Monday, January 15, 2007

What to look for in 2007 in Canadian Copyright

Here are some big copyright issues to track in 2007 - roughly in the chronological order in which I believe they will unfold.

1. Kraft v. Euro Excellence - on January 16, 2007 the Supreme Court of Canada will begin its Winter 2007 session by hearing the appeal in this very important case about copyright and parallel imports. I’m involved in this case as counsel for an intervener, Retail Council of Canada - so I won’t say anything more for the time being. Here’s the Supreme Court’s summary of the case. For those in Ottawa who wish to attend, the hearing will begin at 9:30 AM. Public seating is limited.

2. The WIPO Standing Committee on Copyright and Related Rights (SCCR) will hold its First Special Session from January 17 to 19, 2007 in Geneva on the proposed WIPO Broadcasting Treaty. This has been a lengthy effort that has included many previous meetings, all aimed at establishing a treaty that could give broadcasters and cablecasters, such as speciality channels CNN and A&E, sweeping copyright-like exclusive rights in their transmissions - above and beyond the underlying content. Webcasters tried unsuccessfully to climb onboard. It was - and remains - a very complex and arguably far too encompassing and unpredictable solution to what is arguably a very narrow problem largely concerning the “piracy” of live signals of sporting events, etc. in some smaller countries. Broadcasters, for their part, want an exclusive retransmission right - which would enable them to collect considerable revenue from retransmitters, such as cable and satellite companies. In its recent iterations, many have been concerned that the treaty as contemplated could also effectively elongate protection of underlying content virtually forever - even public domain content. And, increasingly, broadcasters’, cablecasters and copyright owners are converging and are one and the same. Now that some big business interests have finally realized some of the potential problems with the treaty, the USA has pulled its support for the wide exclusive rights based approach. It is possible that a much narrower signal based approach could be adopted. If that doesn’t happen, the treaty initiative is likely to fizzle - though possibly slowly. A diplomatic conference is tentatively scheduled for Nov. 19 - Dec. 7, 2007

3. On January 29, 2007, Canada’s Parliament will resume sitting. Talk of an election is in the air. Ministers Bernier and Oda are still in place. The dynamics of a minority government are hard to predict on an issue such as copyright, which obviously is not the sort of issue that would likely defeat a government, but is nonetheless a live grenade that can cause a lot of damage if mishandled, as Sam Bulte well knows. Rumours are that a bill will be introduced soon. Whether the Government will try and in turn succeed in pushing it through the minority minefield before an election remains to be seen.

4. The Copyright Board will hear two very important new cases.

a. One involves the resumption on April 17, 2007 of SOCAN’s still ongoing attempt to collect money for use of of music on the internet. This has been going on since 1995 and has already been to the Supreme Court of Canada once. There are still a number of unresolved legal issues and the internet is a very different place that it was in 1995. Overall questions will involve how many times and to how many collectives and how much must Canadians pay for the same thing - including Canadians who don’t use or consume music on or from the internet in any way at all? More later for sure.

b. The other main hearing will start on June 12, 2007. It is Access Copyright’s attempt to impose a $12 per year fee on every kid in K-12 in Canada. This will be opposed by CMEC, even though that organization shares similar views on many copyright matters with Access Copyright. A big question to watch is the extent to which the 2004 Supreme Court of Canada decision in CCH v. LSUC that empowers a users’ right to engage in research and otherwise opens the horizons of fair dealing will be utilized by CMEC, which has so far shown no cognizance of it in its flagship publication, Copyright Matters!

5. Speaking of Access Copyright, the current round of post secondary Access Copyright licenses expires this year. It’s interesting timing, considering what is happening at the Board on the K-12 front. Let’s see if the AUCC will try to use the CCH v. LSUC decision to significantly reduce the amounts payable and to use the savings to better purposes, such as putting more books in libraries and increasing the amount of information available to Canadian teachers, researchers and students, rather paying more and more times over for less material and less access. Let's see whether CAUT does anything.

6. There is a vacancy at the Copyright Board. The appointment process has changed in at least one way. The vacancy was advertised on the Board’s web site.

7. The Board will at some point rehear the controversial commercial radio tariff, as the result of the Federal Court of Appeal’s ruling sought and obtained by the CAB. But will the Board set the rates even higher than it did before the judicial review? This appears to be a possibility.

8. The Federal Court of Appeal will hear a judicial review application on the ring tones tariff. It appears that the remaining objectors may have may finally figured out that they shouldn’t have conceded that there was a “communication” involved, which I argued strongly early on until my client withdrew from the hearing. It will be interesting to see if the remaining objectors can now raise the issue for the first time in this matter in the Federal Court of Appeal, and what the potential impact of this line of argument could be on other files.

These are some of the things I see on the foreseeable horizon in Canada. But if I’ve learned one thing since law school, it’s to expect the unexpected.


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