Saturday, January 01, 2011

A Dozen Copyright Predictions for 2011

A soothsayer in front of a king: (Olaus Magnus 1555)

Here are a dozen copyright predictions for 2011, mostly but not solely of interest to Canadians:

1.    There will be immediate concern over the Copyright Board’s December 23, 2010 decision to grant an interim tariff to Access Copyright (“AC”), even though no tariff existed before. The cost of the tariff will be payable by the post-secondary educational sector outside of Quebec and be about $48,000,000 over its likely minimum three year duration, based upon AC’s own figure for annual revenue. Indeed, it could last much longer, though possibly in a modified form. Since there are several obviously arguable grounds for judicial review (i.e. “appeal” for non-lawyers), any one of which could result in the interim tariff being set aside, it would be both surprising and controversial if one or more applications for such review were not to be made and vigorously pursued.

2.    In January or February, the Supreme Court of Canada will grant leave to appeal in the CMEC K-12 case. This is the case in which the Copyright Board (upheld by the Federal Court of Appeal) took a very narrow view of fair dealing in the educational sector, holding that anything copied by a teacher or when a teacher tells a student what to read DOES NOT constitute fair dealing. This contrasts nicely with another decision from the Board (also upheld by another panel of the FCA a few weeks before the Court’s K-12 decision) that the provision by Apple  and use by consumers of iTunes 30 second previews in a clearly commercial context DOES constitute fair dealing. The SCC has already decided to hear the previews case. The cases could be heard as early as November or December of 2011. There will be several applications for leave to intervene.

3.    If there is a spring election, Bill C-32 will die, though not with a mere whimper. If an early election kills the Bill, the iPod “tax” and possibly the digital locks and education parts of it could become election issues.  On the other hand, if it is somehow crammed through in what appears to be unseemly haste, there could be repercussions in the election.

4.    Even if there is no spring election, Bill C-32 may still die. Certain collectives and trade associations were still not content with a bill that is strongly weighted in their favour. They have still not learned to be careful what they wish for and that, at least  in copyright law, greed is not good. The Government may have put some water in everyone’s wine - but that wine may be in the process of  turning to vinegar, due mainly to the efforts of insatiable copyright maximalists.

5.    Judge Chin will deliver his judgment on the Google Book Settlement approval case in the early part of the year. It will be dramatic. Google will not be happy.

6.    Copyright trolls will slink, crawl, and/or be pushed or squished back into their rightful places and have to wait for another day and other prey.

7.    The IP misuse doctrine will gain traction in American and Canadian courts.

8.    There will be intense activity and interest surrounding the appointment of the next US Register of Copyright. Let us hope that he or she has the necessary qualities and can rise to the immense challenge of carrying on the tradition and stepping into the shoes of such illustrious recent predecessors as Barbara Ringer, Ralph Oman and Marybeth Peters. That will not be easy and will be impossible if the person is not seen as neutral, expert and already very experienced in both domestic and international copyright law, policy and politics.

9.    Canada will retain and possibly even advance in its position in the USTR “Special 301" hierarchy. The usual suspects will cry “shame” and the usual sceptics will giggle yet again.

10.    Canada will make a free trade deal with the EU. Another non-transparent trade deal that will change domestic law will be concluded outside of Parliament. Say good bye to Kraft and other domestic “Parmesan” cheese. It will have to be called Kraft Krumbly or something else that nobody will like or be able to remember. Hopefully, not too much harm will be done to copyright law, such as a requirement to provide database protection, term extension or controls against parallel imports or counterproductive features of EU copyright law.

11.    The rhetoric and tactics of the copyright debate will get even worse, though this barely seems possible.  The amount of deliberate  disinformation, clearly ghost-written and inaccurate op-eds, misinformed editorials in major mainstream news papers, name calling, ad hominem invective, moral panic terminology, hysteria and attempts by lobbyists to hijack balanced fora in which they do not belong just keep getting more prolific and distasteful.

12.    There may be legislation in the USA enabling grey marketing and parallel imports where copyright is incidental to the product involved or is merely an element of packaging or labelling, whether it be a Toblerone chocolate bar or an Omega watch. We may also need clarification in Canada, and Bill C-32 as it now stands, may be a part of the problem.

Remember, these are only predictions. And, as lawyers are wont to say:

E. and O. E.
(Errors and omissions excepted)

Happy New Year.


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