Saturday, November 27, 2010

My Response to Mihály Ficsor

Dear Mihály:

Thank you very much indeed for taking the time to respond so fully and so quickly to my post from yesterday when you are so busy and en route to Rio.

My points were not “ad hominem”. Indeed, in your case, I would be much more inclined to be on the “pro hominem” side. This is because I have known you for so long (at least 25 years) as a passionate defender of your very carefully researched positions, and as a man of unbelievable energy and extraordinary accomplishment.

Indeed, you were the catalyst and your writings were the main reason why I personally fought a very interesting and potentially very important court case in my own name at enormous expense in terms of my own time and that of my firm and another very fine law firm, over the refusal of a Canadian Parliamentary Committee to let me provide it with useful written documents on national treatment and private copying levies.

The most important document by far was a substantial excerpt (I assure you, however, that it was “fair dealing”) from your still indispensable 2002 book on “The Law of Copyright and the Internet” published by Oxford University Press - which can be purchased here.

The reason that the Committee refused to accept your material was, incredibly, that it was not in both English and French. And I had naively thought that Canada is a bilingual country - especially in our Parliament! The Committee, and later the Courts, however, took the view that “either” official language means “both” official languages and that the word “use” means the right to speak orally but not in writing. See here and here.

Unfortunately, I did not succeed in getting the Supreme Court of Canada to hear this case, which many believe was wrongly decided. My belaboured point here is that I not only would - but did - go to extraordinary lengths to get Canadian policy makers to consider your opinions.

As for the “lobbying” issue, I was certainly was not suggesting that you are or ever have been a “lobbyist” yourself. Indeed, there is nothing wrong with being a “lobbyist”. In fact, as they say, “some of my best friends are lobbyists”. I have the highest regard for Eric and Steve - even though I strongly disagree with them about their views on Canada and “Special 301" and have a hard time resisting any opportunity to say so, as my blog shows over the years, including yesterday. I’ve had a very civilized and public debate with Steve over this at Fordham. They are both real gentlemen and quite brilliant. That does not mean, however, that one cannot disagree with what they say.

It is obviously inevitable but still somehow sad that professional lobbyists have become so much a part of the copyright world. Indeed, the first Canadian Bill C-32 in Canada back in 1996 was said to be the most lobbied bill on any issue in Canadian history to that point in time - and I was reported (quite flatteringly but erroneously) to be one of the most active lobbyists at that time. The role of lobbyists in the current Bill C-32 is even greater. The involvement of lobbyists is inevitable, I suppose, because of the vast amounts of money involved, the strongly polarized views, and the difficult and technical nature of the subject matter, which requires great skill in communication and diplomacy to make it understood to those in government and the media.

As for my reference above to Greenberg, Traurig, I relied on the press release obligingly generated by Google but did not check the site deeper to see if you are still listed, which you are not. Theretofore, I have struck this reference from my post from yesterday.

Thanks again, Mihály, for your thoughts. I, too, affirm our friendship and look forward to seeing you again at Fordham - where I hope that Canada will get some attention this year. Your concern about Canada and our difficult quest to modernize our copyright legislation - along with your views on everything else - will be, as always, of the utmost interest and importance.



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