Friday, April 28, 2006

Excessively Cautious Clearance Culture

It's very hard these days to do documentaries. Excessive caution on the part of the E&O folks and the lawyers invovled are killing good films and censoring those that survive. And the rights clearance process is costing a fortune that should otherwise be spent on real creativity. Much of this caution is unnecessary and simply wrong and much of the clearance expense is unnecessary. But it's deeply ingrained in what is commonly called the "clearance culture".

Here's an interview that I did with Kevin McMahon that may hopefully embolden some documentarians and some overly cautious colleagues in the legal profession...

This was originally published by the National Film Board of Canada in Focus Magazine, April, 2006 for distribution at the 2006 HotDocs Festival in Toronto.

Wednesday, April 26, 2006


Less than two weeks after the most influential Indies left CRIA (RIAA North), a who’s who of Canadian music stars has come out dead against the copyright gospel according to the CRIA and the CPCC (the levy collective of collectives). The stars include:
Barenaked Ladies, Avril Lavigne, Sarah McLachlan, Chantal Kreviazuk, Sum 41, Stars, Raine Maida (Our Lady Peace), Dave Bidini (Rheostatics), Billy Talent, John K. Samson (Weakerthans), Broken Social Scene, Sloan, Andrew Cash and Bob Wiseman (Co-founder Blue Rodeo).
They are opposed to:

• Suing their fans generally and statutory damages in particular. They say that:
In terms of specific copyright reforms, this principle suggests that the government should repeal provisions of the Copyright Act that allow labels to punish fans with damages of $500 to $20,000 per song. Statutory damages of this magnitude are unduly harsh where music fans share songs for non-commercial purposes. The threat of such enormous liability does not deter file sharing, but unfairly forces vulnerable people to cave in to the labels’ bullying tactics without a hearing of their case. To sue for non-commercial music sharing, record companies should have to prove their damages or lost profits, as is usually required by law.
• TPMs and Levies. They say that:
...the government should not blindly implement decade-old treaties designed to give control to major labels and take choices away from artists and consumers. Laws should protect artists and consumers, not restrictive technologies. If enacted at all, laws prohibiting the circumvention of technological measures should remain narrow. Any new legislation should not prohibit technologies or devices that may increase flexibility and facilitate choice for artists and music consumers. The law should also guarantee that artists and fans retain the ability to access music, and to use it in a fair manner.

On the issue of fair use of music, copyright law should be changed to clarify that transferring songs from one format to another is not an infringement of copyright. It is not fair to require consumers to pay twice for the ability to transfer bought songs to an iPod or other device by imposing additional levies. Instead, eliminating the rigid technicalities of the current fair dealing provisions and moving to a more flexible concept of fair use can solve this problem.
• Multinational record companies speaking in their names. They say that:
Until now, a group of multinational record labels has done most of the talking about what Canadian artists need out of copyright. But let’s be clear: major labels are looking out for their shareholders, not for Canadian artists. Recording industry lobbyists, despite claiming to represent artists, seldom speak for us. Legislative proposals, particularly those that would facilitate lawsuits against our fans or increase the labels’ control over the enjoyment of music, are made not in our names, but on behalf of the shareholders of the labels’ foreign parent companies.
The full package can be found at the website of the Canadian Music Creators Coalition (“CMCC”).

What does this mean? At the least, it will change the course of Canadian copyright revision. But it may mean even more. I would go even farther than Michael on this one.

If this spreads, it could be an artists’ Declaration of Independence. It may be that the creators’ revolution against excess copyright has begun in earnest right here in Canada.

Starting in Canada, this declaration effectively discredits virtually all of the uncritical support that some Canadian government officials - particularly those in the Department of Canadian Heritage - have provided for the music industry’s campaigns in favour of the levy scheme, statutory damages, TPMs, and blind faith WIPO Treaty implementation. From now on, if Government officials and Ministers fail to take notice of this declaration and continue to support the CRIA’s agendas, they will now have to account for actually opposing the well articulated and explicit wishes of some of our leading Canadian artists. This will hopefully not happen.

On a more immediate level, for example, I’ve been recently asked by senior officials in key jurisdictions whether there are Canadian artists who are opposed to blank media levies. It seems clear that the CMCC is indeed against a law that forces their fans to pay for “transferring songs from one format to another” and to “pay twice” to transfer bought songs to an iPod or other device. That is a direct kick in the levy scheme’s solar plexus - and maybe even a mortal blow, given all of the other assaults underway.

Internationally, this could even play out as the copyright equivalent of the Boston Tea Party, the sledgehammers at the Berlin Wall, and the beginnings of other great revolutions. The unpleasant fact that big copyright often speaks falsely in the names of actual creators and can be in conflict of interest with these same creators’ interests is now open and outed by the creators themselves who are finally using their articulate voices in a brave and brilliant manner.

I hope that the music industry does not engage in its known tactics of marginalization and even retaliation against these worthy souls who have spoken out. This has been done to individual artists in the past. These points of view can no longer be dismissed as those of an aging, hippy, and flaky former rock star alone against the world (as Janice Ian was painted in 2002). This is clearly a well organized group of very successful world class artists in the prime of their careers. And bless them - they’re Canadian, eh!

And I hope that responsible Ministers will listen directly to these artists rather than to any of their officials or lobbyists who may persist in regurgitating industry positions that have now clearly been disavowed by leaders amongst those in whose name they were wrongly put forth.

Anyone who has read my blog or other writings before will know that I have been advocating for these positions for some time, and calling upon creators to speak out. For example, Jack Granatstein has done so effectively. I hope that the time has come for Canada to take the lead in providing copyright laws that actually work for artists and consumers, and not primarily for a handful of large intermediaries, collectives, lawyers, lobbyists and others who depend upon exploiting them.

The CMCC has has just taken a giant step forward in making copyright laws serve the interest of real creators and their fans- also known as "consumers" and "the public".


Thursday, April 13, 2006

CRIA - What Lies Ahead?

Michael has a great blog entry on CRIA and the widely reported resignation from it by six of the leading Canadian Indies, including the legendary Anthem, Aquarius, Nettwerk and True North labels, on the basis that:

“ has become increasingly clear over the past few months that CRIA's position on several important music industry issues are not aligned with our best interests as independent recording companies"
"...we do not feel that we can remain members [of CRIA] given CRIA's decision to advocate solely on behalf of the four major foreign multi-national labels.

The letter dated April 12, 2006 and sent to a large number of VIPs in Ottawa focusses on the recent CRTC submission but clearly suggests that there is more involved. In fairness to CRIA, it expresses appreciation for CRIA’s work “in many areas including copyright”.

But, speaking of copyright, there are troubles afoot for CRIA at the Copyright Board as well. CRIA, along with many others, has recently been fighting CSI (which is basically a coalition of music publishing trade associations) over the CSI’s proposed online music tariff. This is an incredibly complex saga that will overlap and intersect in strange and unpredictable ways with SOCAN’s decade long and still amorphous effort to license music on the Internet - but I digress.

In the CSI file, CRIA objected to its Class “B” members (i.e. the Canadian Indies) having to answer interrogatories - a position with which anyone familiar with Board hearings from an objector viewpoint would tend to sympathize with.

CRIA’s position was that “When it became clear that the interrogatory process was too onerous to involve its smaller members, CRIA withdrew on their behalf.”

The Board then did something quite interesting. Apparently out of concern for the Indies, it ordered CRIA to send notices to the Canadian Indies in the following language:

“CRIA recently opted to change the scope of its representation of its members’ interests in the forthcoming proceedings before the Copyright Board dealing with CSI’ s proposed tariff for the reproduction of musical works by online music services. Subsequently, the Board ordered CRIA to advise you of the following:
1) In these proceedings CRIA has chosen to act only on behalf of (name of each member that CRIA represents).
2) As a result, CRIA will not be allowed to advance any argument or lead any evidence that relates to your situation in particular, or to the situation of any other member of CRIA that CRIA does not represent in these proceedings generally.”
CRIA strongly objected to being told how to deal with its own members. It asked the Board to “reconsider” on the basis, inter alia, that:

the implication of the Order was that CRIA had acted in bad faith, deceitfully or otherwise inappropriately vis-à-vis its class B members, an implication that had no basis in the record;

The Board denied the request for reconsideration. CRIA has now launched a major judicial review application in the Federal Court of Appeal (A-593-05) and described the main issues as follows:

A. Did the Copyright Board breach the duty of fairness in issuing the Order?

B. Did the Copyright Board err in concluding that sections 66.7(1) and/or 66.71 of the Copyright Act give the Board the authority to issue an Order requiring a party to communicate with its members in a particular manner?

C. Did the Copyright Board err in ordering CRIA to send to each of its non-Class A members a notice advising them of CRIA’s decision to no longer represent its non-Class A members in the tariff proceedings?
CRIA’s judicial review memorandum is dated March 28, 2006 - and the responses should presumably follow 20 days later, which is to say on April 17, 2006.

So - with some of its main Canadian Indies gone, its polling and PR in disarray, and a public position on levies that reverses its twenty year old quest - what is happening?

This much we know about CRIA’s recent milestones:

• It still has the apparent support of its big four multinational members, Warner Music Group, Sony BMG, EMI Group, and Universal Music.
• These are the Canadian subs of the same big four that are under serious fire in the USA for alleged price fixing for online music and for alleged payola violations.
• CRIA’s Canadian component - small as it may be - is evaporating.
• CRIA’s support of Sam Bulte probably contributed to the former MP and potential Heritage Minister’s loss of her seat and likely her parliamentary career
• CRIA’s polling data has been inconsistent with its stated positions and has been ridiculed far and wide. CRIA has recently changed pollsters and PR firms.
• CRIA has fizzled and failed in its litigation campaign against Canadian file sharers and “infringers” (i.e. music lovers and customers) and P2P “weapons of mass distribution”, e.g. KaZaA. It badly lost round one of the file sharing litigation in 2004 not only because the law was against them (the very same levy law it fought so hard for since the early 80's) but because its evidence was so woefully inadequate. It was hearsay interspersed with fatal gaps. CRIA blamed the loss on its lawyer, Ron Dimock, who is by anybody’s measure one of Canada’s top IP litigators. He took the brief that was handed to him at the last minute by CRIA. He did as good as job as could possibly be done with the brief he was handed. I know because I opposed him.
• CRIA’s appeal to Federal Court of Appeal in 2005 was dismissed, although it tried to paint the result as a victory.
• I’ve lost count of the numerous prominent law firms and IP lawyers CRIA has retained in succession in the last couple of years on its various causes. At the rate they are going, they may soon have to call me ;-)
• CRIA provided disingenuous, incomplete and incorrect information in testimony to a Parliamentary Committee on March 9, 2004 about the WIPO treaties
• CRIA tried to get Michael Geist, its most vociferous, persistent and effective critic, fired from his Toronto Star gig.

What lies ahead?

CRIA’s current major active campaigns presumably include these:

• Canadian ratification of the 1996 WIPO treaties and super tough DMCA style DRM, TPM and ISP liability legislation. CRIA is by far the main “demandeur” on this front.
• The CRTC Commercial Radio Review
• The Copyright Board hearings on Private Copying for 2005-2007 in which CRIA is a major stakeholder in the CPCC, although CRIA wants to pull the plug on the levies. That is not likely to sit well with others in the CPCC tent. CPCC collects the unpopular private copying levies.
• The CSI and SOCAN internet hearings at the Copyright Board - in which music industry politics and internecine civil strife will continue to unfold in strange ways that also are likely to cause a lot of collateral damage and cost to those who are forced by the nature of the process not only to watch but to participate at considerable expense and inconvenience.

It will be interesting to see how Canadian officials, politicians, the CRTC, the Copyright Board and Courts will react to all of this.

Not to mention that real constituency that counts, which is the actual Canadian music industry itself and the millions of Canadians who actually love and support actual Canadian music.

Maybe Michael is right that we need to drop the “C” from CRIA. Or, they can just keep the acronym and change their name to the “Canadian Recording Industry of America”, as a prominent international movie industry lawyer/lobbyist said in a priceless Freudian slip.


PS - I should remind all, in case anyone doesn’t know, that I acted against CRIA in the file sharing litigation and continue to act against the CPCC, in which CRIA is still a major stakeholder, on the levy front. But, as always, I speak only for myself on this blog.

Wednesday, April 12, 2006

Canada & Copyright: Rogue State or Role Model? Fordham IP Conference 2006

I am pleased to advise that Canada will have about 75 minutes of fame at the 14th Annual Fordham International Intellectual Property Conference in New York City next week on April 20 and 21, 2006. Yes - we will be talking copyright. This is a terrific conference - without doubt the best annual IP conference in the world. It covers patent, trade-marks, copyright, antitrust and trade law from the USA, EU, WIPO and - I’m glad to say - a Canadian perspective with Australian and other important contributions. I’ve been honoured to have organized the Canadian segment the last couple of years. Hopefully, this Canadian session will become an annual feature. Hope to see you there. Here’s this year's Canadian session (subject to revision):

Canada & Copyright: Rogue State or Role Model?

MODERATOR: Prof. Daniel Gervais, Acting Dean, Faculty of Common Law, University of Ottawa, Ottawa, Canada

1. Copyright Revision and WCT and WPPT Ratification

This panel presents an overview of the legislative revision process and the effect of the recent election of a Conservative government. Discussion of the making available right, TPM and DRM, private copying and effect of WCT ratification, ISP liability and search engine liability.


Howard Knopf, Macera & Jarzyna LLP, Ottawa, Canada

Barry Sookman, McCarthy, Tétrault LLP, Toronto, Canada

Panelists: Mihály Ficsor, Director, Center for Information Technology and Intellectual Property, Budapest (addtional panelists to be announced)

2. Educational Exemptions and Fair Dealing: Is It Time for a Change?

This panel will discuss whether a copyright exemption should be used to address the need of educators to use publicly available materials. What are those needs and what are the copyright restrictions placed upon them? How does this compare to the situation for educators in the United States? How broad is the fair dealing defense? Should Canada adopt a fair use defense?

Roanie Levy, Director, Legal and External Affairs - The Canadian Copyright Licencing Agency (Access Copyright), Toronto, Canada

Prof. Sam Trosow, University of Western Ontario, London, Ontario, Canada

Panelists: to be announced

3. Collective Administrataion of Copyright in Canada: Practical and Policy Dimensions

Glenn O’Farrell, President, Canadian Association of Broadcasters, Ottawa
Paul Spurgeon - Vice President Legal Services and General Counsel, The Society of Composers, Authors and Music Publishers of Canada (SOCAN), Toronto

Panelists: Howard Knopf,, Macera & Jarzyna LLP, Ottawa (other panelists to be announced)

Tuesday, April 11, 2006

More Right Minded Wisdom

There's been another libertarian shot at the DMCA, suggesting that the neither the French approach nor the American approach are right, as it were.

I doubt that I was the first to use the phrase "French Revolution" to decribe what is now happening over there, but I'm obviously not the last.

Here's a piece in the National Review from Peter Suderman who is assistant editorial director at the Competitive Enterprise Institute.

Suderman concludes:
Somewhere in between the U.S. and French approaches to DRM lies an appropriate middle ground. The DMCA makes DRM far too strong, but the French proposal renders it nearly useless. Individuals ought to have control over their media, but digital-music vendors like Apple ought to be allowed to protect and control their property. Vive la (digital) revolution!
This follows another highly pedigreed libertarian comment from Tim Lee that I noted earlier from the CATO Institute.

And an important op-ed from Canada's influential Prof. Tom Flanagan and Gemma Collins in the Ottawa Citizen, March 18, 2006 - widely blogged about and now fortunately available online. (Read it while you can!)

It is ironic and very important, but not so strange, that the "left" and the "right" seem to be more frequently meeting full circle on copyright issues.

Governments, particularly Canada's newly elected Convervative government, may wish to take note.


Monday, April 10, 2006

Minister Oda - the Transcript

Simon Doyle at the Hill Times managed to catch Minister Oda right after the throne speech. To her credit, she was gracious enough to give him a brief interview. That is how the story got in the Hill Times today. Perhaps we old copyright curmudgeons (well, Michael isn’t so old) should not parse every word quite so quickly, when the Minister was undoubtedly trying to be helpful and constructive on a notoriously difficult file.

In order to bring more clarity and context to the discussion that Michael and I have started, I spoke to Mr. Doyle who has kindly, in light of the doubt surrounding his story, offered a transcript of what was said:

Simon Doyle: "Copyright is something that you'll probably be looking at sometime down the road and today they mentioned in the Throne Speech that major treaties will go through Parliament. The copyright treaties, is that something that you might vote on in Parliament?"

Bev Oda: "The three pieces of legislation that were in the Throne Speech were put in the Throne Speech because they will be bills of existing legislation that will be reviewed. Copyright legislation has to be amended to make our copyright laws and ratify the international treaties."

Simon Doyle: Does that mean you would vote on the treaties as well as the..."

Bev Oda: "No, you would have to introduce amendments to the existing copyright legislation. The copyright legislation that was introduced by the previous government, once it was tabled, it did die on the order paper, but once it was tabled created a lot of dissension. There were different views on many elements of that bill. Consequently we are working and we will be introducing a new copyright bill that will expedite meeting our international obligations but also making sure that we have a copyright regime and a copyright framework that's appropriate."

Now that sounds to me like a perfectly appropriate, constructive and forthright response to the tricky treaty question that is on everybody’s minds. It seems to indicate that the Minister clearly understands the situation and does have an open mind and that no outcomes have been predetermined as to when, how or. pehaps, even if Canada might assume additional international obligations. And it looks like I was wrong to connect the WIPO treaties to the reference to treaties in the Speech from the Throne.

Thanks Minister Oda and Mr. Doyle for the clarification. Enough parsing. On with the pursuit of policy making.


Bev Oda quoted on WIPO

The Hill Times today reports as follows:

The Hill Times, April 10th, 2006
Conservative government to introduce copyright bill: Bev Oda

The Conservative government intends to amend the Copyright Act and ratify two internet treaties of the World Intellectual Property Organization, Heritage Minister Bev Oda told the Hill Times last week after the Speech from the Throne.

"Copyright legislation has to be amended to make [compliant] our copyright laws and ratify the international treaties," Ms. Oda (Durham, Ont.) said. "We will be introducing a new copyright bill that will expedite meeting our international obligations but also making sure that we have a copyright regime and a copyright framework that's appropriate."

The short article by Simon Doyle goes on to talk about the WIPO treaties and concludes with a quote from this blog under the title "Trick of Treaty?":

Let's hope that this Government has not made up its mind already on the WIPO treaties," Ottawa copyright lawyer Howard Knopf, a critic of the treaties, wrote on his blog last week. "Many would consider that to be a less than funny trick.

Three points:

  • It will be interesting to see precisely what Mme Oda means and whether she is officially speaking for the Government, especially given the famously tight reign that this PMO has put on Ministers' public statements. At least one of her predecessors was somewhat notorious for shooting from the lip on coypright matters without the backing of cabinet or her colleague at Industry. I have not heard anything that would indicate that this Government's Cabinet has yet decided to ratify the WIPO treaties.
  • As quoted, Mme Oda's statment is ambiguous. On the one hand she talks about ratifying "the international treaties", but then goes on to talk about " meeting our international obligations". Well, we already do and then some. As I've said many times, we have no obligation to ratify these treaties and we meet or exceed our present treaty commitments in copyright law. Is is possible that Mme Oda is being slightly imprecise with terms such as "ratify"?
  • This blogger has said that there is is nothing wrong per se with these treaties, so I'm not necessarily a critic of them. It all depends on how they are implemented. I am, however, criticial of how the USA has done so. I said a while ago:
The WIPO treaties are not necessarily bad per se. The difficulty is is clearly in finding a means, if possible, of implementing them that is good and not bad for Canada. Whether this can be done is not clear. Certainly, it can’t be done in Canada's interest the way CRIA and the American DMCA champions call for.
Michael has also parsed some other ambiguities here.

So, at the end of the day, it looks a bit, in the Canadian tradtion, like "WIPO Ratification if necessary, but not necessarily WIPO Ratification."


Friday, April 07, 2006

Supreme Court of Canada - Robertson v. Thomson

There has been a truly extraordinary and quite possibly unprecedented development in the Robertson v. Thomson case in the Supreme Court of Canada. This was the case about free lance writers and electronic databases. It is the Canadian counterpart to NYT v. Tasini.

The appeal was heard on December 6, 2005. The Court has just ordered that there will be a rehearing by means of review of the transcript and videotape. This was the last case on which Justice Major sat before his retirement and apparently he will not participate in the final judgment. I understand that the Court has indicated that, in light of the retirement of Justice Major, Justice Rothstein, who was appointed after the hearing, will participate in the rehearing.

While once can only speculate, this could mean that there is a serious split or splits going on behind the scenes. Normally, a retiring judge will finish up work on the cases he or she has heard and has six months to do so. If he cannot do so for any reason, the Court can issue a decision with less than the full 9 justices participating and would so note. It could then be an 8-0, 7-1, 5-3, 6-2 decision, etc. Perhaps things are so close in this instance that such a result is not possible and that the Court could be split 4-4 on key points.

I haven't checked whether we have many or any 4-4 decisions in our Supreme Court but they do happen in the USA occasionally. As I recall, this results in the affirmation of the decision below.

In any event, here’s the order:


A re-hearing is ordered.

On the consent of the parties, the Court will rehear the appeal by reviewing the transcript and viewing the videotape of the hearing held on December 6, 2005. Any questions arising during the re-hearing shall be addressed to counsel for the parties, in writing. Counsel shall be given the opportunity to answer and reply in writing in accordance with dates as directed by the Registrar.

Wednesday, April 05, 2006

Update on Access Copyright's Political Donation Policy

I can now belatedly update an earlier posting following up on Jack Granatstein's correspondence with Access Copyright.

Access is getting out of the political donation business. Good move, Maureen. Hopefully, other collectives and trade associations will follow suit and soon.

I've got lots of issues left with Access Copyright - but here's one where they've changed course and got it right both quickly and decisively.

Here is the relevant part of an e-mail sent to Professor Granatstein, posted here with his permission. (with contact info removed)


----- Original Message -----
From: Maureen Cavan
To: Jack Granatstein
Cc: Board of directors
Sent: Friday, March 10, 2006 10:16 AM
Subject: political donations

Dear Jack,
After consideration by the Access Copyright Task Force on Governance and further debate at a Board meeting on March 2, 2006, the following motion was passed unanimously by the Board of Directors of Access Copyright:
"That Access Copyright refrain from making any contributions to any political party or individual candidate."

Best regards,
Maureen Cavan
Executive Director
Access Copyright

Throne Speech Sentence Scenarios

Michael does some more analysis of the Speech From the Throne. He is quite right in one sense that it can be taken in whatever way people may wish, in terms of copyright legislation. But, in some respects, if taken literally, this could be an enormous - virtually a constitutional - change in the way things are done in Canada.

The sentence about treaties was this:
Significant international treaties will be submitted for votes in Parliament.
Normally, the Government signs, accedes to or ratifies treaties as an executive decision following Cabinet approval. It may be the Prime Minister or the appropriate Minister, normally the Minister of Foreign Affairs and International Trade (or whatever the person is called at the time) who actually “signs” the document in question.

Signing at treaty (which I have said before is like dating is to marriage) is normally done before implementation and implementation is normally done by legislation, which of course is done by Parliament. Ratification (which is like marriage), if and when it follows, is - as stated above - an executive decision of the Government of the day in which Parliament does not have a direct voice or role.

So - if the Throne Speech means that the WIPO Treaties, for example, as such will at some point be “submitted for votes” in Parliament - that would be quite extraordinary. It would also likely mean dissection and debate in a minority Parliament as things now stand. Recall that just a very few of us were able to kill off the Lucy Maud provisions even in majority government - and that was before the days of blogs and the Bulte Effect, i.e. politicization of copyright in Canada. So, it’s very unlikely that any consideration of anything as controversial as DMCA North provisions on DRM and TPMs or national treatment (i.e. doubling) of blank media levies or the potential rendering illegal of P2P music downloading could sail though Parliament quickly on calm seas on a quiet evening, so to speak.

Those issues and many more would certainly come to the fore in any Parliamentary debates about WIPO treaties. It would be more like a dark and stormy night with a very uncertain outcome.

So, this little sentence in the Speech could prove to be very interesting.


Merger news - better late than never

There was an important merger announcement over the weekend in the copyright advocacy and enforcement sector that that did not get the attention it deserved:

Music And Film Industry Association of America (MAFIAA)

April 1, 2006 - Motion Picture Association of America, Inc. (MPAA) chairman Dan Glickman and Recording Industry Association of America (RIAA) president Cary Sherman today announced the historic merger of the two organizations. The newly-created entity is being called the Music And Film Industry Association of America, Inc.
Note the date. Any guesses on whether such a merger might follow in Canada and what the new entity might be called?


Tuesday, April 04, 2006

Trick or Treaty?

From today's Speech from the Throne:

Significant international treaties will be submitted for votes in Parliament.
Now, what does that mean? I shall try to find out.

Let's hope that this Governmnet has not made up its mind already on the WIPO treaties. Many would consider that to be a less than funny trick.


Sunday, April 02, 2006

Let the © Politi©al Games Begin

We await the Speech From the Throne, which may or may not deal with copyright. If it does, get ready for battle. If it doesn't, get ready anyway.

Apparently, the Liberals in their official opposition capacity are going to hammer away at implementation of the WIPO Treaties and the reincarnation of their dead Bill C-60.

The following is from a March 31, 2006 press release from the Office of Mauril Bélanger, P.C., M.P., Official Opposition Critic- Canadian Heritage. The phraseology is a bit strange. By focussing on WIPO implementation, it looks like the tail is wagging the dog. The dog, of course, should be Canadian public policy.

Ottawa, March 31st 2006- Mauril Bélanger, Canadian Heritage Critic, strongly encourages the Harper Government to pay particular attention to the following three key Heritage issues, deemed priorities: ...

3. Introduce during this Session of the 39th Parliament copyright legislation to incorporate the amendments recommended in 2005 amending the Copyright Act by implementing the provisions of the WIPO (World Intellectual Property Organization) Copyright Treaty [sic] as well as updating certain other provisions of the Act.

The optimum "best before" window for the 1996 WIPO Treaty (actually two treaties) implementation has long since expired. The fact remains that the US and Japan are the only major countries that have ratified these treaties to date, and that was four years ago.

France is now having something of a French Revolution over copyright, it seems.
Consumers are protesting over DRM. And the French legislators are taunting the USA and iTunes, which is as America as "Apple"® pie. Well, American or British depending on who owns the trade-mark for what purpose. Isn’t IP litigation wonderful?

Germany may be next to waiver. France and Germany are generally regarded as the two most copyright friendly countries in the world. They are true "civiliste" and "droit d’auteur" nations. The EU, which is mostly "droit d’auteur" except for the UK and Ireland, is reportedly embarking on a fundamental review of its copyright directive, which was all about WIPO implementation. It will be led by Bernt Hugenholtz, the bold and brilliant Dutch scholar. All of this suggests that EU WIPO treaty ratification may well be in jeopardy, and at the very least cannot be taken for granted. It is certainly way behind schedule.

The WIPO treaties are not necessarily bad per se. The difficulty is is clearly in finding a means, if possible, of implementing them that is good and not bad for Canada. Whether this can be done is not clear. Certainly, it can’t be done in Canada's interest the way CRIA and the American DMCA champions call for.

Back to Canadian politics. Despite his involvement with the Parliamentary Committee that brought us the regrettable Bill-32 as it emerged from the backroom, and his stint as Parliamentary Secretary to the Minister of Canadian Heritage 1998-2000, Mr. Bélanger has been a thoughtful and diligent M.P. On July 20th 2004, he was appointed Deputy Leader of the Government in the House of Commons. He knows how the system works. He played a constructive role in 2004 as member of the Government by listening to the critics and looking with an independent mind at the issues regarding Bill C-36 (the Lucy Maud Montgomery term extension effort that mercifully never was passed). Let’s hope that as the official opposition's Heritage Critic, he can move beyond the letter of Bill C-60 and take what’s good from it, leaving behind what’s bad and help to craft some really good legislation. There are things that need to be done soon on copyright, such as eliminating the blank media levies and continuing to allow the right of making private copies of sound recordings (in accordance with the Conservative's Policy Declaration of 2005) and eliminating statutory damages for non-commercial "infringement". However, unquestioned WIPO implementation in the American model should not be on the Government's "to do" list.

Given Mauril’s background and his hopefully open mind, he could be a thoughtful, fair and productive opposition critic. Many will be very pleased that he will play this role, rather than Sarmite Bulte, who would very likely have held this job had she been re-elected, which she notably and decisively wasn’t. And the fact that she wasn’t re-elected was probably due in no small part to her copyright polices and her zealous loyalty to campaign contributors and fundraising organizers with strongly pro-WIPO Treaty agendas, most notably CRIA. There are many lessons to be learned for Prime Minister Stepehn Harper, and Ministers Maxime Bernier and Bev Oda in this case study.

And given what WIPO implementation and ratification will mean in terms of TPMs, DRMs (at least as CRIA sees the issues), and the national treatment (i.e. doubling) of private copying levies, the Liberal position may just provoke a differently result to what they intend. Besides, are Mr. Harper, Mr. Bernier, and Ms. Oda going to take their advice on such a sensitive file from the former government? The days when copyright was a non-political and non-partisan issue are gone. CRIA, and its role in the Bulte campaign, the election generally, and all around Ottawa has ensured that we are in a new era. Once again, be careful what you wish for.