license and licensee, i.e. how much derives from schools, post secondary, public sector and corporate.

The point is that there is no reason why the major licensees of Access Copyright, such as the Federal Government, the universities, and the K-12 schools could not demand more transparency, along the lines set forth by Prof. Martin Friedland. There is no reason why these groups couldn’t insist upon an annual published audit that deals with specified parameters. I don’t mean the pro-forma type of statements that simply vouch for the annual published financial statements, which disclose very little.

Moreover, I have argued that the Copyright Board arguably could - if it chose to do so - exercise far greater oversight in situations such as this. This is what I have said in a recent paper, just published in the Intellectual Property Journal and available in essentially the same version here:

Oversight of Collectives

It is arguable the Board has sufficient powers under current legislation and in view of the cases mentioned above and many more to exercise more power of oversight over the internal workings of collectives. This could include:

• distribution mechanisms

• review of administration costs

• transparency and reporting of key financial information, including management, legal and
other professional expenses.

There is little point in imposing tariffs that are high by any standard, and in some cases relatively higher than in countries such as the USA, when the funds are often distributed years late and in a mystical manner and method, if indeed there is any adequate method. Such a tariff may not have the appearance of being “fair and equitable.”

It is an insufficient answer to rely on member democracy and accountability, since there is very little of this in the corporate governance of many of Canada’s collectives. Even the provision of a requirement of minimum transparency would serve to enable at least the chance for assertion of members’ rights and better governance.

The Board arguably could and should scrutinize the expenditures and efficiency of collectives.
Collectives exist not to reward their staff, consultants and lawyers but to collect and to distribute the royalties earned and deserved by their members. If Parliament is going to empower these collectives with monopoly rights, there needs to be sufficient accountability. This is an area where the Board could potentially regulate to some degree. If the Board believes it lacks jurisdiction to do so, then the Governor in Council or Parliament should do what is required.

To the Board’s credit, it has on occasion told collectives to take better care of certain classes of members. For example, in 1994 it told SOCAN that the proposed concert tariff was too low to be in the interests of its members:

The Board hopes, however, that SOCAN will give due consideration to filing its
proposed concert tariff for 1995 at a rate higher than that in the SOCAN/CAMP
agreement. The Board is of the view that unless this course is followed, the
interests of SOCAN's members will not be properly served.

Recently, the Board looked out for the interests of the independent members of the Canadian
Recording Industry Association (“CRIA”) and was decisively upheld by the FCA in brief reasons delivered from the bench.

Other thoughts will follow on this and related subjects. There is little point in Canada having the most copyright collectives of any country and the largest and best resourced copyright tribunal if the system does not do a commensurately good job for creators, users, and, to the extent necessary, others with legitimate economic interests based upon copyright. There are some changes and improvements that need to be made.


HK

Improper DMCA Takedowns and US Presidential Campaigns

EFF - bless them - is onto the use of improper DMCA takedown notices that stifle free speech in the course of the current US Presidential election campaign. Apparently, major networks are objecting to the use of very short clips incorporated into political speech and appearing on YouTube.

Here's the EFF take.

One of the few silver linings on Bill C-61 was that it included a "Notice and Notice" regime and not a "Notice and Takedown" mechanism, as in the US legislation. So, this kind of stuff would presumably not happen so easily in Canada.

HK

Creators v. Access Copyright

The League of Canadian Poets is on the attack against Access Copyright, an organization with more than $37 million in annual revenues believed to derive by far mostly from the public sector.

Here's a story from Quill and Quire that starts out as follows:

Over the past few weeks, the League of Canadian Poets has been publicly accusing Access Copyright – the association responsible for collecting photocopying fees for copyrighted materials and distributing the proceeds to authors and publishers – of failing to fulfill its mandate. The League’s press release states that “only a handful of large publishers are receiving significant benefits,” and that “writers and the small presses that publish most Canadian culture receive virtually nothing from the system.”

You can expect to hear more about Access Copyright when the Copyright Board finally releases its long awaited decision on Access's K-12 tariff for reprographic reproduction for 2005-2009. This hearing before the Copyright Board was held in June, 2007 with some follow up issues.

There is considerable suspense about this case for a number of reasons, including the fact that it is taking so long to hear from the Board when Chairman Vancise has previously announced a benchmark of six months pendency. In August of 2006, he stated in a speech:

If the Supreme Court of Canada can render a decision within six months of a hearing, there is no reason why this Board cannot do the same. My goal is to see that this occurs.

Chairman Vancise has also suggested in respect of this case, as anyone concerned with it will understand, that fair dealing "is an issue which will have serious implications and not one of course which I am prepared to discuss at this time."

Finally, afficianados of Access Copyright may wish to re-read Prof. Martin Friedland's critical report on Access Copyright's Distribution methodolody - or lack thereof. Regardless of one's opinion of Access Copyright, it is a good thing that this report was commissioned and made public, even if in redacted form.

HK

US v. China - WTO

GENEVA (Reuters) - The World Trade Organization (WTO) has found in China's favor in two out of three counts in a case involving protection of intellectual property rights brought by the United States, a trade source said on Thursday.

However, in Washington a U.S. trade official said the United States had won two out of three claims in the landmark case...

Looks like the parties can't even agree on who won or lost...

HK

Update: Here's some more detail from Forbes.

Liberal Position on Bill C-61

According to a Toronto Star report of an interview with Denis Coderre, the Liberal Heritage critic:

The Liberals would also ditch the already-tabled Copyright Bill and bring forward new legislation to protect the rights of both creators and consumers of digitized music, films and other intellectual property, Coderre added.

"We will work inclusively with the stakeholders involved in the copyright issue to protect Canadian content on the Internet, and to expand its use as well."

HK

Conservative Party Platform on Copyright

Today's Conservative Party platform states:

A re-elected Conservative Government led by Stephen Harper will reintroduce federal copyright legislation that strikes the appropriate balance among the rights of musicians, artists, programmers and other creators and brings Canada's intellectual property protection in line with that of other industrialized countries, but also protects consumers who want to access copyright works for their personal use.

We will also introduce tougher laws on counterfeiting and piracy and give our customs and law enforcement services the resources to enforce them. This will protect consumers from phoney and sometimes dangerous products that are passed off as reliable brand-name goods.

(emphasis added)

It's unclear whether a Conservative government would simply "reintroduce" Bill C-61 "as is", or whether it would come up with something that, unlike Bill C-61, actually does strike "the appropriate balance among the rights of musicians, artists, programmers and other creators and brings Canada's intellectual property protection in line with that of other industrialized countries, but also protects consumers who want to access copyright works for their personal use."

That's not a bad mission statement for a new copyright bill - but does not explicitly take into account that fact that the Supreme Court of Canada has confirmed that commercial parties, too, have a right as users to access works for research purposes in a manner consistent with fair dealing.

The reference to "customs and law enforcement services" suggests that the still secret ACTA draft treaty is on the mind of the Conservative Party.

Thus far, the Conservatives and NDP have explicitly referred to copyright in their platform. The Liberal Party has not done so.

HK

Speeches by Chairman of Copyright Board Now Posted

The Copyright Board has recently posted on its useful website three 2008 speeches by its Chairman, Justice William Vancise. These are as follows:

Ottawa, January 18, 2008 The Law Society of Upper Canada,12th Annual Intellectual Property Law Year in Review in which Justice Vancise:
• comments on several decisions of the Federal Court of Appeal and the Supreme Court of Canada dealing with “standard of review”. Note that this paper was given a few weeks before the important decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick 2008 SCC 9, which is noted in a footnote.
• comments on the Federal Court of Appeal’s decision in CAB v. SOCAN 2006 FCA 337 involving the radio tariffs wherein the Board was criticized for the inadequacy of its reasons.
• comments on challenging by way of judicial review positions conceded by counsel before the Board. (This is clearly a reference the Ringtones case, wherein the objectors conceded “that downloading a ringtone is a communication by telecommunication”)

New York, March 28, 2008 Fordham Intellectual Property Law Institute Annual Conference in which Justice Vancise:
• considers the potential impact of the SCC’s Dunsmuir decision.
• comments further on the issue of adequacy of reasons and in particular on the Federal Court of Appeal’s reasoning in CAB v. SOCAN 2006 FCA 337 and Apple, Retail Council, et al v. CCPC 2008 FCA 9 heard on January 9, 2008 with reasons delivered the next day that quashed the Board’s decision to proceed with a hearing for a tariff on digital audio recorders.

Cambridge, Ontario, June 20, 2008 Broadcasting Invitational Summit in which Justice Vancise:
• comments on broadcasters’ concerns about “excessive multiple tariffs” and compares the Board with the CRTC.

These speeches by Justice Vancise are unusually frank and, frankly, unusual with respect to comments on certain decisions of the Federal Court of Appeal and the Supreme Court of Canada, which are the Courts that review the Copyright Board’s decisions. Accordingly, these papers are not only very interesting and important reading but are a “must” for all who need to know about the work of the Copyright Board and how its decisions are reviewed.

HK

Update on File Sharing Litigation

The EFF has a well documented and up to date analysis of the RIAA's litigation campaign against ordinary folks and how and why it hasn't worked.

HK

RCMP Comments in USA on Canadian Copyright

Jack Kapica of the Globe and Mail has an interesting story about recent comments by an RCMP spokesperson at an American Bar Association conference in San Francisco.

HK

To Plagiarize, "Research" or "Shade Your Eyes"?

There has been much discussion today of plagiarism in the context of the Canadian election, with accusations reported around the world of plagiarism of Australia's former Prime Minister John Howard concerning the war in Iraq in a 2003 speech in Canada's Parliament. There have even been suggestion that the impugned wording, or at least the "talking points", came directly from Washington, which would at least obviate the accusation of plagiarism of Mr. Howard. This has been denied, on the basis that "it was “ridiculous” to suggest the Conservatives were directed by George W. Bush and the Republicans or provided with talking points on Iraq." In any event, an individual speech writer has taken responsibility for the 2003 speech and stated: ""I apologize to all involved and have resigned my position from the Conservative campaign."

On a lighter but trenchant note, never has there been a a better satirical exegesis of the issue of plagiarism than from Tom Lehrer, the 20th Century Mozart of satire, parody and perfect commentary of all things intellectual and political. Hear it here.

Tom - where are you now when we really need you again? Tina Fey is a great satirist and parodist. You could do even better... We live in interesting times, Tom. We miss you and need you...

BTW, one of my fav blogs has picked up on my campaign for a satire and parody right in Canada. See here on IPKat.

HK

NDP on Copyright and the 2008 Election

The subject of copyright still remains apparently a non-issue at the leader level.

The NDP does at least mention it in their Platform, as follows:

Ensure that new copyright reform legislation fairly addresses compensation for artistic creators and includes proper input from all affected stakeholders including: arts/artist groups, educators, software innovators, consumer groups and ordinary Canadians.

(BTW, I said in the first version of the post that the document wouldn't allow for copying and cut and paste convenience. That has now changed and the document now does allow for it. Maybe somebody in the NDP war room actually read my blog ;) Whatever, thanks for the progress.)

The Liberals don't even mention the subject, and their platform was never locked up.

There's a lot of general criticism that there is so little discussion of actual issues going on. One would have thought that Bill C-61 would be a good issue to discuss, given the potentially severe consequences in terms of civil and criminal liability for Canadian individuals and businesses.

HK

VANOC's Excessive IP Efforts

There’s a big fluff over VANOC’s trade-mark application for WITH GLOWING HEARTS. See the Globe and Mail story, for which I was interviewed, here.

Far be it from me to defend the overly zealous - indeed excessive - Vancouver Olympic IP effort, but actually, it was a "normal" trade-mark application. However, enough defence. The application does have an abnormally excessive and absurd list of wares and services, especially considering the nature of VANOC and what the Olympics is all about.

The list includes everything from automobiles, to diesel fuel, to circuit breakers and pages and pages of other seemingly random stuff that suggests a massive merchandising and endorsement scheme afoot. But would anyone really

As for taking of public domain phrases for use as a trade-mark, I don't see a problem in principle.

If someone decided to sell cat food under the trade-mark RULE BRITANNIA, that might be silly from a business standpoint and self respecting cats might not eat it, it would be quite acceptable from a TM law standpoint.

The other interesting aspect of this is that when the reporter called me late the other night, I asked if he had googled WITH GLOWING HEARTS. He had not and we did it on the spot. The first hit was this lovely website for a small business in Stratford, Ont. that sells woollen clothing and appears to have prior use of this trade-mark for clothing.

Clothing. That could be a problem for VANOC. Fortunately, the little Stratford business, called WITH GLOWING HEARTS, and a URL with that same trade-mark has a very fine IP lawyer. So this could get very interesting.

HK

No DOJ Subsidies for RIAA etc. Litigation

The Bush administration has stopped an attempt by the RIAA, MPAA and others to turn the US Department of Justice into a taxpayer funded civil litigation firm acting for the entertainment industry. The Bill almost got passed. It was opposed mainly by the EFF and the American Library Association.

Here's yesterday's press release.

For Immediate Release: Contact: Jennifer Hoelzer (Wyden): (202) 224-3789

September 24, 2008

Senate Drops Civil Enforcement Provisions from Intellectual Property Act

Washington, DC— The U.S. Senate Judiciary Committee today removed provisions from S.3325, the Prioritizing Resources and Organization for Intellectual Property Act of 2008, that would have involved federal prosecutors in civil copyright cases. The provision was removed at the request of U.S. Senator Ron Wyden (D-Ore) who released the following statement:

"I am happy to announce that after substantial discussions Chairman Leahy and the Senate Judiciary Committee have agreed to remove provisions from S.3325 that would have resulted in a massive gift of scarce federal resources to Hollywood and the recording industry. I regret that the legislation still includes provisions that overzealous federal prosecutors could misconstrue to allow the seizure of important components of our Internet infrastructure. I will work with Senator Leahy to clarify these provisions in the future.

"I congratulate the committee on their strong efforts to improve enforcement of our anti-counterfeiting laws and hope those efforts will aid federal efforts to protect American producers and American jobs.

"The removal of Title 1 from the original version of S.3325 eliminates a grant of federal power that was not asked for, or desired by the Justice Department. It would have had the effect of turning our federal law enforcement personnel into collections agents for industries that are more than able of taking care of themselves. The Justice Department has made clear that Title 1 would have resulted in the diversion of federal resources from important criminal actions into civil matters of questionable merit.

"Unleashing federal prosecutors on Internet communications and discourse would also have a chilling effect on both commercial activity and free expression. Both the individual desire to share ideas and creativity more broadly and the drive of business to expand their markets and reach new customers have been the engines behind the most dynamic and vital new industry in American history. This is why it is so important that unintended consequences not be allowed to tax, throttle, or otherwise inhibit those creative forces.

"With over 30,000 civil suits filed by a single entity against individual Americans it is clear that industry is more than able to enforce its intellectual property rights in civil courts without the contribution of taxpayer funds and busy federal prosecutors. I continue to urge the content industries to seek out distribution models that take into account, and profit from, the new technologies that have revolutionized the way Americans communicate, learn and share information.

###

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

Supremes Won't Hear Ringtones Case

The Supreme Court of Canada has ruled that it won't hear an appeal concerning the ringtones tariff. See my previous posting for what this was all about.

The ruling was made “with costs.”

DISMISSED WITH COSTS / REJETÉES AVEC DÉPENS

Canadian Wireless Telecommunications Association et al. v. Society of Composers, Authors and Music Publishers of Canada (F.C.) (Civil) (By Leave) (32516)

Coram: McLachlin / Fish / Rothstein

I shall follow up with the possible implications of this ruling. As usual in these leave to appeal rulings, no reasons were given.

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

ACTA - EFF Sues USTR

The redoubtable EFF has sued the secretive and determined USTR over its allegedly insufficient disclosure under the US Freedom of Information Act ("FOIA") concerning the very non-transparent ACTA negotiations. Here's the complaint.

Here's the story from IP-Watch.

According to this story, even corporate giants such as Google are concerned.

Ironically, the level of transparency in Canada appears to even less than in the USA.

In my experience with IP treaties, which goes back more than twenty years, draft texts have always been made public at a relatively early stage, even if replete with square brackets. Not so here. This treaty was supposed to be a done deal by the end of this year, although rumours are that this won't happen.

HK

Ringtones - Supremes to Rule on Leave Application

We shall find out this Thursday, September 18, 2008 shortly after 9:45 AM whether the Supreme Court of Canada (hereinafter “the Supremes”) will hear an appeal concerning the Copyright Board's Ringtones Tariff payable to SOCAN. The main issue is whether the delivery of ringtones by a provider to the customer's telephone or to the customer's computer upon request constitutes a "communication to the public by telecommunication."

While the narrow legal issues are highly technical, the ramifications entail the potential imposition of multiple layers of payment to multiple claimants for multiple rights involving the same activity and transaction. The concept of “double payment” could become “triple” or more. The “making available” right may some into play if the case is heard.

The three dozen or so collectives in Canada and the oversight provided by the Copyright Board are supposed to simplify the legal landscape and reduce transaction costs so that creators can be paid more efficiently for their efforts and avoid market failures. Canada has more collectives and a larger full time Copyright Board with far more full time resources than any other comparable tribunal in any comparable country.

So far, the result has been excellent for a small number of lawyers and consultants but is of questionable benefit overall to most actual creators, who have seen very little if any money from most of this adversarial and litigious activity.

Since various governments have succeeded only in adding to this complex labyrinth, perhaps only a judicial commission can see beyond the box and sort out and simplify this morass. As matters stand, there are too many vested interests that benefit from the current state of uncertainty. Nothing in the last two Bills - the Liberal’s C-60 or the Conservatives Bill C-61, which both died with election calls, would have clarified this situation. In fact, Bill C-61 would have created the possibility of several new tariffs and the inevitable lengthy hearings and judicial review.

If the Supremes hear this case and reverse the result below, there could be a significant domino effect on subsequent Board matters, including the seemingly perpetual SOCAN Tariff 22 hearing, which is now about thirteen years old and far from resolved. In fact, it is also under judicial review. Time for a Tariff 22 Bar Mitzvah? See my comments on the tie in between the Ringtones matter and Tariff 22 here.

I should confess that I was involved in the Ringtones file at an early stage, but my client, a very major American supplier of ringtones with extensive knowledge of the market and issues, decided to withdraw, as have other major parties involved in Copyright Board hearings who might have brought useful evidence and insights to the table.

Inexplicably, the remaining objectors (the Canadian Wireless Telecommunications Association or “CWTA”) decided to concede at the Board hearing that the delivery of the ringtone files music files in response to consumer orders was indeed a “communication by telecommunication.” As the Board put it:

They concede that downloading a ringtone is a
communication by telecommunication but
contend that the communication is not a public
communication, but a private transaction
between a vendor and a purchaser and as such, is
not protected by copyright.

I have blogged about the Board’s decision at length here, here and here.

The CWTA lost its judicial review attempt in the Federal Court of Appeal on January 9, 2008, as reported here.

The FCA apparently gave full consideration to the new argument reversing the CWTA’s previous concession, even though it was raised for the time only at the appellate stage. However, one cannot help but wonder whether a different record from below based upon the “no communication” theory might have helped the CWTA on its judicial review - or even have led to a different result at the Board.

This file has already had a more than the usual twists and turns in the Supreme Court, with both sides attempting to strike out some or all of each another’s affidavit material.

The Supremes have decided half a dozen major copyright cases since 2002. Before that, they heard about one every decade or so. Will they bite again this year? We’ll know soon enough. Here’s the Supremes’ summary of the case.

HK

Bill C-61 - Dead or Undead?

Is Bill C-61 really "dead", now that an election has been called?

Or is it really in the realm of "The Undead"?

Since many believe that this bill was all about a "made worse in Canada" version of the American DMCA, is it fair to ask whether will it become a legislative real life version of that immortal thriller "American Zombie"?



Love it or hate it, Bill C-61 will return, maybe even in a scarier remake. Maybe with a different number? Maybe as the "Son of 61"?

For better or worse. Maybe sooner than you think!

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

Made Worse in Canada

"Made in Canada" or "Made Worse in Canada"?

The phrase I coined on June 12, 2008 - the day that Bill C-61 was introduced - seems to be virally growing and is once again being mashed up online - now with a clever video no less.

HK

CLA Advocacy Material on Bill C-61

The CLA has posted some advocacy material on Bill C-61, available here.

Although the suggested letter contains some good points, I'm frankly puzzled by what is meant by the term "Technical Prevention Measures" and what the CLA means by:

New copyright legislation should punish copyright-infringing behaviour, but should prohibit the circumvention of technological prevention measures for legal purposes.

HK

PS - the site now says:

Prohibitions against the circumvention of digital locks should be limited to acts of copyright infringement, but should not prohibit the circumvention of technological prevention measures for legal purposes.

This makes more sense, but I still don't know what is meant by technical "prevention" [sic?] measures.

Another suggestion would be to update the CLA's copyright infromation page
which includes some obsolete and less than useful references, and does not include such useful material as Laura Murray's and Sam Trosow's excellent book, which is the best single source book on copyright for librarians at the present time.

Troubles in Brussels

The often playful IPKat has a very serious and gloomy report on Bernt Hugenhotltz' open letter to Dr. Jose Manuel Barroso, President of the European Commission.

Prof. Hugenholtz is understandably concerned that the Commission has ignored the work that it had commissioned from his exemplary institute, for example in the course of its controversial recommendation in July to extend the term of protection for sound recordings to 95 years. He states:

As you are certainly aware, one of the aims of the `Better Regulation' policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission's recent Intellectual Property package does not live up to this ambition. Indeed, the Commission's obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.

The power of lobbyists to override the advice of professional public servants and academics of immense integrity and independence, such as Bernt Hugenholtz, is indeed very regrettable and is, regrettably, not restricted to Europe.

Prof. Hugenholtz is to be commended for standing up for the work of his colleagues and for matters of principle at a time when principled and professional analysis in IP by governments seems increasingly like a quaint memory.

HK

Copyright as Olympic Censorship Tool - Updated

Slashdot has a story about how the IOC invoked the DMCA to take down a pro-Tibet video that presumably offended it by showing the famous five rings being used as handcuffs or otherwise. The IOC appears to be doing a great job of censoring protest that would offend the Chinese government.

Follow the link to the Vimeo site and watch while you can. Warning - the video shows bloody and maybe even dead bodies.

This is not copyright infringement by any stretch under American case law. YouTube caved and took the video down, even though it could have assumed a minuscule theoretical risk and ignored the clearly baseless and abusive DMCA take down notice. Needless to say, this is disappointing and doesn't augur well for free speech or a "do no evil" approach.

It's clearly unrealistic to expect the protesters to fight back to put the video up - since this could risk exposure to the Chinese authorities. Would a protester in China who wishes to protest the YouTube takedown, be rational in providing, as required, by the DMCA:

The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

I'm sure that the Chinese authorities would be quite interested in this information.

This is what the DMCA is all about. Bill C-61 is not quite as bad in this respect, as it is based upon notice and notice, rather than notice and takedown. This is one of the few positive aspects of Bill C-61. But, the sound recording and film folks may not be content to let it rest that way and may push for the "American way" if the Bill reaches Committee.

UPDATE AUGUST 18, 2008.

Apparently YouTube responded to copious criticism, including from your's truly, and questioned the IOC about this. The IOC relented and withdrew its takedown notice. This time.

But what about next time? The incident shows the potential for unchecked abuse of an American style notice and take down regime, which certain predictable American dominated trade associations will likely demand if the Canadian Bill C-61 moves forward as is.

HK

The End of William Patry's Blog

Yesterday was a dark day for copyright law, and even bigger issues such as the ability of passionate and informed scholars to use the blogosphere to publish views that some powerful forces may consider to be threatening to their interests. Here's Bill's last post.

Whatever else this means, it is a great loss for those who care about sound, sustainable and balanced copyright law and wish to see it evolve in a well-informed manner and as part of a healthy debate. Here' what I posted on his final blog entry:

Bill:

Yours was clearly the leading American and international copyright blog by any measure. Unfortunately, these are not easy times in which to be scholarly, frank and to hold even perfectly reasonable views. You are indeed a “centrist.” You have defended the real purpose of copyright throughout your career. Above all, you have had the courage to hold views, which is an indispensable but increasingly rare quality in the world of scholarship and jurisprudence. It’s no wonder you have an affinity to Judge Posner and former Justice Sir Hugh Laddie.

Many have watched your personal views evolve over the years and agreed with them, or disagreed with them, as the case may be. That is healthy. Your views have always been well informed and impeccably researched. As I said in my review of your treatise, “Mr. Patry's evolution is an important indicator of where copyright law may be going.”

However, there are indeed some very powerful forces who view anyone who holds views critical of their own on such issues as the DMCA or ACTA as an “enemy of the people.” Add to this the results of “public choice” politics and economics and one can understand both your pessimism and your pragmatism.

This cannot have been an easy decision for you. You have clearly invested thousands of hours in this blog in its three splendid years. You should be very proud of it.

Since your critics and those who may try to embarrass you have no doubt already saved whatever nuggets they may attempt with futility to use against you, I hope that you will consider leaving the blog up as an invaluable research archive of these times and as an shining star for those who might take up the torch in the future.

Bravo, Bill.

Sincerely,

Howard Knopf

HK

ACTA Secrecy Concerns Increase

On July 28, 2008 Michael Geist reported in the Toronto Star that:

According to documents obtained under the Access to Information Act and reported here for the first time, the government has been crafting an Intellectual Property and Trade Advisory Group. The initial plans for membership in the group were limited exclusively to 12 government departments and 14 industry lobby groups. These include the Canadian Recording Industry Association, the Canadian Motion Picture and Distributors Association, and the Entertainment Software Association of Canada. [CRIA, CMPDA, ESA]

The early membership lists omit several key industry representatives likely to be affected by ACTA, including telecommunications, technology, and Internet companies. Moreover, there is absolutely no representation of the public interest — no privacy representation despite the obvious privacy implications of the treaty (the Office of the Privacy Commissioner of Canada was not included on the government invitee list), no consumer representation despite the effects on consumer interests, and no civil liberties representation on a treaty that could fundamentally alter Canadian civil rights.

CRIA, CMPDA, and ESA are highly influential American dominated lobbyist groups whose influence can be readily seen in Bill C-61.

Today, the highly regarded Intellectual Property Watch summarizes the current state of secret negotiations:

Sources described the closed-door negotiations which continued this week in Washington, DC as “very special", “unique in its secrecy” and the “first time that industry has been kept in the dark about an agreement of such importance.”

There are persistent rumours - based upon a leaked draft text - that ACTA could not only affect what happens at border crossings (laptop and iPod searches and confiscations?), but what is happening inside ISPs and ordinary people's internet accounts and activity, which could be monitored. This secrecy is very troubling. Moreover, Canada's lack of transparency is excessive compared to other countries - e.g. Canada, unlike the USA, hasn't published stakeholder submissions. This is especially troubling.

HK