Monday, September 17, 2007

EU Court Upholds Microsoft Competition Ruling

From the EU Court of First Instance ruling today upholding Commission's large fine and its finding of abuse of dominant position regarding IP:
It is only when it is accompanied by exceptional circumstances such as those hitherto envisaged in the case-law that such a refusal can be characterised as abusive and that, accordingly, it is permissible, in the public interest in maintaining effective competition on the market, to encroach upon the exclusive right of the holder of the intellectual property right by requiring him to grant licences to third parties seeking to enter or remain on that market. It must be borne in mind that it has been established above that such exceptional circumstances were present in this case. (para. 691)
Here's a good article from the IHT.

Here's the CFI decision itself and the Court's press release.

And here's the response from Microsoft's top lawyer and Senior VP, Brad Smith.

It will be interesting to see if antitrust/competition law enforcement in intellectual property ever gets back on track in Canada.


Friday, September 14, 2007

Otttawa Citizen on Copyright Lobbying

Deirdre McMurdy - who is a new face on the copyright journalism beat - though very experienced on related matters - is off to a very good start on the next revision round with an excellent article on copyright lobbying, in today's paper at the Canada Page 4 and here.

It is fairly detailed and well balanced - and even includes your's truly.

She concludes:

Whatever the results from the latest inter-departmental sessions and briefings, there are lots of sequels ahead. All of them coming to the big screen soon.


Wednesday, September 12, 2007

Economic Value of Fair Use - Size Matters

A very important study by the CCIA on the economic value of fair use in the USA has just been released.

Here's Gigi Sohn's (Public Knowledge) take on it:
“CCIA should be congratulated for sponsoring this significant project. For years, the copyright industries have made their case for restricting the rights of consumers based on the argument that their industry makes a significant contribution to the economy that could be jeopardized by fair use rights.

“The results are telling. While the content industries claim employment of 11.3 million workers in 2005, the CCIA study found industries depending on fair use employed 17.3 million people in 2006. While the copyright industries claim to have generated $1.3 trillion (or 11.2% of Gross Domestic Product), the CCIA study found that fair-use industries generated $2.2 trillion in 2006.

“This report should guide policymakers and others who want to tilt further the copyright laws away from a reasonable balance between creators on the one hand and consumers and innovators on the other. The report presents a clear case that the harm to the economy could be more significant than previously thought by following a radical content industry policy that diminishes legitimate lawful use of copyrighted material.”
(emphasis added)

Couldn't have said it better myself.


Friday, September 07, 2007

Joyful noise from the EU

EU Directive Limits Orchestra Loudness

Published: September 7, 2007 VIENNA, Austria (AP) -- Shhhh! Mute the brass, and please -- go easy on the cymbals! A European Union directive on noise abatement contains a provision that will limit the ''noise'' of symphony orchestras beginning early next year. While it's not meant to ban Beethoven's ''ba-ba-ba-baah,'' some musicians are worried overzealous enforcement could take the ''Joy'' out of the German master's exuberant ''Ode to ...''

And what does this have to do with copyright? Well - I'm glad you asked.

Given the way the EU can work, there could be a conflict between the noise abatement directive and deeply entrenched moral rights principles in copyright law. Some particularly noisy composer (no names) might well complain that his or her music isn't being played loudly enough.

And then we could have litigation, with one set of laws conflicting with the other and various directorates in Brussels engaging in noisy internecine turf warfare.

And we could have moral rights of performers who want to play louder (usually trombone and percussion players) pitted against those who want to play softer (e.g. clarinetists and violists) and in turn those of the composer...not to mention the conductor...And large orchestras have over one hundred performers...

And then there's the cultural diversity issue....

And it could all end up in the European Court of Justice...

And if you don't believe me about moral rights of performers, see Article 5 of the WPPT.

Maybe the answer would be a noise rights collective, that could deal in noise credits in a manner analogous to carbon credits and distribute the proceeds in a fair and equitable manner...

But I shouldn't give out ideas here... somebody in Canada may decide that another collective is just what we need... After all, we only have about three dozen now.

What fun copyright law can be!


Thursday, September 06, 2007

Breakthrough at the Copyright Board on architectural plans?

Mr. Justice Vancise, who is the Chairperson of the Copyright Board and a Court of Appeal Judge in Saskatchewan has presented what seems to be an annual tradition, namely a speech to IPIC in the latter’s copyright course given in August.

In this speech, Justice Vancise describes at length the Board’s activities concerning unlocatable copyright owners. Most of these files are very routine, and likely do not or should not (in my view) involve any significant time on the part of board members. The one decision where the Board members apparently got seriously involved (Breakthrough Films) is very problematic in many ways, which I’ve touched upon elsewhere.

Justice Vancise says that there will be an announcement soon about what the Board will do about architectural plans, when the architect cannot be located and someone needs copies of the plans from city hall. A very large number of the Board’s issued licenses where the owner is unlocatable (about 60 out of 206 or about 29%) arise from this situation. Apparently, the city solicitors in Ottawa and Calgary in particular will not allow copies of filed plans to be made for renovation or other construction work without either permission from the architect or a Copyright Board decision.

The Supreme Court of Canada held in 1971 that permission is not required to make copies of architectural plans in this kind of circumstance - because there is an implied right to use them and make copies for such purposes. The case is NETUPSKY et al. v. DOMINION BRIDGE CO. LTD. (1971) 3 C.P.R. (2d) 1 SCC Varying 58 C.P.R. 7 Reversing 56 C.P.R. 134.

The Court stated at page 7:
In the circumstances of this case, it is clear that the changes or modifications not only were not forbidden but were in contemplation at the time when the City of Ottawa and, through it, Dominion Bridge, its sub-contractor, became the licensee of Netupsky for the construction of its Civic Centre. Such a licence carries with it an implied consent to make the changes which Netupsky should have made and refused to make, and also, an implied consent to reproduce the plans in as many copies as might be necessary for the construction of the work.
While that decision may have been based upon particular circumstances, there is no reason to suggest that its overall principle would not apply generally.

If the city solicitors haven’t read this case or don’t read it the way I do, then the Copyright Board should issue a ruling once and for all going through the case law in order to make this problem go away. It is clearly a waste of the Board’s staff time, and an obvious source of significant costs and delays to anyone needing to do any building renovation or other construction work requiring old plans in Ottawa or Calgary. As anyone who owns a home or a building knows, delays cost money when work needs to be done.

It serves no useful purpose and can only promote considerable disrespect for copyright to invoke copyright law to delay the obtaining of copies of old blueprints to repair or renovate old buildings when the result will be long delays and great expense and the architect of the plans is no longer around and likely wouldn’t be entitled to any money or to deny permission anyway. There is an implied right of the owner of a building to repair or renovate that building, and the plans may be essential for that activity - for efficiency and even safety purposes.

Hopefully, this is what Justice Vancise has in mind. Such a change in Board practice would be better late than never. I have no knowledge of what the announcement will be - but I hope I’m right.


Wednesday, September 05, 2007

Knopf v. Speaker of the House of Commons - the Appeal

Here's an update to the litigation in Knopf v. Speaker of the House of Commons, which I wrote about last year, when the Federal Court decision came out (wherein I lost).

The Appeal was heard yesterday, September 4, 2007 in the Federal Court of Appeal. Here's the Ottawa Citizen's report on it by Jack Aubry.