The University of Calgary Conference on Ethics, Creativity and Copyright

These are some notes from the University of Calgary’s conference on Ethics, Creativity and Copyright held in Calgary and Banff on August 3-5, 2006. Here are just a few thoughts. I hope to follow up with some others.

1. This was an well organized, innovative, well conceived and well-balanced copyright conference. The balanced aspect is something we too often don’t see in Canadian copyright conferences these days. There was a rich variety of presenters representing several real creators, collectives, users, academics, and the library and archive community who put forward views that some in the copyright establishment might prefer to suppress. The collectives were represented by Access Copyright and SOCAN. I understand that CRIA, the well known trade association, was invited but did not participate. Kudos to the organizers, Profs. Greg Hagen of the Faculty of Law and Clem Martini of the Department of Drama.

2. Justice Roger Hughes of the Federal Court was present and very active as a moderator and vigorous audience participant. He has an extraordinarily prolific and important record as a litigator and author in Canadian IP law - and his recent appointment to the bench was a notable event in the history of the Federal Court of Canada.

3. There were several Canadian, American, Australian and other academics, including Dennis Karjala from Arizona - the eloquent, outspoken and early critic of the term extension movement in the USA.

4. There was a considerable amount of criticism of the ethics of the copyright establishment in Canada and elsewhere. There was much discussion of cases that raised ethical issues, most notably CCH v. LSUC and its important potential, if properly understood, for a new era in Canadian copyright. There was also quite a lot of discussion about the Michelin case and much desire for a explicit parody and satire exception.

5. All of this was all the more remarkable considering that corporate sponsor of the event was Access Copyright ( “AC”). Maureen Cavan and Roanie Levy from AC were both present and very gracious. I have often criticized AC and, on occasion, fought hard with them on behalf of clients. But, to be fair, AC has come a long way. I highly doubt that AC will repeat such mistakes as its involvement in the shameful criminal prosecution of Laurier Office Mart back in 1994-1995, before the current senior management was in place. And, based upon what Ms. Levy candidly and publicly said about AC’s hindsight regarding the CCH v. LSUC case, I am reasonably optimistic that AC will make a virtue out of necessity and be very slow to sue, instigate or support test case litigation against any legitimate library, archive, educational, museum, governmental institution, law firm or corporation any time soon.

6. AC also publicly admitted that much of the torrent of criticism concerning CaptainCopyright has been justified, that some of what the Captain says is simply wrong, and that steps are being taken to redress this. Personally, I think that the most positive step by far would be capital punishment. It’s not complicated - just hit the delete key for the website. He and his propaganda have no place in our K-12 system. I can’t imagine how a consortium of Coca Cola, Pepsi, MacDonald’s, Wendy’s and KFC would be allowed to develop a “Captain Nutrition” or “Dr. Diet” program for Canadian schools that would be allowed in the classroom. I’m not convinced that copyright law should to be discussed in K-12 classrooms any more than securities law or real estate. But if it does have any place, AC is clearly not the entity that should be allowed to provide the content.

7. And Michael Geist has just unearthed the fact that Captain Copyright other special interest entities have applied for funding, presumably under the rubric of “copyright awareness” from Canadian Heritage. There’s something quite troubling about PCH doling our taxpayer money to groups whose main mission is to create copyright propaganda, to lobby for maximalist legislation, and to do the same year after year- but that’s part of the way that Canadian Heritage keeps its constituency happy. These groups, with their sense of entitlement, represent rich and powerful corporate special interests. They are about as far removed as one can imagine from being disadvantaged or disenfranchised groups in need of a government subsidy. The Auditor General might wish to continue and intensify her examination of what goes on at PCH.

8. The Canadian Library Association - in a refreshingly blunt open letter - seems to agree that Captain Copyright has gone over the top and even suggests that the website may be illegal in Quebec on account of that province’s laws concerning advertising directed at children. An interesting thought.

9. AC could achieve much good will by killing off Captain Copyright ASAP. But if AC is unwilling to cut its losses in this way, the next best scenario would be for Captain Copyright to teach much more balanced lessons. Some of them might concern how the Supreme Court of Canada in the CCH v. LSUC recently gave broad recognition to users’ rights to copy material - even whole works in some cases - in the course of research without seeking copyright permission or making payments. And there is no categorical rule against making multiple copies.

10. True, we don’t yet know just how far the CCH v. LSUC decision will take us. But that is no reason to avoid or deny its potential. Many at the conference agreed that it is the most important Canadian copyright case in decades. Moreover, including appropriate discussion in Captain Copyright’s curriculum would be a valuable lesson in our justice system generally - i.e. just who are those impressive looking folks in red and white robes in that fabulous art deco building in Ottawa and what else do they do? This would surely be useful information to K-12 students. In my view, the Supremes’ ruling about the rights of researchers and users rights ought to be at least as applicable to school children and their teachers and students and professors in universities as it is to lawyers working on behalf of their clients. This would be a good start to the rehabilitation of Captain Copyright, if he survives this long, hot summer - which he hopefully will not.

11. Yes - AC has come a long way and admits, to its credit, that it is still not perfect (something that certain other collectives are incapable of doing). AC is more transparent than most other Canadian collectives, although its annual reports unfortunately no longer separate out various sources of revenue that would show more precisely how our tax payer dollars are being spent and whether AC has managed to get any significant corporate revenue, which would surprise me.

12. Collectives have always been controversial. AC has a particularly difficult task, since it has relatively little actual repertoire in its chain of title and appears to be more like an insurance company than a traditional collective (which doubtless is a factor in PCH’s big push for extended collective licensing). The performing rights societies have been in business in Canada and the USA for almost a century and are still controversial - even though they, at least, can lay claim to virtually all of the commercially important repertoire. Some collective activity is clearly necessary in our world. Precisely when and under what terms and conditions collectives are allowed to operate is debatable as an ongoing matter of serious and legitimate public interest and legal application. And the public interest is arguably not being adequately served. For example, the General Counsel of the Copyright Board pointed out the virtually complete absence of the Commissioner of Competition from the activities of the Copyright Board, despite the explicit mandate and role given to the Commissioner in the legislation to get involved on behalf of the “public interest”.

13. AC was born with considerable encouragement and a very generous $13,000,000 license kickoff from the Federal Government in the 1980's. This enabled CanCopy as it then was known to embark upon aggressive lobbying for even more rights and income. Their ship came home (once again) with Bill C-32 in 1997, which was a huge setback for the user community. Hopefully, AC’s earlier mistakes and excesses are in the past and the current signs of progress at AC will continue and potentially even serve as a model of sustainable collective activity in Canada. In this respect we will watch with intense interest to see how such things as the following unfold in the near future:
a. The death or, at least the conversion and rebirth, and rehabilitation of Captain Copyright
b. The prosecution of the very aggressive proposed tariff of $12 per year per K-12 kid (that’s a lot of students in Canada) and its potentially devastating precedent on post-secondary costs and whether AC will acknowledge the effect of the Supremes’ decision in CCH v. LSUC. Of course, this will depend on the manner and extent to which the Council of Ministers of Education, Canada (“CMEC”) or perhaps even the Copyright Board itself will hold AC’s feet to fire on this very important point. So far, there are no intervenors. One would have expected that the colleges and universities might have sought to intervene, since this tariff will likely be used as a springboard for enormous future demands on the post-secondary sector, which is arguably over-paying already in light of the fact that much of the current payments go to cover what is probably fair dealing - particularly in the light of CCH v. LSUC. AC has already spent about $3,000,000 on this proposed tariff - so they do mean business.
c. The involvement with Creative Commons (“CC”) in establishing a database about public domain works. Hopefully, this will result in something more than is now already available with a little search engine effort and will be a win/win for all interests. The project involves a collaboration with Larry Lessig and the Creative Commons. So far, the project is very vague in terms of specifics, deliverables and where the actual data is going to come from. But at least AC is recognizing the importance of the public domain, and hopefully this strange dalliance between AC and CC will result in the creation of something useful in the near future.
d. Whether or not AC will clearly commit itself to not seek licensing revenue from anyone for “publicly available material” on the internet - which would be an absurd and very expensive solution to a non-existent problem and a trap into which CMEC is plunging at full speed by seeking a special educational exception, thereby giving credibility to principle and likely creating liability for everyone else.

14. In any event, thanks once again to AC. Really. Their sponsorship was apparently with no strings attached. Even I was on the program. QED. This follows their quick repudiation prompted by Jack Granatstein (which I’ve bogged about before) of campaign contributions in the future to the next politician who wants to step into Sam Bulte’s ill fated fundraising shoes. These are good signs and ought to serve as lessons to certain other even richer collectives and trade associations who are much less tolerant of constructive criticism - or indeed any criticism. Much more is required - but we have to start somewhere.

HK