EXCESS COPYRIGHT

U. of T. and Western Capitulate to Access Copyright

2012-01-31T11:07:00.006-05:00

In an astonishing development that has caught all but a handful by surprise, U. of T. and Western have signed copyright deals with Access Copyright that appear to be an early and complete capitulation to an important battle over the costs and parameters of access to knowledge in Canadian post-secondary institutions.

See here and here.

In a nutshell:

The cost will be $27.50 a year per full time student.
The agreements include an indemnity and digital rights.
The agreements will be until the end of 2013 and will renew automatically for one-year terms during which any party can cancel or renegotiate the agreement based on six months notice. A UWO official says “The new royalty is substantially below the amount initially sought by Access Copyright in its Tariff application before the Copyright Board.”

A few preliminary comments:

This is an 800% increase over the current basic amount of $3.38 per student. Although this eliminates the current $0.10 a page cost for course packs, such course packs are increasingly irrelevant as more and more material is available legally online at no cost or through licenses that the university has already bought and paid for. Many students don’t need or use “course packs” anymore.
It is unclear how this new deal will affect existing arrangements at U. of T., for example, where many course packs have long been printed off campus by third parties, who have been separately licensed by Access Copyright on the basis of a $0.10 a page “royalty”. Since this is to be an “all you can eat” rate, how and by whom is the course printing going to be handled and how will the costs be allocated? Will students who don’t need course packs have to subsidize those who do?
As Access Copyright itself admits, the $45.00 figure was only a “suggested” figure. It may as well have been – and probably was – pulled out of thin air. The comparable rate in the USA – for the relatively few universities (usually the smaller ones) that feel any necessity to pay it – is about $3.75 per head.
Those familiar with the way the Copyright Board usually works might reasonably expect the final tariff to be less than half of the $45 “suggested” rate. Where there are two somewhat rationale rate proposals, the Board usually finds a position somewhere near the middle. Even the K-12 decision, which CMEC appealed, essentially split the difference between the two parties’ positions. $27.50 is a VERY, VERY GOOD DEAL for Access Copyright. In fact, it is about 50% MORE than Access Copyright now gets per university student on average overall in Canada – and this is almost 8 years AFTER CCH. For any number of reasons, including the proliferation of already paid for or cost free legal digital alternatives and reliance on the empowering fair dealing provisions of CCH, one would have expected the payments to Access Copyright to significantly decrease, not to increase.
In the present case, the $45 “suggested” figure was pure conjecture even on the part of Access Copyright. Cutting this back by less than 30% is unlikely to be widely seen as a victory.
The deal supposedly includes an indemnity and digital rights. There is plenty of reason to question whether Access Copyright has any chain of title to any significant amount of the repertoire required by Canadian universities, much less in the digital rights to such repertoire. Therefore, whether Access Copyright has the right to grant these digital licenses and offer any indemnity and whether the universities should rely on such provisions are good questions.
Both of these institutions will almost certainly pass this $27.50 cost entirely on to their students and wash their hands of this issue. Once again, this is more than 8 times the current basic rate under the already controversial interim tariff that most universities have walked away from. Should two leading universities negotiate with their students’ money in a way that will affect the entire post-secondary sector in Canada both quantitatively and qualitatively for years to come?
U. of T. has prepared a document for its student body rationalizing its decision, which is available here. The document contains too many questionable assumptions and assertions to discuss here. However, the most surprising aspect is that the settlement is apparently being rationalized by the rates being paid in Quebec. Suffice it for the moment to say that this is quite possibly the least logical and appropriate rate precedent or proxy that could possibly have been chosen. The document also refers several times to the fear of possible retroactivity of any ultimate Board tariff. This fear is arguably overstated.

Some preliminary questions:

Why would two such prestigious and financially able institutions not stand up to fight against a proposed tariff that is so problematic and expensive?
Why did they not wait to hear what the Supreme Court of Canada had to say about fair dealing?
Why not wait for Bill C11, which Access Copyright proclaims will enhance the educators’ position with the explicit inclusion of "education" in "fair dealing"?
What are the all-important terms and conditions that have been agreed to? For example, did the universities acknowledge that absurd provision purporting to entitle payment to Access Copyright for mere linking? Or the outrageous and privacy invasive demand to monitor professors’ email accounts? Or the completely arbitrary quantitative limits in the proposed tariff?
What effect will this have on the future of current post-secondary case at the Copyright Board?
Will that case proceed and set a tariff that will be effectively “mandatory”? Were the other universities – which had reportedly budgeted two million dollars for this fight and then mostly “opted out” of any dealing with Access Copyright – aware of this development and, if not, how will they react? How can the publicly “agreed” upon and arguably much too high high rate of $27.50 NOT affect the outcome at the Copyright Board for everyone else?
Was the AUCC – which was coordinating the universities’ fight at the Copyright Board – involved with or even aware of this development?
Of immediate concern, when will these agreements be made public? These agreements surely should be made public because tens of thousands of professors and students are now bound by them, whether or not they wish to be. And tens of millions of taxpayers’ dollars per year are now at stake if these agreements become the new normal in Canada.

HPK

PS - Here is a a copy of the executed U. of T. license. It is not in searchable format. At the time of posting, I haven't had a chance to read it yet.

PS - Sam Trosow offers some possible answers to the above questions here.

Seeing Red - Can Copyright Protect the Idea of a Red Bus on a Black & White Background of the Houses of Parliament?

2012-01-25T13:47:00.008-05:00

Does the lower image constitute copyright infringement of the upper one? The highly respected Judge Birss of the Patents County Court in the UK has ruled in Temple Island v. New England High Teas that it does. The images – which are both collages - are clearly not identical. However, there is clearly some similarity in look and feel. The ruling seems to challenge the conventional wisdom in many circles that taking a picture of a public place taken from the same perspective and under similar conditions to an earlier picture is not an infringement. The idea of a red object or figure on an otherwise black and white background is hardly new. In fact, the Plaintiff got the idea from the famous film Schindler's List. The ruling is controversial and has been discussed by in some detail by my favourite feline IP bloggers at the 1709 Blog and the IPKat blog.

Americans will not be particularly astonished by this ruling, given that the US 2^nd Circuit ruled in 1992 that Jeff Koons sculpture at the bottom infringed Mr. Rogers photo above it. See Rogers v. Koons.

For more on Jeff Koons' various copyright cases, see here - from whence the above images come.

The Koons decision is a major and controversial milestone in the American law of fair use. The UK decision - which is not binding on higher courts - does not mention fair dealing.

HK

Stop SOPA & PIPA - No New Excess Copyright blog posts on January 18, 2011

2012-01-17T22:59:00.003-05:00

FACT, FICTION, AND FALSEHOODS ABOUT THE “F WORD” IN COPYRIGHT LAW

2012-01-16T08:50:00.017-05:00

From the January 16, 2012 edition of the Hill Times:

FACT, FICTION, AND FALSEHOODS ABOUT THE “F WORD” IN

COPYRIGHT LAW

We must confront the “F word” in copyright law. It is not a dirty word. To the contrary, the Supreme Court of Canada went to great lengths in its landmark 2004 CCH v. LSUC decision to clearly describe the meaning of this word in the context of what it called “users’ rights”. That case involved the right of profit-seeking lawyers to engage in research on behalf of even their commercial clients. The CCH decision - arguably the Magna Carta of Canadian copyright law – was, in fact, all about the “F word”. The word, of course, is “fair”, as in “fair dealing” or “fair use”, as the Americans call their “kissing cousin” of our Canadian doctrine. Unfortunately, many who should relish and rely upon the word are afraid to do so or to even talk about it because they don’t understand, or haven’t been accurately told, what the word actually means.

A particularly disconcerting but hardly isolated example of this fear of “fair” dealing has recently come to light. Here is what the website of McMaster University, one of Canada’s more prominent research institutions, says on its FAQ concerning “Copyright in the Library – Course Reserves”:

The AUCC [Association of University and Colleges of Canada] Fair Dealing Policy states that library reserve must not substitute for the purchase of books, coursepacks or other published materials, which means that textbooks cannot be placed on reserve. (Emphasis added)

The emphasized portion is simply wrong. Let’s be clear. It is perfectly legal under copyright law to put any printed book on reserve for the simple reason that doing so involves no act of reproduction or anything else mentioned in the Copyright Act. Unfortunately, it seems that other university libraries also question whether they can put a required reading textbook or indeed ANY “textbook” on reserve.

It does not matter if the books are required reading. In fact, that is often the very reason why books are placed on reserve. It does not matter whether the book is a “textbook”, a “treatise”, a “reference”, simply an interesting book or falls into more than one of these categories. A book is a book. The professor requesting the “reserve” treatment and the librarian facilitating it are entitled to presume that the book will not be copied illegally.

Sadly, such incorrect views about library reserves are just the tip of an iceberg of other fictions in circulation concerning fair dealing and other users’ right. This particular misunderstanding does not come from any Copyright Board or court decision. Nor has the issue of putting printed books on reserve arisen in any of the cases currently before Canada’s Supreme Court. In fact, it does even not come from the AUCC policy, which is widely regarded as being much too restrictive, that McMaster purports to rely upon. The AUCC FAQ actually state that “The fair dealing policy does not apply to placing an original work on library reserve because no reprographic or electronic copy is made. There is nothing that would prevent putting the original work on library reserve.” It would seem that McMaster’s flawed reserve policy may have come from Access Copyright, the powerful reprography collective empowered by Canada’s Copyright Board. Access Copyright misstates on its website that:

The AUCC fair dealing policy clearly states that: …

Required course readings cannot be put on library reserve.

One wonders why this false statement by Access Copyright remains posted and, apparently, not contradicted. But while the AUCC got the “reserve” issue right, at least for “original works” (presumably meaning printed books, journals, etc.), its fair dealing policy may, however, be causing real problems in several other ways. Questions have arisen as to whether its provisions are unnecessarily arbitrary and limited. It is also regrettable that, rather than educating its members about their rights and encouraging them to exercise their freedoms to their fullest extent, the AUCC imposes restrictions that could arguably result in a gratuitous concession of key users’ rights confirmed in the 2004 CCH v. LSUC decision. Above all, there is serious concern that these guidelines could become the new “normal” in Canada and thereby be adopted by the Copyright Board and even the courts as indicative of what constitutes “fair” dealing.

Another recent example of a faulty position based upon a misunderstanding of users’ rights and fair dealing was the written policy of Library and Archives Canada that required the author of a thesis to obtain written permission from third party copyright owners for the inclusion of any excerpt from any copyrighted work. This policy was apparently oblivious to the fact that the quotation of a less than a “substantial part” of a copyrighted work requires no permission and that even a substantial part may be quoted without permission if it falls within “fair dealing”. Several universities were imposing this incorrect policy. I am pleased that the error seems to have been rectified following its exposure on my blog.

One is hearing time and again from conscientious academics, students, and the librarians who serve them that they are being seriously impeded in their pursuit of teaching, learning and innovation by a made in Canada copyright chill. In order to lessen this chill, educators need sound understanding of their freedoms and of what “fair” means in copyright law. The Supreme Court has clarified in the CCH decision that exceptions to copyright infringement are “perhaps more properly understood as users’ rights”, that “they must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained”, that allowable fair dealing purposes “should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights, and that “User rights are not just loopholes”. Users need to be encouraged to use their rights, and not made afraid to do so. “Fair” dealing in copyright is about freedom, and not about fear. It should not be an “F word”.

Howard Knopf

Howard Knopf is Counsel to Macera & Jarzyna, LLP in Ottawa, Canada. He writes a blog on copyright issues called “Excess Copyright”. The views expressed herein a solely his own and are not legal advice.

PS - There are several other interesting pieces on copyright in today's Hill Times, which has a special Policy Briefing on Media & Copyright.

PS - Yesterday, I received the following email from Anne Pottier of McMaster, which I am posting with her permission. The FAQ in question has now been updated.

"Anne Pottier" 17/01/2012 3:56 pm

Good afternoon Mr Knopf

The following entry in your blog was brought to my attention yesterday - http://excesscopyright.blogspot.com/2012/01/fact-fiction-and-falsehoods-about-f.html

We have a Copyright Working Group which when working on the implementation of the AUCC Fair Dealing Policy had interpreted the clause 16. c) "the use of library reserve must not substitute for the purchase of books, course packs or other published materials" too narrowly, failing to take full note of the introductory statement which reads:

15. This policy applies to paper copies made by a staff or faculty member for library reserve, and to electronic copies made by a staff member of the university library or other administrative unit from Published Works for a student of the university.

Once we realized this, we revised our Copyright in the Library - Reserve (FAQ) right away, on September 22nd. I was surprised to see that this information has not been updated on our university's copyright website. I have contacted the person responsible for this website asking that this information be updated as soon as possible.

We updated our library information and course reserves pages at the time, and sent email blasts to our professors and instructors.

I am sorry this information did not get updated right away, and that this has caused confusion beyond our own institution.

Please let me know if anything else is unclear.

Thanks

Anne

Anne Pottier
Associate University Librarian, Library Services

Crown Immunity Argument Rejected by Copyright Board in Access Copyright's Proposed $24 per Provincial Government Employee Tariff

2012-01-10T18:48:00.006-05:00

As Ariel Katz was quick to note, the Copyright Board has issued its decision on the crown immunity issue that arose in Access Copyright's proposed tariff that would impose a tariff of $24 per FTE provincial government employee. Ariel's blog includes an interesting comment from Andrew Martin, presumably the same Andrew Martin who was the CEO of Access Copyright (then CanCopy) for many years.

The crown immunity issue was argued as a preliminary issue last fall. The decision released on January 5, 2012 provides only the following indication of what reasoning the Board may have in mind:

The Objectors’ claim for crown immunity is dismissed by reason that the Act binds the Crown by necessary implication

Reasons are to follow. We await those reasons with interest, as well as learning whether there will be an attempt at judicial review.

The submissions of the parties are available here, here, here, and here.

Canada #9 Beats Out Germnay, UK, Japan & USA (#18) in 2011 IPRI Property Rights Ranking

2012-01-07T13:22:00.003-05:00

The well known and highly influential US conservative think tank - Grover Norquist's Americans for Tax Reform - has a "project" called the "Property Rights Alliance". According to Declan McCullagh at CNET:

The Property Rights Alliance, a project of ATR, lists combating "piracy and counterfeiting of intellectual property" in its mission statement. Its annual property rights index scores nations on variables including how "effective" each is in eliminating "copyright piracy."

The 2011 Report of the Property Rights Alliance - the International Property Rights Index ("IPRI") - ranks Canada at #9 overall re protection of physical and intellectual property. Canada is ahead of the UK, Germany, Japan and the the USA (#18) amongst others. Here's the top 20:

SWEDEN 1
FINLAND 1
SINGAPORE 3
SWITZERLAND 4
NORWAY 4
NEW ZEALAND 4
LUXEMBOURG 4
DENMARK 8
NETHERLANDS 9
CANADA 9
AUSTRALIA 9
AUSTRIA 12
HONG KONG 13
GERMANY 13
UNITED KINGDOM 15
JAPAN 16
IRELAND 16
UNITED STATES 18
BELGIUM 18
FRANCE 20

As for Canada, the report says:

Canada’s IPRI remained the same after two
previous years of slight increases. There is little
to complain about however, as Canada remains
the highest ranked country in both its
region and the western hemisphere. (emphasis added)

This is very good news and Canada should be proud. There's also an interesting case study by Joseph Quesnel entitled "Creating Indigenous Property Rights: The Nisga’a Landholding Transition Act".

The full IPRI report is available here.

Trans-Pacific Partnership ("TPP") Agreement - Consultation Deadline of February 14, 2011

2012-01-05T14:44:00.003-05:00

World Copyright Terms (created by Balfour Smith of Duke University)

The Canadian government is asking for submissions on the proposed TPP agreement by February 14, 2012.

One of the identified items for consultation is:

Views and experiences with the protection of intellectual property rights.

According to Sean Flynn of American University's Washington College of law, preliminary analysis of "leaked" documents indicate that the USA will be seeking:

a life + 70 year copyright term,
to abandon the access to medicines flexibilities of the 2007 New Trade Deal and the U.S.-Peru Free Trade Agreement
to create a new international legal requirement to provide copyright owners an exclusive right to block parallel trade of copyrighted works.

See Sean Flynn's analysis here and here. If Sean is right, the USA will be seeking to impose a regime that goes far beyond Canada's NAFTA and WTO obligations and even way beyond still controversial IP and trade agreements not yet ratified, such as the 1996 WIPO treaties and ACTA.

This sounds like policy shopping on a grand scale.

The DFAIT document is available here.

Remember - the deadline for comments if February 14, 2012. You may also wish to to include with your submission a lovely Valentine.

Wikipedia

Digest of United States Practice in International Law 2010

2012-01-04T14:29:00.004-05:00

World Copyright Terms (created by Balfour Smith of Duke University)
(click on map to expand)

The Annual United States Digest of United States Practice in International Law 2010 is available here.

It covers everything from softwood to software. It's more than 900 pages long.

Canada gets mentioned about 70 times.

Search away....

HK

PS - the above map shows the success of the US bilateral strategy of promoting the life + 70 "Mickey Mouse" copyright term.

Public Domain Day 2012 - Welcome to Jung, Jelly Roll Morton, Joyce and Grandma Moses

2012-01-01T14:47:00.012-05:00

Beautiful World by Grandma Moses (1860-1961)

Today is the day that many works enter the public domain, according to all kinds of very complicated rules and despite the efforts of the likes of The Walt Disney Company and the Estate of Lucy Maud Montgomery to the the contrary. I continue to be pleased that Jack Granatstein, myself, and others were successful in spotting, trapping, and getting rid of the "Mouse in the House" that appeared to be the first stage of a Mickey Mouse Copyright Term Extension movement in Canada. Our 2003 pre-Facebook campaign led to the defeat of the harmful aspects of certain otherwise useful legislation in which the mouse was hiding that would have extended copyright in the unpublished works of LMM, and other important figures such as Prime Ministers Laurier, Borden, and Bennett, as well as Stephen Leacock and Grey Owl for up to 34 years.

The determination of when a work enters the public domain is relatively straightforward in Canada, at least in comparison with the USA. For the latter, see charts by:

Moreover, there is a case called Golan v. Holder under reserve in the US Supreme Court that will determine the validity of US legislation restoring copyright in certain classes of works that have already entered the public domain, including works by Stravinsky and H.G. Wells for example. We should know the outcome by June of this year.

Not only is the determination of when a work enters the public domain in each country very difficult in many cases. The increasing and increasingly dangerous trend towards extraterritorial assertion of copyright law makes it increasingly risky to make available online works that are in the public domain in the country where there the site is hosted but are still protected in other countries. Uncertainty and some heavy handed threats have impeded the efforts of some very useful websites, such as the IMSLP Petrucci Music Library that have sought to make countless important books and musical scores that in the public domain in Canada and most other countries apart from the USA and EU members as widely available as possible.

I continue to think that harmonization of the public domain term would, in principle, be a useful exercise for WIPO, were it not for the fact that this would almost certaintly involve eneomrous pressure to harmonize to the highest common denominator of life + 70 as found in the EU and USA. Indeed, the USA may have inflicted irreversible and irreparable harm on itself with with its unwise term extension, due to its Fifth Amendment constitutional provision that may make the taking back of such an extension effectively impossible, at least with respect to any works covered by the life plus 70 term under a law that was validly enacted.

While one hears that the Europeans may not go to the wall on life + 70 in the Canada - EU (CETA) trade talks, one must be wary of the Americans in the Trans-Pacific Partnership (TPP) agreement negotiations in which Canada has agreed to participate. Whether Canada's willingness to negotiate in the TPP forum with change the dynamic of the CETA talks could be interesting.

Anyway, here is the indomitable Wallace J. McClean's annual Public Domain Day liberation post. According to Mr. McLean, Canadians will now have full access to a trove of previously published works including by the following creators whom he has seen fit to highlight, according to his eclectic taste:

Canadian novelist Mazo de la Roche
British politician and Newfoundland Commissioner Sir John Hope Simpson
American author Ernest Hemingway
Swiss psychiatrist Carl Jung
Swedish diplomat and author Dag Hammarskjöld
Austrian physicist Erwin Schrödinger
American writer and cartoonist James Thurber
American artist Grandma Moses
American playwright Moss Hart
American artist Max Weber
Italian mathematician Beppo Levi
Serbian poet Branko Miljković
Nazi war criminal Kurt Meyer (published his self-serving memoir “Grenadiere” in 1957)

Other homages to PD day in the life + 70 regime can be found on the 1709 Blog here re James Joyce and here re Jelly Roll Morton. Canadians, of course, welcomed them into the public domain 20 years ago.

Happy PD day and Happy New Year.

A Clatch Of Copyright Cases At The Supreme Court of Canada

2011-12-05T21:58:00.001-05:00

Geneva

December 6, 2011

Intellectual Property Watch

By Howard Knopf

A “clatch” is another word for “brood”, which is a not inappropriate word in the present circumstances – considering that Canada’s highest court will hear five (yes, five!) cases on December 6 and 7, 2011 that all emanate from Canada’s Copyright Board. These cases are on appeal from the Federal Court of Appeal, arising in turn from “judicial review” of five recent decisions from the Copyright Board. Judicial review, in this context, is essentially the same thing as an “appeal”.

...

The whole article is available here without a pay wall at the esteemed Geneva-based IP-Watch website, to which I am pleased to occasionally contribute and to which readers around the world should subscribe because it is indispensable in terms of major policy developments, particularly at WIPO and in other major fora and important courts...

Fair Dealing Cases in the Supreme Court of Canada - December 6 and 7, 2011 - Links to Factums

2011-11-25T22:22:00.007-05:00

Here (in blue/grey) are the interveners’ factums (briefs) in the Supreme Court of Canada fair dealing cases, which will be heard with three other cases arising from the Copyright Board on December 6 and 7, 2011. These intervener factums are not available on the SCC website. The parties’ factums are available at the Court’s site via the green hyperlinks below.

SOCAN v. Bell et al (the “iTunes previews” case) SCC #33,800

Canadian Association of University Teachers

Computer & Communications Industry Association

Federation of Law Societies of Canada and Canadian Legal Information Institute

Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic

Province of Alberta et al v. Access Copyright(the K-12 “education” case) SCC #33,888

Association of Universities and Colleges of Canada and Association of Canadian Community Colleges

Canadian Association of University Teachers and Canadian Federation of Students

Canadian Authors Association, Canadian Freelance Union, Canadian Society of Children's Authors,Illustrators and Performers, League of Canadian Poets, Literary Translators' Association of Canada, Playwrights Guild of Canada

Canadian Publishers' Council, Association of Canadian Publishers, and Canadian Educational Resources Council

Centre for Innovation Law and Policy of the Faculty of Law University of Toronto

CMRRA-SODRAC Inc.

Professional Writers Association of Canada and Writers Union of Canada

Samuelson-GlushkoCanadian Internet Policy and Public Interest Clinic

(Disclosure: I am counsel for the Centre for Innovation Law and Policy of the Faculty of Law, University of Toronto)

Justice John D. Richard to Speak on Judges Speaking Out of Court in Canada

2011-11-22T21:16:00.003-05:00

Couchiching Ottawa Round Table

Judges Speaking Out of Court in Canada

With the HON. JOHN D. RICHARD, Chief Justice (Retired) of the Federal Court of Appeal
November 28, 2011
7:00–9:00 pm
Gowling Lafleur Henderson LLP
Board Room
2600–160 Elgin Street
Ottawa
While governments make laws, it is the responsibility and duty of the judges in our courts to interpret and apply those laws. Judges are given a unique degree of independence and security of tenure in Canadian society in order to be able to properly carry out their duties impartially and free of extraneous influence. It is a fundamental tenet of our judicial system that “Not only must Justice be done; it must also be seen to be done.”
In Canada, the accepted convention is that judges speak on matters of public policy only through their judgments and only to the extent necessary to render the necessary decision. They rarely speak or write “out of court” in a public forum, and when they do so, it is invariably in a measured manner and usually on issues such as the administration of justice that are of concern primarily to law students, the legal profession or to other judges. By contrast, English, and particularly American, judges are in some cases much more outspoken outside of the courtroom on a wide range of issues.
That said, judges in Canada are amongst the most well-informed and articulate participants in our system of governance. Would Canadian society as a whole, taking into account the justice system, benefit from more outspoken “out of court” discourse by the judiciary? Does the retirement of a judge make a difference in this discussion?
Couchiching Ottawa is honoured to launch its first informal evening for 2011–12 with the Honourable John D. Richard, who recently retired as Chief Justice of the Federal Court of Appeal. Justice Richard presided over this Court and its predecessor for the decade between 1999 and 2009. This was a momentous period in Canadian legal and political history and the establishment of the Federal Court of Appeal itself as a keystone institution in Canadian public law. Prior to his appointment to the bench in 1994, he had a long and very successful career as a lawyer, appearing in many and varied cases of great importance.
In the Couchiching tradition, our guests and participants are invited to speak openly and frankly, and to engage in non-partisan, provocative and free debate. Accordingly, this evening will be conducted off the record under the Chatham House Rule. Attendance is limited and we welcome your participation.

The Couchiching Institute is grateful to Earnscliffe Strategy Group and Gowlings for their sponsorship of the Ottawa Round Tables.

FEE

$35 + HST, $20 + HST for students.
Wine and hors d’œuvres will be served.

REGISTRATION

Space is limited, so book now! Prepayment required.
Register by calling 416-642-6374 , 866-647-6374 . Registration is limited and will be conducted on a first-come, first-served basis. For more information, you can also e-mail couch@couch.ca,

PREVIOUS ROUND TABLES

The Responsibility to Protect: The Road to Libya and Beyond, with Prof. Errol Mendes, University of Ottawa, and Fergus Watt, Federalist Movement of Canada, May 30, 2011 (originally planned with General Roméo Dallaire who was unable to attend because of illness)
Demonstrations and Civil Society: From Toronto to Tunisia to Egypt — And Beyond? with Nathalie Des Rosiers, February 28, 2011
“Yes, Minister” or “No, Minister”? with Dr. Alex Himelfarb and Dr. Munir Sheikh, November 1, 2010
Roundtable Summary of “The Future of Public Broadcasting in Canada,” March 30, 2009 (pdf)
Roundtable Summary of “Canada’s International Development Strategy
in a Conservative Era: Staying the Course or Charting a New Path?”,
November 20, 2008
Reasonable Accommodation in Canada, April 24, 2008, Gowlings Ottawa (pdf)

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Costco scores victory on "copyright misuse" in ongoing war with Omega

2011-11-16T11:21:00.003-05:00

Costco has won a ~~victory~~ notable battle in its long war with Omega over the parallel importation of Omega watches, which Costco sold at about a 40% discount.

A U.S. district court judge has ruled that Omega's use of a copyrighted stamped design on the back of the watch - one purpose of which Omega conceded was to control importation - constituted copyright misuse.

Here's the summary judgment ruling,

Canadian IP, trade and competition lawyers will recall that the Supreme Court of Canada opened the door to a similar conclusion someday in the Kraft v. Euro Excellence case, in which I acted for the Retail Council of Canada. Look at the reasons from Justice Bastarache and Justice Fish on misuse and trade control respectively.