Monday, March 19, 2007

CBC, serious music and copyright - the connection

I have sent the following open letter to the Heritage Committee. The connection to copyright is real - though not obvious. The Heritage Committee has subscribed to the partly correct - but only somewhat so - view that stronger copyright law will produce greater cultural achievement. In terms of serious or "elite" culture, that is almost never the case. Subsidies or direct funding - whether from Kings, philanthropists, or taxpayers have almost always carried the day.

The destruction underway at CBC to serious new music programming coupled with SOCAN's lack of interest or ability to adequately deal with "concert music" has created a real problem for serious composers in Canada. SOCAN at least is relatively transparent. The NRCC and all of its money and its treatment of serious performers remain a major mystery.

All the more reason why the current CBC management must be held accountable for the damage they are doing....


March 19, 2007
Hon. Gary Schellenberger, Chair
Hon. Members
Canadian Heritage Committee
Dear Honourable Members:

As a listener to CBC for more than 50 years, I am saddened and angered by the destruction underway of the excellence we once knew as Radio Two.

Current management at CBC radio is no longer interested in reaching an audience older than 50. Please remember, however, that those of us over 50 still pay lots of taxes and have lots of votes.

CBC management clearly believes that any programming that could possibly be considered to be elitist or erudite must be eliminated. Of course, the irony here is that the headlong rush to increase ratings by embracing mediocrity will only result in renewed efforts to disband the CBC - because the CBC could so come to so resemble the private sector that there will arguably then be no need to keep it - or to give it a billion dollars a year in subsidies. At the rate things are going, it will only be a question of time until it is handed over to the private sector - likely with disastrous financial consequences for the taxpayer. Is that the agenda? One hopes not. Canada without a CBC committed to excellence would be a much poorer country in which to live.

CBC management seems to have lost sight of the CBC's obligation under the Broadcasting Act to provide programming that "informs, enlightens and entertains". It seems that the entertainment factor is all that matters now. The CBC was never under any obligation to gain audience share by sacrificing quality. Indeed, quite the contrary.

The cancellation of the Two New Hours program - which had been on the air on Sunday night at 10 o'clock for almost thirty years - is a particularly regrettable example of the damage now being done. In its way, this show was to serious new music what Hockey Night in Canada is to our national sport. This show not only encouraged and sustained much of the activity in serious concert music in Canada. It figured prominently in making Canadian serious composers and performers known throughout the world. Its host and producer are world renowned artists in their own right. It set technical and artistic standards of excellence and built a core community that made Canada proud and raised the bar of musical achievement and heritage.

Now, it is gone. By dissipating the Two New Hours team and its very loyal interactive community of listeners and eliminating that locus and focus every Sunday night at ten, CBC management has done much harm. When bureaucrats with little or no background in either broadcasting or the arts are given control of a 70 year old legacy, it seems they must make their mark by destroying it. I hope they will be held accountable beginning with the Heritage Committee hearings underway this week.

Howard Knopf
1200 - 427 Laurier Ave. W.
Ottawa, Canada

Wednesday, March 14, 2007

Vancouver 2010 - let the litigation begin!

Attention advertisers, and artists of all kinds but especially documentarians, photographers, etc....

Get ready not to "use" such words as "Vancouver" and "2010" in the same context unless you want to be sued by the rich, aggressive and historically ultra-litigious Canadian Olympic machine.....

Bill C-47 would be the most fundamental alteration to Canadian trade-mark law in over 50 years - and all for one special interest group that happens to have a lot of tax payer funding behind it...

The concept of a special Olympic bill isn't bad per se and this one could be worse but still needs a lot - and I mean a LOT - of work in Committee...

Some of it's flaws are explained in Jennifer Ditchburn's CP story, which quotes your's truly....

And yes - it relates to copyright. Because many of the protected marks are also capable of copyright protection and you can be sure that the painful absence of a satire and parody exception in Canadian copyright law will be exploited by the Olympic lawyers without humour and without hesitation.


Saturday, March 10, 2007

From the Boiler Room to Spamalot to SOCAN's Proposed Internet Tariff 22

Michael Geist and Paul Kedfosky note that the SEC has suspended trading in 35 companies that use spam to tout stocks, an astonishing eight of which "were either headquartered in Canada, or had offices there."

I suppose that there is some perverse comfort in confirming the predictability of certain phenomenon:
  • Bad corporate behaviour emanating from or with a real and substantial connection to Canada often gets prosecuted not in Canada or not first in Canada but in the USA.
  • Before there ever was the internet or e-mail, there were stock market "boiler rooms" that touted stocks over the phone and across borders.
Canada's Supreme Court long ago held that a boiler room operator who arranged his affairs across several jurisdictions and was bilking Americans from the Toronto telephone sales solicitation room could indeed be prosecuted here in Canada. The case of Libman v. The Queen, [1985] 2 S.C.R. 178 is one of the seminal "real and substantial link" judgments.

And what, you might ask, does this have to do with copyright? The Libman case is is proving to have a real and substantial effect on Canadian copyright law as seen in the SOCAN v. CAIP decision from 2004 - which will no doubt loom large in the renewed round of SOCAN's eternal quest to achieve and enforce "Tariff 22", coming once again to the Copyright Board next month,.


Thursday, March 08, 2007

WIPO & Kyoto - Signature v. Ratification

Further to John Ibbitson's March 7, 2007 column in the Globe and Mail, Michael has a good post today on the difference between signature and ratification.

In addition to the example given by Michael and quite possibly the most egregious example in the current climate, as it were, of a treaty signature not being followed up by ratification, consider that of the USA and the Kyoto Protocol.

As of July 10, 2006, the USA is listed as having signed Kyoto in 1998 - but has not ratified it.

Here's what Wikipedia has to say:

The United States (U.S.), although a signatory to the Kyoto Protocol, has neither ratified nor withdrawn from the Protocol. The signature alone is symbolic, as the Kyoto Protocol is non-binding on the United States unless ratified. The United States was, as of 2005, the largest single emitter of carbon dioxide from the burning of fossil fuels.[42]. China is projected to take over at the top of the table by 2030.[43]

Although the USA has apparently thought about and looked into how it might go about the unusual if not unprecedented step of legally withdrawing its signature from Kyoto, it appears that it has not done so to date.

To continue with a metaphor that both Michael and I have used, folks who live in glass greenhouses ought to be careful about throwing stones.

It is wrong both in fact and law and seriously misleading for anyone to suggest that Canada has any international legal obligation to ratify the 1996 WIPO treaties. Canada may choose to do so but is not required to do so. Period.


Wednesday, March 07, 2007

Canadian Copyright, Kyoto, Cacaphony, Conflation and Confusion

I have never seen as much pressure, spin, and propaganda on Canadian copyright as I have in the last few months - climaxing in today’s story by John Ibbitson in the Globe and Mail comparing Canadian copyright policy to the Canadian Kyoto imbroglio. He says:

With each failure, American frustrations will grow, along with pressure for linkages -- taking action in other trade areas to punish Canada for failing to pass a new copyright act. What should matter to all of us, though, is Canada's reputation before the world. If the best we can do on this, as on so many other files, is shrug and say, "Sorry, the federal government is too unstable for us to act," what does that say? When did Canada become Italy?

The American music and movie industries are getting hysterical about counterfeiting - while there is no credible evidence that there is any more availability of counterfeit products in Canada than anywhere else. In fact, if what you really want is a fantastic selection of cheap fake Rolex watches or Louis Vuitton handbags, go to New York and just shop till you drop on Canal Street or even right on Fifth Avenue where the street vendors have very good deals on whatever you may wish - just don’t ask for a receipt or a warranty. And don’t ask for the Americans to drop their hypocrisy on this issue.

I can only conclude that there is a very deliberate and highly organized attempt to confuse and conflate counterfeiting and piracy on the one hand with legitimate grey market goods, user and artist friendly fair dealing exceptions and freedom from oppressive DRM and TPMs on the other hand. Credulous journalists and politicians are the targets.

Of course, nobody supports counterfeiting. But broadly attacking it with unnecessarily potent weapons and without proven targets or surgical precision is rather like an aimless war on terrorism and dubiously existing weapons of mass destruction - or in this case weapons of mass distribution. The result will be predictably messy, counterproductive and highly controversial. It could even breed its own insurgency.

The American government and the lobbyists who are pushing it to push Canada wish to preserve business models that no longer work in the digital age. They are seeking to strengthen old copyright laws designed for $25 high margin albums and DVD movies - when the world has moved on to the Internet, Google, iTunes, YouTube and beyond. The Canadian independent music industry understands the difference - and has cut its ties to the four foreign majors on these issues.

Canada meets or exceeds its international legal obligations. Canada has not ratified the 1996 WIPO treaties and is under no obligation to do so. Signing a treaty is like dating. Ratifying is like marriage. We’ve gone on a date with the WIPO treaties. That’s all. Some have urged that we do more. But many observers would seriously question whether it was even a good date or a bad one.

The American copyright industries want an all or nothing ratification approach along the lines of the dreaded American DMCA legislation - an approach taken so far only by the USA and Japan amongst major G8 members. Europe has not ratified these treaties - and the controversies there are growing rather than waning.

The thought of Canada being on the US “priority watch list” falls somewhere between a joke and an honour, as I’ve stated before. The US entertainment industry and the American Government are going straight to the top in Canada over this issue. But Ibbitson correctly points out that this isn’t the same as softwood.

Indeed, in important ways and in the long term, it may be even more serious than softwood. What this is about is political and cultural sovereignty. What’s good for General Motors may once have been good for the USA - and what’s good for the American entertainment industry may indeed still be good for America but has usually not been good for Canada. We simply don’t need a Department of Canadian Heritage if we don’t have any Canadian heritage. Canada needs copyright sovereignty as badly as it needs sovereignty in our Arctic, our army or in our health care system. Let’s hope Canada’s new government takes all the time it needs to get this right - for Canada.