Friday, January 19, 2007

WIPO Broadcasting Treaty - Update January 19, 2006

The current "non-meeting" is over.

There will be another meeting around June 18-22, 2007. There is supposed to be documentation ready and circulated no later than May 1, 2007 in preparation for that meeting.

If there is no consensus on a signal based approach in the June meeting, there will be no diplomatic conference later this year. But for a variety of reasons and complex politics, that doesn't mean that this initiative will then necessarily die.

In spite of the fact that there is been little progress on this in 9 years, and the Chairman and the WIPO Secretariat do not appear to be hearing many things they do not wish to hear, including the strong message that only a signal based approach will fly, the "non-papers" still focus on exclusive rights - which is where the money is, particularly in retransmission.

Here's a couple of terrific blogs to provide more detail:

Jamie Love, with his superb communication skills, has probably done more than anyone to expose the problems of this proposed treaty. He writes about it in the widely read Huffington Post.

The EFF provides a detailed analysis and narrative of what happened and didn't happen in the last three days.

This initiative has tremendous potential for danger to the progress of new technology, the future of the public domain, and the imposition of new costs and controls on consumer behaviour.

To the extent that the broadcasters have a case - and they do in some respects and in some countries - they may wish to consider a far less overreaching approach.

Now that some formidable corporate and NGO opposition has lined up and been energized, the momentum for this treaty has apparently been lost.


A WIPO "Non-meeting"?

There were a bunch of "non-papers" delivered by the Chairman that either were done at the very last minute or presumably could have been sent out ahead of time.

Apparently, there was a "non-slide" presentation about the objectives of the proposed treaty.

And some "non-conclusions."

Manon Ress has the latest.

According to her:
The chair did not want "too many to speak" but had to let India make its statement. Asking for clarification, India describe how the list of matters did not reflect agreement and was just a list of matters that have been discussed for years. According to the mandate, only matters where agreement was reached should be listed.

The plenary ended on that note. People here are puzzled. If you only point to agreement (on or off the record it seems), the non-conclusions might end up very very short. Would that mean that this meeting did not really happen? Like a non-meeting?

Thursday, January 18, 2007

WIPO Broadcasting Treaty - Update January 18, 2006

Here's a key part of the Chairman's "non-paper" proposal today for a supposed signal based non-exclusive rights based approach:

SCCR/15/2: Article 9, 11 and 14

Rights in the Broadcast

Broadcasting organizations shall enjoy the exclusive right of authorizing:

i) the simultaneous or deferred retransmission of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks; and

ii) the fixation of their broadcasts.

SCCR/15/2: Articles 10, 12, 13 and 15

Protection of Uses Following Broadcasting

Broadcasting organizations shall enjoy adequate and effective legal protection in respect of
i) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts;
ii) the making available to the public of the original and copies of fixations of their broadcasts;
(iii) the making available to the public of their broadcasts from fixations, by wire or wireless means, in such a way that members of the public may access them from a place and a time individually chosen by them; and

iv) the communiation to the public of their broadcsts, if such communication is made in places accessible to the public against payment of an entrance fee, or using very large screens in places accessible to the public, or made in a profit making purpose.

If it looks, smells and walks like exclusive copyright rights, then maybe that's what it is.

More from Manon Ress here.


The Sky Isn't Falling

10% Growth in Overall Music Sales; Digital Track Sales Exceed 120% Growth

TORONTO--(BUSINESS WIRE)--Nielsen SoundScan Canada, the entertainment industry's data information system that tracks point-of-purchase sales of recorded music product and Nielsen BDS, the music industrys leading music performance monitoring service, have announced their 2006 Canadian year-end sales and airplay monitoring data, for the 52-week period January 2, 2006 through December 31, 2006.

OVERALL MUSIC SALES (01/02/06 12/31/06)


UNITS SOLD 2006 2005 % Chg.

64.1 58.4 9.8%


More details here.

There are a lot of businesses that would love to see those numbers - and they aren't whining, and wining and dining Ministers, MPs, and senior officials for extra strong interventionist windfall monopoly rights.

The digital track sales are particularly impressive.

Hat tip to Jon Newton.


Wednesday, January 17, 2007

Copyright and Canadian Politics 2007

Kady O'Malley has a rousing and provocative leading piece on copyright and Canadian politics in quoting BoingBoing's famous author/blogger/co-founder Cory Doctorow and myself and referring to Michael Geist's work.

The catchline says it all:

The copyright lobby that claimed credit for taking down a Liberal MP sets its sights on the Heritage Minister

She reminds readers of the story of Sam Bulte's defeat and suggests that there are lessons to be learned for those in power today.

Ms. O'Malley has just moved on from the influential but niche circulation Hill Times, where she did great work for years on copyright and the Ottawa lobbying machine behind it.

She will now have a much larger audience. She also does a lot of TV work.

And speaking of large audiences, Cory Doctorow has over 2,000,000 unique readers each month and he is all over the copyright issue. Many of his readers are bloggers themselves.

Here's Cory's take on the current copyright situation in Canada.


WIPO Broadcasting Treaty - Update Janaury 17, 2006

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is holding its First Special Session from January 17 to 19, 2007.

The first day apparently was filled with the sounds of silence as delegates from many countries and NGO's gathered in Geneva. Little happened. The Chair - Mr. Liedes - finally handed out some documents.

According to William New of IP-Watch:
Liedes doled out his non-papers sparingly during the day only when it was clear member governments were not going to proffer their own, he said. “There is no master plan … no mandate on what to do,” Liedes said afterward. He said he decided to put forward “something that reflects my understanding” of positions.
It's not clear why delegates are convening in Geneva to be handed brief documents that could presumably have seen sent out earlier by e-mail. Delegations need time to analyze and need instructions.

IP-Watch has a detailed report on today's events, including the text of the documents.

It's worth recalling that the monumental Berne Convention went from being a glint in someone's eye to fruition in three years from 1883 to 1886 when the telegraph was high technology and steam ships were still fairly new technology. This current effort concerning a broadcasting treaty has been going in earnest since about 2000 and traces back even further - about 8 or 9 years.

There's a lesson to be learned here. But I'm not quite sure yet what it is.


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.


Sunday, January 07, 2007

Public Domain Registry? McLean delivers another instalment...

Almost a year ago, Access Copyright ("AC") announced - with great fanfare and some acclaim - a public domain registry project.

Some notable people and organizations were involved, especially Creative Commons ("CC") - both in the USA and Canada. I always wondered what was in this partnership for the CC organizations, since AC has no obvious particular expertise or comprehensive database of death dates to contribute to this effort. AC does have oodles of money - but I don't know why a Wiki-based project would need to cost a lot of money. CC would appear to have much more to contribute than AC. On the other hand, the halo effect of a partnership with Larry Lessig, CC, etc. for Access Copyright was quite obvious. Anyway, I and others have waited to see what might materialize. So far, I'm not aware of any more specifics or publicly announced deliverables, or even a timetable. I'm confident that the project was conceived in good faith and with much enthusiasm, and would serve a useful purpose if it ever materializes. But so far, it appears to remain at the announcement stage...

On the other hand, the redoutable Wallace McLean continues with his third annual edition of Public Domain Day 2007 - with a list of some notable (Billy Bishop, H.L. Mencken, etc.) and many forgotten creators whose work became part of Canada's proud public domain on January 1, 2007 and some material on US PD issues. And some good, trenchant commentary. Wallace doesn't have grants, committees, partnerships, or anything of the sort. What he lacks in resources, he makes up with resourcefulness and enthusiasm.