Muffin Maven Muzzled

The Washington Post reports that a US Appeals Court has confirmed that "A food-industry executive armed with the secret to the "nooks and crannies" in Thomas' English muffins can't work for a rival amid a trade-secret lawsuit."

Thomas' English Muffins is owned by Bimbo Bakeries. The former Thomas/Bimbo exec wants to work for Hostess in Houston.

As the Third Circuit Court of Appeals noted:

Significantly, as Bimbo repeatedly has noted throughout these proceedings, Botticella was one of only seven people who possessed all of the knowledge necessary to replicate independently Bimbo’s popular line of Thomas’ English Muffins, including the secret behind the muffins’ unique “nooks and crannies” texture. Thomas’ English Muffins is the source of approximately half a billion dollars worth of Bimbo’s annual sales income.
(emphasis added)

I would imagine that the muffin maven is mighty miffed.

HK

PS - it seems that there isn't much that is "English" about Thomas' English Muffins other than that the baker who started making and selling them in New York in 1880 emigrated from England in 1874, according the the New York Times.

Indeed, according to the Boston Globe, "There may not be a single "English Muffin" in all of England".

That being said, I would imagine that "English Muffins" won't be pushed as geographic indication by the EU.

ACTA "intercessional" [sic?] meeting in Washington, August 16, 2010

It seems that there will be an "intercessional" [sic?] ACTA meeting in Washington, D.C. on August 16, 2010.

Either somebody (USTR?) can't spell or this is a great pun or Freudian slip.

"Intercession" usually has religious significance, i.e. see here and here, i.e. in the sense of mediating between two parties who can't agree, which seems to be the situation these days between the US and the EU over ACTA, which both parties are pursuing with religious-like fervour but also with fervent disagreement over just how excessive and aggressive the agreement should be.

Whether this will be an "intercessional" or "intersessional" meeting, apparently the meeting will be only between the USA and the EU, with the less important countries, in their view, such as Canada not invited.

Speaking of religion, I guess that "They also serve who only stand and wait..."

HK

Speaking of Statistics (and Copyright Blogs)

Not surprisingly, IPKat shows up yet again as the "first in show" copyright blog this week according to the Copyright Litigation Blog.

Congratulations to my dear friendly felines - Jeremy (the wise and wily tom cat), Annsley, Tufty and all the other Kats and Kittens...

No doubt their otherwise well deserved popularity this week was not diminished with this deceptively misdescriptive (though only barely) but still somewhat salacious blog about the "Naked Truth" of American trade marks litigation involving a cow boy, cow girl. and guitars.

Curiously, my little Canadian blog, lately rather neglected by the undersigned, apparently came in at number 11 around the world.

This is interesting, especially since neither this blog nor that blog were even mentioned.

There's an old adage about lies, damn lies and statistics - the latter of which is a hot topic these days in Canada that has even reached the New York Times. The Canadian long form census debate is ironically related to to copyright policy and the debate unfolding on Bill C-32. This is because of the air tight protection for DRM and TPM measures in Bill C-32 and the inadequate protection from their privacy invasive potential. See here on this blog a few days ago.

In order to achieve more reliability on copyright blog readership statistics, we really should consider including one or more questions on the mandatory Canadian census - if it survives - about blog reading habits so that Canadians can know the real truth about who reads what and why...

To certain readers who occasionally take this blog, including its title, too literally - part of the foregoing is tongue in cheek. But only part. If you can't guess which part, you need help!

HK

Bratz Beats Barbie

(The Telegraph)

Here's a remarkably witty and wise decision from Chief Judge Alex Kozinski of the US 9th Circuit - famed for his often colourful IP decisions.

He overturns Mattel's early victories in this epic case on many grounds, not least important of which is the classic idea v. expression issue.

His bottom line and his last line indicate the frequent reluctance of the experienced IP judiciary to let copyright law be used to stifle otherwise legitimate competition:

America thrives on competition; Barbie, the all-American

girl, will too.

HK

The Privacy Policy Paradox - Census and Copyright Contrasted

(Slyck)

There is a certain paradoxical irony in the coincidence of the debate over abolishing the mandatory long form census form and Bill C-32 on copyright revision in Canada.

The current census proposal reflects a commendable desire, in principle, to cut back on the “nanny state” notion of society, with a “less is more” approach to the role of Government. Interestingly, many groups are resisting this initiative in this instance, calling for the keeping of the long form because the minor inconvenience and the minimal privacy implications are, in their view, worth the benefit of the important information that will be collected.

Moreover, according to Jennifer Stoddart, the Federal Privacy Commissioner, only three complaints have been filed in the last decade about the long form census.

Likewise, most Canadians favour strict regulation of banks and the environment, because the costs and interference with “property” are well worth the benefits. Even Alan Greenspan now believes in regulation.

Segue to Bill C-32, which ironically is clearly an example of major Government intervention and regulation. The air tight “digital locks” provisions that will sooner rather than later override all users’ rights have received enormous criticism and even backlash. Not only will these provisions enable the micro-management, if not absolute control, over what consumers can do with their expensive Blue Ray discs, software and other bought-and-paid-for property consisting of content media and hardware (from smart phones to cameras to computers) in terms of where, when and how they can be used. These provisions will enable the elimination of users’ fair dealing rights in DRMed and TPMed material, if the content owner so decrees, and even access to material in the public domain.

Moreover, there is an enormous potential for invasion of privacy - since DRM and TPM can be programmed to “phone home” or to report to third parties on users’ reading, research, listening, viewing, photo, video, webcam, browsing and who knows what other activities to whoever is interested and willing to pay for such information. The proposed privacy protection measures in Bill C-32 (s. 41.14) are simply not adequate to safeguard the legitimate privacy concerns of Canadians.

Bill C-32 would not only enable third party corporations to collect such personal information. It would make it illegal to circumvent such technology if the user is notified in presumably small print in a click through contract of adhesions that this is being done and a means is provided - which may be far from easy or practical - to opt out of the data collection. Just think about how tricky is it is to protect your privacy on Facebook - and nobody is forcing anyone to have a page on Facebook.

Canadians should be able to assume that their default status is that their privacy is being strongly protected. They should not have to take active, complex and quite likely ineffective steps to constantly ensure that this is the case in ordinary and often inevitably necessary daily and activity.

If the Government believes that questions to Canadians about “the number of bedrooms in their homes and what time they leave for work” are too privacy invasive, and are not the business of disinterested professional civil service statisticians, why would the Government enable collection of the most intimate personal information for commercial and who knows what other purposes about what consumers are doing with their computers, smart phones, TV sets, and other electronic devices and content and what information these consumers are obtaining?

The digital lock measures in Bill C-32 are an extreme example of government intervention not only in the market place and the R&D labs and educational institutions of this country but in the innermost realms of Canadian privacy. Apart from certain paid lobbyists and trade associations largely serving the American entertainment industry, and organizations controlled or created by them, there is little if any support for these digital lock measures.

A Canadian compromise style solution would be to allow for protection of anticircumvention measures consistent with but not beyond what is required by the 1996 WIPO treaties - and to also allow protection from such measures when they interfere with users’ fair dealing and any other rights provided by copyright, privacy and generally applicable law. There is nothing in international law to prevent such an approach.

The digital locks provisions of Bill C-32 are clearly the most controversial issue in this reform package - which is otherwise potentially promising. Without a compromise, Bill C-32 will almost certainly be doomed and all of the many supporters of constructive copyright reform will definitely be disappointed.

HK

Copyright Board Issues Commercial Radio Decision

The Copyright Board of Canada today issued its long awaited Commercial Radio tariff and reasons. It is a 116 page bilingual decision that covers six different rights payable to six different collectives.

As the Board states:

A Canadian radio station that broadcasts recorded music off a server reproduces and communicates musical works, performers’ performances and sound recordings. Four copyrights and two remuneration rights must be accounted for. This is the first time that the Board has been asked to set tariffs for all those rights at the same time.

It is notable that this entails more types of rights and more collectives than American commercial radio stations have to deal with. Whether this additional complexity and proliferation of collectives is a good thing or bad thing probably depends on whether one is a broadcaster or someone in the music business. Even in the music business, there is internecine concern about the old “pie” theory that holds that a pie can only be a certain size - and the more people that want a piece of it, the smaller each piece can be. The one sector that clearly benefits from all of this is the copyright bar.

Today’s decision probably validates the pie theory.

In the Board’s words, this is a summary of the result:

How much will the new rates generate in royalty payments, compared to the old rates?

The Board estimates that commercial radio stations will pay a total of $85 million in royalties. This is based on total station revenues of slightly over $1.5 billion in 2009. Using the previously certified rates, radio stations would have paid about $72 million. The new rates thus increase the amount of royalties by $13 million. Of this amount, $10.2 million represent royalties resulting from the introduction of two new rates, for AVLA/SOPROQ and ArtistI.

How much will each collective society receive?

Of the total amount of royalties of $85 million paid by radio stations, the Board estimates that $51 million will go to SOCAN, $13 million to Re:Sound, $11 million to CSI, $10 million to AVLA/SOPROQ and $200,000 to ArtistI.

The overall increase is $13 million per year, which is significant because it is an 18% increase over the previous overall tariff cost to commercial radio stations. And there are still some loose ends and unknown costs, notably regarding internet simulcasting.

However, the total amount is far less than the $200 million predicted by Glenn O’Farrell, former President of the former Canadian Association of Broadcasters. Here’s an article predicting this by Glenn and pictures of former Ministers Jim Prentice and Josée Verner from the Hill Times of February 11, 2008, which seems like aeons ago.

It should also be noted that if Bill C-32 passes as is, the right to collect from commercial radio stations for “reproduction” activities - i.e. copying and storing music on servers so that it can be archived, stored and broadcast efficiently - will be gone, provided that broadcasters can live with the limited exception provided for such reproduction which would last a maximum of thirty days. If the broadcasters can work with this proposed regime, they could save annual payments of $11 million to CSI, $10 million to AVLA/SOPROQ and $200,000 to ArtistI.

Don’t be surprised if the broadcasters try to broaden and lengthen the proposed ephemeral exception.

This tariff is the result of the combination of several proposed tariffs filed in 2007 and 2008. The Board consolidated them all into one hearing, which took place in December of 2008 and January of 2009. If there is judicial review, the Federal Court of Appeal could could hear the matter in a year or less (i.e. before next summer) and typically would render a decision in a few weeks or months at the most after the hearing.

HK

DRM, TPM, WIPO, GDP, & G20

Speaking of some well known acronyms. HT to MG re Brazil's proposed measure to protect users and consumers FROM excessive anti circumvention measures by punishing those who would hinder or prevent otherwise lawful activity, access to the public domain, etc.

Here's a table from 2008 indicating GDP performance of G20 countries. Look at Brazil and Canada - in a virtual tie in GDP, but Brazil having the higher growth rate.

Do we want to shoot ourselves in the foot with copyright policies that will hinder rather than encourage innovation and sustainable economic growth?

Or do we want to preserve obsolete and failed business models for the supposed benefit - but more likely the ultimate harm - of the American entertainment industry.

Never forget Jack Valenti in 1982 telling Congress on behalf of the motion picture industry that"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

It was a good thing nobody listened to him then. Why would we do so now?

HK

On the Right to Read for Blind Persons and others with print disabilities

As reported by KEI Online, below is Ambassador Gero's statement at the recent WIPO SCCR/20 meeting (June 21-24, 2010 in Geneva) on the subject of a possible treaty dealing with rights for the blind. It is rather unusual for an Ambassador to attend a working level meeting such as this. John Gero was very active on IP matters at the very early stages of the FTA, NAFTA and the WTO agreements beginning in the mid to latter part of the 1980's. It is unclear why he chose to personally deliver Canada's main intervention - but, at the very least, it would suggest that Canada regards this as a very important issue.

***************************

Intervention — International instrument on access to protected materials by persons with print disabilities

Thank you Mr. Chairman

Canada is pleased once again to address this Committee on the important issue of access to work by the print disabled. We would like to thank Brazil, Ecuador, Paraguay and Mexico – the co-sponsors of the Visually Impaired Persons (VIP) Treaty Proposal – for their contribution to this discussion. We would also like to thank the U.S., the European Union, and the Africa Group for their respective proposals that address access to print materials by persons with print disabilities, which have been recently submitted to this Committee.

Canada would like to take the opportunity to reconfirm our interest in finding expeditious and pragmatic solutions for access to works by the print disabled. Today, Canada would like to offer our perspective on the general principles that should apply to a possible instrument. We would also like to highlight how some potential reforms to Canada’s domestic regime could positively contribute to the work of this Committee.

In terms of some considerations that could serve the work towards an international instrument, Canada would like to note the following:

First, the element of flexibility is vitally important. It is Canada’s position that any solution to the problems of access by print disabled persons to copyright works should allow for a variety of means for domestic production of accessible material. Members States should have the choice of using exceptions, compulsory licensing or conditional exceptions. Providing Member States with flexibility in this regard is important as some Member States have laws that provide different types of limitations and exceptions for different types of accessible materials. Although there are some Member States here that suggest a mandatory exception is necessary, it is Canada’s view that enabling Member States to implement provisions which reflect local realities by having more than one type of limitation or exception, including for different types of accessible material, would not prevent but actually enhance the international exchange of such materials.

In this regard, a mandatory exception in all countries to allow for the import and export of special format materials does not seem necessary. It is important to recognize and account for the reality that not all Member States have identical laws. Moreover, it is also important to provide Member States with the ability to account for cultural differences and not to restrict their capacity to innovate in their legal framework.

With respect to the various proposals that have been tabled, we note that the Consensus Instrument proposed by the U.S. and the Joint Recommendation proposed by the EU allow for flexibility in laws. Canada sees this as an advantage for it recognizes effective regimes which are already in place, including those which may require payment in certain circumstances.

Another important consideration is that of the trusted intermediary. In order for the discussion to progress, it will be key to address the role and obligations of trusted intermediaries. Canada takes note that some proposals introduce the concept of trusted intermediaries. Canada would welcome a discussion on the range of circumstances in which these organizations could play a role.

Aside from Canada’s preference for flexibility, we view the ability of individuals with print disabilities to import special format materials for their own use without necessarily going through a domestic organization, such as a trusted intermediary, to be an important feature of the copyright modernization bill recently introduced in Canadian parliament that we will now turn to briefly describe.

As stated at the beginning of our intervention, Canada would also like to highlight how some potential reforms to Canada’s domestic regime could positively contribute to the work of this Committee. Earlier this month, a copyright modernization bill was introduced in the Canadian Parliament. This bill implements the rights and protections under the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, it creates new exceptions for educators, librarians, consumers and innovators and it strengthens the tools for rights owners to fight piracy. More to the point of our current discussion, the bill also explicitly addresses the issue of the import and export of special format materials for the print disabled.

With respect to importation, Canadian law – and this principle has existed in our law for many years – provides that it is only necessary to look at the limitation or exception in Canadian law to determine whether material can be imported. The copyright modernization bill clarifies for print disabled persons the existing rule that copyright materials can be imported into Canada if they could have been made in Canada under one of the exceptions in our law. This includes the importation of special format material for the perceptually disabled including importation by individuals with print-related disabilities.

We think that this example from Canadian law demonstrates that the importation of special format materials can be achieved in a variety of ways.

We would also like to note that this principle on importation may already exist in the laws of a number of Member States.

With respect to exportation, the bill in front of the Canadian parliament also has specific measures related to the export of special format materials. It includes a number of provisions to ensure that there is an appropriate balance between the interests of the parties involved. First, exportation is limited to special format versions of works by Canadian authors or authors of the country of importation. Second, the bill allows for the possibility of a royalty collected for export material even though there is a complete exception for domestic production of special format materials. Third, export from Canada can only be done by organizations, not by individuals; and the importer recognized by the law can only be an organization and not an individual. And fourth, the bill allows for the possibility of requiring a contract between the Canadian exporting organization and the foreign importing organization. A contract of this type could stipulate, for example, that the copies could only be used by persons with print disabilities. In this sense, this provision is aligned with the concept of trusted intermediaries by ensuring that the distribution is limited to persons with print disabilities.

Of note, the bill allows the export of special format materials to foreign countries regardless of what the law is in the foreign country and regardless of whether the foreign country has a limitation or exception for the creation of special format materials.

Although the bill does not allow for the export of third country material, any international instrument should establish rules and principles under which third country material can be exported.

In conclusion, we hope that Canada’s perspective on general principles and the approaches set out in our new copyright modernization bill are helpful in advancing the dialogue on this issue.

In terms of next steps, Canada does not see a consensus instrument or a joint recommendation as excluding the possibility of a treaty. Indeed, it can be considered as an important building block.

Thank you Mr. Chairman.

**************************

BTW, KEI is very active on this issue and has lots of useful resources and references. Start here.

This issue is not only important for those who are blind or have other reading disabilities. It is increasingly being seen as a a crucial test of whether WIPO can broker a meaningful multilateral agreement, or whether we will continue to see more erosion of multilateralism and the United Nations spirit. This is indeed what we are seeing in the controversial ACTA negotiations and countless bilateral and plurilateral agreements, such as the proposed CETA (Canada Europe Trade Agreement).

Those who are blind or who have print disabilities should at least have the right to read. Many of them have to struggle to do everyday things that most people take for granted. This right should not be controversial.

It would be very unfortunate if certain vested interests in the copyright world play politics in Geneva at the expense of blind and otherwise print disabled persons. The WIPO Secretariat will no doubt do its best to see a positive and concrete result - which most advocates for the blind would consider to be nothing less than a treaty. "Soft law" is probably not good enough any more on this issue.

But if major countries or blocs, spurred on by major copyright trade associations or acting for other reasons, frustrate efforts for this worthy cause, WIPO's ability to do what is right, just and necessary will be limited.

HK

PS - here is IP Watch's excellent report on how a "golden opportunity" was missed.