The Canadian Bar Association Copyright Submission on Bill C-32 (now C-11) - Some Useful Links

(Mussorgsky/Stokowski/Disney - 1940)

There has been a lot of discussion in recent days about the Canadian Bar Association (CBA) Submission on Bill C-32, the Copyright Modernization Act from February, 2011. That bill is the same as Bill C-11, which is now heading into the homes stretch in Parliament. “Some of the top” copyright lawyers in Canada" have signed a letter to the CBA circulated by Claude Brunet and Casey Chisick, demanding that it “publicly withdraw” this document, launch an investigation, etc. The list of signatories (see below) is as interesting for who it does not include as it is for who it does.

The CBA, at all levels up to and including its President, have unequivocally continued to support and express confidence in the submission, the process that led to it, and those involved with producing it. Michael Geist’s name has been mentioned very frequently in the recent discussions and mine a couple of times. For the convenience of those interested, below are links to the most useful recent documents in this saga, beginning with the CBA Submission itself.  

With all of the attention the CBA copyright policy submission has been getting, readers may wish to read it carefully and decide for themselves whether it contains useful points to include in last minute submissions to Members of Parliament and Ministers as the Clause by Clause process on Bill C-11 (identical to Bill C-32) begins. Readers may even wish to bring it to the attention once again of Members of Parliament and Ministers, if they believe this would be helpful.

So – without any further comment:

• CBA Submission on Bill C-32, Copyright Modernization Act February, 2011
• Letter from Claude Brunet, Casey Chisick, Dan Glover, Barry Sookman, et al to CBA February 21, 2012
• Letter of CBA President Trinda Ernst, Q.C. to Claude Brunet and Casey Chisick March 1, 2012
• National Post Article by Drew Hasselback March 7, 2012
• Comment by Terence Corcoran, Editor of Financial Post March8, 2012
• Michael Geist Counterpoint “Music lobby smears CBA paper”March 8, 2012
• Letter from CBA President Trinda Ernst, Q.C., March 9, 2012
• Message from Andrew Bernstein March 9, 2012
• Update by Drew Hasselback, Financial Post, March 9, 2011

Here, once again, is a handy list of the responsible Ministers (the Minister of Industry, Christian Paradis, and the Minister of Canadian Heritage, James Moore) and the C-11 Committee members and Clerk of the Committee, at email addresses provided below:     

Christian.paradis@parl.gc.ca 

James.moore@parl.gc.ca 

moore.j@parl.gc.ca 

Glenn.thibeault@parl.gc.ca   

Charlie.angus@parl.gc.ca 

Scott.armstrong@parl.gc.ca 

Tyrone.Benskin@parl.gc.ca 

Peter.braid@parl.gc.ca 

Paul.calandra@parl.gc.ca 

Andrew.Cash@parl.gc.ca 

Dean.delmastro@parl.gc.ca 

Mike.lake@parl.gc.ca 

Phil.mccoleman@parl.gc.ca 

Rob.moore@parl.gc.ca 

Pierre.Nantel@parl.gc.ca 

Geoff.regan@parl.gc.ca 

cc11@parl.gc.ca 

HPK


PS - if you wish to make your views known concerning any of the above at this time to those in Parliament who can do something about fair dealing, email the following. You should be able to cut and paste this list directly into most email clients:

Christian.paradis@parl.gc.ca, James.moore@parl.gc.ca, moore.j@parl.gc.ca, Glenn.thibeault@parl.gc.ca, Charlie.angus@parl.gc.ca, Scott.armstrong@parl.gc.ca, Tyrone.Benskin@parl.gc.ca, Peter.braid@parl.gc.ca, Paul.calandra@parl.gc.ca, Andrew.Cash@parl.gc.ca, Dean.delmastro@parl.gc.ca, Mike.lake@parl.gc.ca, Phil.mccoleman@parl.gc.ca, Rob.moore@parl.gc.ca, Pierre.Nantel@parl.gc.ca, Geoff.regan@parl.gc.ca, cc11@parl.gc.ca

To Margaret Atwood: Copyright and Cars Cannot Conflate

(Vanwaffle)

Margaret Atwood, C.C.,  is rightly renowned as a Canadian doyenne of the arts, crusader for CanLit, and fiction writer. However, her views on copyright law have been consistently controversial, often just wrong and, dare I say,  even fictional. She is back in the news again for her creative, eloquent, passionate but inaccurate and overwrought comments at the C-32 Committee hearing on March 8, 2011.

She reportedly said that her definition of fair dealing is:

"Number one, it is fair; and number two it means that some form of dealing is taking place between two sides who reach an agreement -- that's what fair dealing means to the ordinary person."

That may well be her definition, but there is no basis in any statute or any court case anywhere that would back it up. On the contrary, fair dealing is inherently a user’s right to engage in certain activity without reaching an agreement or even “dealing” at all with the author or a collective. “Dealing” is used in the law in with respect to the work itself in the sense of “using” it for an allowed purpose in a fair way - not in the sense of negotiating with an author or her representative for the right to do so. When the law allows for "fair dealing", there is no need for an “agreement”.

Also, according to news reports:

Atwood testified that she feared the fair dealing reforms proposed under Bill C-32 harmed authors by opening a loophole that would let educators copy works without paying to do so.

"They are being negatively affected by this because property is being taken away without consent and without compensation," she told MPs via video conference from Dubai.

"If someone took something from your house without compensation, you would call it theft."

Mr. Dean Del Mastro, a Conservative committee member, was on the mark when he referred to some of Ms. Atwood’s exaggerated accusations and assertions as “outrageous”.  The exchange took place here at about the 11:46 mark of the hearing.

Ms. Atwood still doesn’t "get" certain basic facts about law and economics. Stealing cars or diamond rings gives the thief additional tangible possessions and deprives the owner of these possessions. Indeed, society cannot function if such “theft” of tangible objects is tolerated.

On the other hand, copying some of Ms. Atwood’s work in the course of fair dealing deprives her of nothing and may even create additional sales if readers like what they read. This is the elementary distinction between “rivalrous” and “non-rivalrous” property rights and is at the heart of fair dealing. 

When a thief steals a car or a diamond ring or a bill of exchange, such an act is to the obvious detriment of the rightful owner and, indeed, to society itself. However, the whole world can possess an idea or a fairly copied exceprt and even in some cases the whole of a work without any loss to anyone and with a gain to society. The creator can be very much enriched as a result of such widespread access. Fair dealing is not stealing. It is not theft, or expropriation, or confiscation. It is a vital part of the “quid” for the “quo” of why copyright exists.

In fact, Thomas Jefferson, the Thomas Jefferson, hardly a pirate at heart, said this best in his celebrated letter to Isaac McPherson in 1813:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.

Exactly why Ms. Atwood does not want scholars, teachers, and students to have large and liberal rights to engage in fair dealing with respect to her works is unclear. She and her colleagues  - and their current and potential readership - can only benefit if the purpose is reasonable and the dealing is fair. The very generous "fair use" doctrine in the USA, with its explicit inclusion of the fair use of multiple copies for class room teaching use, has hardly hurt the cause of American literature or publishing. Accordingly, Ms. Atwood's campaign against the explicit inclusion of "education" as a legitimate example of fair dealing - subject of course to hurdles of the the Supreme Court's six part fairness analysis - is incomprehensible.

Ms. Atwood’s copyright canards, such as likening exceptions to car theft, go back to the first Bill C-32 in 1996.  At those committee hearings, she opined that:

Exceptions to copyright are an expropriation of our property against our will. If copyrights were cars, this would be car theft..

Here’s a blog I did in 2006. For better or worse, some things never change. Fortunately, the Supreme Court of Canada and countless others recognize that copyright and cars cannot conflate.


HK

Francis Gurry (DG - WIPO) on "Future Directions in Copyright Law"

(WIPO)

Here is an  absolute "must read" speech from today delivered down under on "Future Directions in Copyright Law" by Francis Gurry, Director General of  WIPO (above)

It has some rather trenchant comments for everyone from pirates to Presidents. Here are some examples of what he sees as necessary:

The fourth element in a comprehensive and coherent design is institutional collaboration. This is a very delicate area, where any action may have a disproportionate influence on the battle for the hearts and minds of the public on the question of appropriate copyright policy. It is also a somewhat incoherent area, with different national approaches, some emphasizing action against offending consumers and others targeting intermediaries; some plurilateral approaches in the Anti-Counterfeiting Trade Agreement (ACTA); and some practical, industry actions or codes of self-regulation.  

I believe that we need greater coherence if we are to make progress in this area. We need to define sensibly what objectives we share, starting in a modest manner. But we are very limited by the unwillingness of some countries to entertain any international discussion or action in this area.

The final element of a comprehensive and coherent design is better business models. This is undoubtedly happening now. But the story is not over and, for the future, we should constantly remind ourselves that the history of the confrontation of our classical copyright world with the digital environment has been more a sorry tale of Luddite resistance than an example of intelligent engagement.
(emphasis added)

He also deals with other important general principles such as the need for neutrality to technology and to the business models developed in response to technology and the need for comprehensiveness and coherence in the policy response.

Canadian policy makers at all levels who are involved with Bill C-32 would do well to read this speech and see how Canada measures up to Mr. Gurry's lucid analysis of what is desirable in the future of copyright law.

HK

Lady Gaga Goes Gooey & QED re Canada's Proposed UGC Exception in Bill C-32

Wherein Lady Gaga goes all gooey and confirms the wisdom of C-32's UGC exception and the notion that many types of unlicensed uses can seriously benefit copyright owners.

Today many lobbyists call this kind of thing "piracy". It used to be called "free advertising."

Here's the CBC story.

Here's part of it:

"Can't stop crying watching this. This is why I make music. She is the future," Gaga's posting stated.

Lady Gaga posted on her Twitter page that she 'can't stop crying' watching the video of Maria Aragon. (Twitter.com)She also included the link to Maria's video which had been viewed about 3,100 times prior to Gaga's tweet. By 8 p.m. CT Thursday, the number of viewers had skyrocketed to about 500,000.

"Gaga sent me here," one person commented, while the majority of those who left posted remarks lauding Maria's voice as "amazing."

The number of viewings could continue to soar, as Lady Gaga has 8.2 million Twitter followers.

HK

Déjà vu All Over Again on Copyright and Canada/US Trade? An Election Issue?

(Government of Canada)

Linking Canadian copyright reform to un-thickening the Canada/US border and getting the USA to honour its NAFTA commitments is coming back again, rather like a bad penny.  Colin Robertson, a former Canadian diplomat, who just over a year ago  appeared rather sympathetic to the American point of view and shielded one of its best lobbyists from close questioning on it, is now suggesting in the current Embassy Magazine that with respect to the current Canada/USA Harper/Obama level talks that:

But there exists several hurdles for Mr. Obama and Mr. Harper. A big element is that the Americans are waiting for Canada to push through new copyright legislation, something the country is getting a reputation for abroad as being lax on, said Mr. Robertson.

It’s not clear why Mr. Robertson would repeat the US lobbyists’ and Government’s  mantra about “copyright legislation, something the country is getting a reputation for abroad as being lax on” without at least somewhat defending Canada. Presumably Mr. Robertson would not wish to be inconsistent with his reluctance to let Ms. Greenwood be questioned about this fallacy in December of 2009.

I have pointed out any number of times that Canada’s copyright legislation is already stronger than US law in at least 21 ways that generate substantial cash flow to the USA. 

Hopefully, Canada will see through this irrational and asymmetrical linkage effort once again. This is truly “Déjà vu All Over Again.” Given other recent developments and the rhetoric, such as that of Colin Robertson now building on the border issue, let us not be surprised if copyright does become an actual election issue.

As to the “Déjà vu All Over Again” aspect, on December 8, 2009 I wrote about the absurd suggestion by big time American lobbyists Scotty Greenwood that all that Canada needs to do to deal with the “Buy American” problem at the time and other trade issues (in which the USA was not honouring its obligations) was to capitulate the USA on its copyright demands. 

I said then:

There was a very interesting international trade event on The Hill yesterday - very capably and even-handedly hosted by the Hon. Scott Brison, PC., M.P. Lots of MPs, Senators and trade policy types. Some very senior level speakers. Mr. Ignatieff was there listening and said a few words. The Right Honourable Joe Clark, former Prime Minister, was the main keynote lunch speaker and spoke eloquently about Canada-Africa trade, despite inexcusable bungling by the Hill technical people of his slide presentation. He was witty and wise.

Anyway, the highlight for me was the astonishing statement that was made by Maryscott (“Scotty”) Greenwood, who is an energetic figure in on the Canada/US relations front. Among other things, she is Executive Director of the Canadian-American Business Council (“CAB”).

She is also a sometimes controversial lobbyist, who worked for and now with Gordon Giffin, a former US Ambassador to Canada under the Clinton administration from 1997 to 2001.

The CABC is big on such issues as the “Buy American” controversy that is hurting so many Canadian SMEs, such as Hayward Gordon (a 57 year old pump technology company), whose President, John Hayward, spoke so eloquently yesterday.

Greenwood’s remarks unfolded like a slick Hollywood movie leading to an unstoppable, inevitable and unbelievable conclusion.

After a lot of very intelligent talk by her and others about the “Buy American” problem and the long history of Canada/US relations, she said that the solution is very simple.

You could feel the punch line coming when she was concluding her remarks just before questions were taken by indicating that she “loves linkages” (trade policy jargon for the linking of two often unrelated issues, which can result in the giving away of one sector’s interests to benefit another's).

Her conclusion was then a predictable climax, in which she actually came out and said that Canada could solve most if not all of its current trade problems with the USA - and particularly the “Buy American” issue - by simply “fixing copyright.” These problems would then be solved “tomorrow.”

Yep - the Canada/US file is now all about copyright, according to her. All we have to do is do what the US Government and the American lobbyists say. It doesn't matter how wrong the USA may be about “Buy American” and countless other trade irritations. Or even if the USA is the most flagrant scofflaw at the WTO in international copyright law.

Never mind that Canadian copyright law is already stronger and better in more than a dozen ways than US copyright law - some of which provide a lot of money to American interests.

Never mind all of this, we should just do as they say.

So I asked a question - admittedly with something of a preface to set the context - about why Canada would even discuss copyright with the USA when:

• the father of the American father of the DMCA, which is the model we are supposed to follow, (Bruce Lehman) has disowned it;

• there was no evidence of serious counterfeiting and piracy in Canada and no basis for the 301 listing, other than that of a few lobbyists’ recycled back-of-the envelope musings;

• the most obvious source of counterfeit and pirated goods are the street corners of midtown Manhattan; and,

• above all why Canada would be discussing a secret treaty called ACTA that would make the border even more sticky and inefficient than it already is.

The Moderator, Colin Robertson is a DFAIT diplomat who is on loan to the Norman Paterson School of International Affairs, which has generally been very supportive of Canadian foreign policy and big business interests.

Mr. Robertson was the first to mention Canada's place on the US piracy list yesterday. He clearly didn't like my question, or the context setting remarks. Ms. Greenwood - to her credit - answered it, however briefly and unsatisfactorily. I didn’t get a follow up. Her answer was that Canada should fix its copyright law in the manner suggested by the USA because this would be better for Canada or words to that effect. Isn't it touching that American lobbyists are so concerned for the best interests of Canada?

Anyway, some influential folks were quite interested in my question and it clearly took many by surprise who were unaware of ACTA, its trade implications, the secrecy attached to it, and the general sensitivity of the copyright account.

Yesterday was clearly another example of US government and entertainment industry lobbying and policy laundering at its finest. Let us hope that some, at least, saw through it.

HK

Canadian Bar Association ("CBA") Brief on Bill C-32 Now Available

The Canadian Bar Association ("CBA") National Intellectual Property & National Privacy and Access Law Sections Canadian Bar Association has released its brief on Bill C-32, available here.

Its format seeks to balance the views of owners/creators on the one hand and users on the other, and to indicate where there is some common ground. It uses charts to set forth a summary of the competing views on the key issues. There is also some extensive discussion.

It begins as follows and is well worth reading:

Copyright is a controversial subject, which engages the interests of a wide cross-section of Canadians. The copyright bar, similarly, holds a multiplicity of perspectives on copyright. Because of the diversity of perspectives, the CBA Intellectual Property Section and Privacy and Access Law Section (CBA Sections) have chosen, in their submission, to summarize the legal contours of the various policy perspectives on copyright, to assist Parliamentarians in their study of Bill C-32. The goal of any new copyright legislation must be to strike the appropriate balance in the rights of all parties, while recognizing the value of the intellectual property in copyright. 

In reviewing Bill C-32, the CBA Sections assembled a working group of CBA members with expertise in copyright law and privacy law to develop the submission (the Working Group). The Working Group was often unable to agree upon an assessment of specific provisions from a policy perspective. Therefore, in lieu of specific recommendations, it adopted a format wherein it identified potential issues with each provision, noted the diversity of perspectives with respect to these issues, and developed a chart summarizing relevant commentary from creators/owners’ and users’ perspectives.

The Working Group produced commentary under the headings: Technological Protection Measures, Exceptions to Copyright Infringement, ISP and Search Engine Liability, Making Available and Distribution Rights, and Statutory Damages, and ends each section with the aforementioned chart.

HK

iPod "Tax": Ministers Reiterate That No Means No

Ministers Clement and Moore said today:

“We are here to confirm that the Harper Government will not bring in an iPod tax as part of its copyright legislation. The iPod Tax has been proposed and supported by all opposition parties.

“We simply cannot support the opposition’s massive new iPod Tax on Canadian music lovers. The iPod Tax would add up to $75 to the price of every mp3 player and smart phone on the market. It would hurt the economy, punish consumers and families, and send the wrong message during this fragile economic recovery."

 Here's the press release.

One wonders how many times the proponents of an iPod tax have to be told by the Courts (answer - twice - see here and here)  and Ministers (answer - several times). (disclosure - I was involved in these Court cases and argued against the levy/"tax")

Hopefully, the CPCC will "get it" now and move on.

This is no loss for musicians. whose maximum average payout as supposed beneficiaries of the Canadian private copying levy to date has been about $160 a year - and probably much less in most cases,

It is, however, a big loss for the lobbyists, lawyers, consultants, and others working directly for or with with the  CPCC  - which had expenses of over $3.5 million in 2009.

BTW, the Ministers figure of $75 is absolutely accurate, despite revisionist statements to the contrary. The last official proposal by CPCC  for an iPod "tax" for 2008-2009 at the Copyright Board was for $75 for a 30GB or more iPod.

Collectives can be useful in certain cases to solve failures in the market place and to reduce transaction costs, etc. However, there is nothing in the Charter of Rights, or even the Copyright Act, that guarantees a permanent existence to any particular collective.

HK

Statutory Damages - Canada, USA v. Almost Everywhere Else in the World

Michael Geist has a good post today on statutory minimum damages and how Canada is so atypical in this respect.

I did a post in 2008 about Israel's clever statutory damages regime, which features a max of about US $27,000 and no minimum. This apparently also applies to commercial infringers.

Israel - which depends more on the USA than any other country in the world - indeed for its very existence - has learned that it will get serious respect and support from the USA only by having a mind of its own and not simply imitating America and doing whatever America asks without serious questioning.

Or, is Canada's rush toward American copyright values, part of the "inferiority complex" that American diplomats suggest we have?

HK

Don't Touch My Digital Junk: TPMs & Bill C-32 - Geist v. Ficsor

The great debate between Michael Geist and Mihály Ficsor over Bill C-32'a treatment of TPM’s and when and how they can be legally circumvented continues and, indeed, escalates.

The big issues include:

• Must C-32 address BOTH "access" and "copy" controls?
• Can there be a general exception for circumventing for non-infringing purposes, e.g. fair dealing?
• Should devices, software, or services that have substantial legitimate purposes be caught in the anti-circumvention net?

Prof. David Vaver points to links on both sides and suggests, quite correctly, that these materials are “mandatory reading” for all concerned. It’s too bad that David himself has not expressed his view on this debate, or other aspects of the Bill C-32 as far as I know. Hopefully, his decade at Oxford has not diminished his interest in Canadian copyright law and he will share his valuable insights before it too late for the public debate.

I do have some brief comments.

Mihály is a good friend and we have invited each other to important copyright conferences back in the 1990's. He is a major figure in the world of international copyright law and played a very significant role while at WIPO in the development of the 1996 WIPO treaties. I respect his decision since leaving WIPO to align himself with the IIPA and the key lawyers and law firms behind it. See here, here and here He is currently associated with Greenberg, Traurig, a powerful Washington law firm and the IP group led by Eric Smith, who is one of the key figures behind the IIPA.

The IIPA is the powerful Washington lobbying organization that is highly influential in the content of the notorious annual USTR “Special 301" report - which provides predictable and perennial negative commentary about Canada that our own Government says "lacks reliable and objective analysis". It includes the RIAA, MPAA, NMPA, BSA and ESA. But that’s another story and I have no reason to think that Mihály is involved in this aspect of IIPA’s work. He is not currently listed as one of the IIPA’s personnel.

To his credit, Mihály has been consistent on the issue of the need to provide both access and copy control protection for TPMs since his 2002 book. Indeed, there are aspects of his 2002 book I quite like but which may not suit the views the Canadian appendages of some of the IIPA’s major client/members, such as his vigorous insistence that remuneration from private copying must be dealt with on a national treatment basis both under the WCT and WPPT - i.e. both for authors and sound recording producers/performers. If Mihály is right on this point - and many in the Canadian government would agree with him - this is a real deal breaker for any form of “iPod tax”, since the "tax" would be almost exactly doubled and almost all of the hundreds of millions of dollars that would be collected - after paying for CPCC managers, consultants and lawyers, etc. - would leave Canada with almost nothing coming back in return. This would clearly not be good public policy. It would also be dreadful politics - a huge "tax on technology" with almost all of the proceeds leaving Canada. Subsidies, if absolutely need, would be far more efficient and far cheaper and could be kept entirely in Canada - though lawyers, lobbyists and collective managers wouldn't be happy for obvious reasons.

Michael Geist is also a good friend. He needs no introduction to Canadian or most foreign readers.

Anyway, back to TPMs.

Here is what the WIPO Copyright Treaty (“WCT”) says on TPMs, with similar language in the WPPT (producers and phonograms treaty):

Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

(Emphasis added)

As for his position on TPM’s, Mihály goes on at great length about the meaning of “adequate” and “effective” and “adequate and effective”. These are words - especially the word “effective” - that have little if any intrinsic or precise meaning in international IP law. In particular, the word "effective" refers to “procedure” (i.e. "remedies") - not substance. Canada will provide more than “adequate legal protection” and very “effective legal remedies” if we take an approach of permitting exceptions for non-infringing activity and provide only for copy control and not Orwellian and para-copyright “access control”. There is nothing in the treaties that requires protection of devices that are capable of substantial non-infringing legitimate uses.

The reason I say this is that I was asked to research the meaning of “adequate” and “effective” and “adequate and effective” in the context of the US Grokster case in the US Supreme Court. I co-authored the attached brief for a major amicus curiae, which showed, inter alia, that the word “effective” is used in TRIPs and otherwise to refer simply to procedural and not substantive matters.

Treaties should normally stand on their own without minute analysis and recourse to “preparatory work”, just as national laws, at the least in the case of Canada, will not normally require recourse to domestic legislative history, much less to treaties, in order to be interpreted by national courts. If the Canadian law is clear, it will be assumed to be consistent with the treaty that required its implementation, and that treaty will normally be interpreted, if the court even looks at it, at face value.

It's true that one can have recourse to the preparatory work that goes into treaties under certain circumstances set out in the Vienna Convention on the Law of Treaties:

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

It's not clear that such recourse is needed in this instance, but if it were, it would probably help Michael more than Mihály. For example, the early versions of the treaty language were replete with references to "devices" of which "the primary purpose or primary effect of which is to circumvent any process, treatment, mechanism or system that prevents or inhibits any of the acts covered by the rights under this Treaty." See here. Earlier versions of Article 13 of the WCT, which eventually became Article 11, contain language prohibiting devices that clearly isn't in the final text, incdicating the rejection of such an approach. Both Michael and Mihály rely heavily on the Vienna Convention to make their cases. Can they both be right?

What seems clear is that, for reasons that are not apparent, the Government is using language in Bill C-32 similar to that which was specifically rejected in the WIPO treaty making process - i.e. re "devices".

While David Vaver may be right that the wording of the treaties is hardly “pellucid” on this question, it is sufficiently lucid to have at least a clear base line meaning. The whole point is that Canada need not implement beyond that base line, unless it so chooses. And it would seem axiomatic that such meaning must be consistent with the normal canons of what constitutes “copyright law”. Otherwise, Canada and presumably most other countries had no mandate to sign such the WIPO treaties in the first place. Moreover, countries such as Canada with constitutions that specifically refer to “copyright”, may face constitutional challenges if they attempt to implement provisions that go beyond any reasonable conception of “copyright” law. For example, it’s one thing to prevent “copying” of a locked DVD in order to deter commercial piracy. It’s quite another thing to prevent “access” to viewing such a DVD simply because it was sold in India, sent here as a gift, but not region coded for Canada. Indeed, Heather Mallick makes this very point here in an excellent Toronto Star article.

Would we tolerate a law that prevents even the very “reading” of foreign printed books? Or the very “viewing” of foreign films? Would anyone say that this is law in relation to copyright? No - because it has nothing to do with “copying” and everything to do with restraint of trade, monopolization and perhaps even being an "an instrument of trade control not contemplated by the Copyright Act" in the words of Justice Fish of Canada’s Supreme Court in the Kraft decision.

I am not impressed by pointing to other countries such as Australia that have implemented these treaties in a manner more less dictated by the U.S.A. The Australian decision to toss out an earlier version of WIPO implementation that featured only "copy control" and to embrace a version dictated by American trade negotiators was controversial and the government of the day paid the ultimate price for this and other examples of following American direction contrary to Australian interests. There are many excellent aspects of US copyright law - but the TPM measures of the DMCA are not among them. For reasons that are unclear, Canada’s proposals as they now stand are even more restrictive and harmful to consumers and even to creators themselves. Again, see Heather Mallick, who is hardly alone in being both. At any rate, Michael Geist's analysis points to several countries, including Japan, Switzerland, and several EU members that have minds of their own and availed themselves of available flexibilities under the 1996 WIPO treaties.

All in all, an approach such as that advocated in the Liberal Government's Bill C-60 would seem to be not only wise but perfectly safe in terms of international trade law, not that there is any foreseeable risk or indeed any mechanism for a trade-challenge on this issue as international law currently stands. While I am in no way advocating the adoption of a Canadian law in contravention of the WIPO treaties, it should be noted that they curiously contain no dispute resolution mechanism. This is ironic, since the US efforts to undermine IP multilateralism make any revision of the WTO TRIPs agreement, which could conceivably bring the 1996 WIPO treaties into a dispute resolution arena, very unlikely in the foreseeable future. It is further ironic because the USA has deliberately shirked its obligations respecting moral rights under Berne Convention by managing to get them exempted from dispute resolution under TRIPs.

I am assuming that Prof. Geist’s interest in this issue is purely academic and independent and not funded by any commercial interest. His recent book chapter did get funding from the usual academic sources, which have no commercial strings attached.

Mihály’s "interest in the Canadian experience" and his recent lengthy writings about it, which are frequently relied upon by Canadian lobbyist Barry Sookman and his junior associate, Mr. James Gannon, are also said by Mr. Gannon to be "purely academic".

HK

Bill C-32 Brief from the Canadian Federation for the Humanities and Social Sciences

Here's a thoughtful and important brief on Bill C-32 from the Canadian Federation for the Humanities and Social Sciences, which represents more than 50,000 researchers in 72 scholarly associations, 75 universities and colleges, and 6 affiliates, the Canadian Federation for the Humanities and Social Sciences is the national voice for the university research and learning community in these disciplines.

Here's the Executive Summary:

Bill C-32, the most recent legislation proposed to amend the Copyright Act, sets out several changes that would achieve a more fair and balanced approach to copyright. Our community commends several proposed amendments in Bill C-32, including the expansion of the definition of fair dealing to include parody and satire, and the amendment stating that an individual does not infringe copyright when using existing copyright-protected material in the creation of new work (provided that certain conditions are satisfied).

At the same time, we believe there are some areas of the Bill that would greatly benefit from minor adjustments. The following document contains recommendations that we believe will strengthen Canadian copyright law. In particular, we recommend that two general changes should be adopted: first, that the phrase “such as” or “including, but not limited to” be included in the list of fair dealing exceptions; and second, that with regards to technological protection measures (TPMs), it is only an offence to circumvent a TPM for infringing purposes.

In addition to these general changes, the Federation also recommends the following changes to Bill C-32:

- Libraries, archives and museums should be allowed to retain intermediate copies for the purpose of maintenance;

- Libraries, archives and museums should be allowed to copy items licensed for individual use for the purpose of preservation;

- Constraints on interlibrary loans should be removed;

- Impairment of a TPM should be allowed in adapting works in any format or medium for persons with perceptual disabilities;

- The requirement to destroy course materials 30 days after students receive their final course evaluations should be removed;

- The requirements for control and monitoring of digital teaching materials should be struck;

- Such phrases as ‘has a reprographic reproduction licence’ should be expanded to ‘has an agreement with the relevant rights holder(s) or has a digital reproduction licence’;

- Private educational institutions and their associated libraries, archives and museums should be included within the definitions of “educational institution” and “library, archive or museum”;

- Bill C-32 should explicitly specify that private study legitimately involves ‘performing’ or otherwise displaying or using copies in the presence of others;

- A general research exception to Bill C-32’s anti-circumvention provisions should be included with regards to TPMs;

- Anti-circumvention provisions should be accompanied by stipulations concerning the feasibility of circumvention options and clear visibility of notices regarding TPMs; and

- Crown copyright should be abolished.

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CMEC Supreme Court of Canada leave to appeal application

CMEC has now filed an application for leave to appeal to the Supreme Court of Canada, available here. It has rightly pointed out the inconsistency between the Federal Court of Appeal's approach in the "previews" case and this K-12 case.

The "previews" decision from the FCA came out shortly before the hearing by the FCA of the K-12 case. It focused on on the perspective of the user (i.e. consumer). The K-12 decision, however, focuses not the the user (i.e. student) but the teacher. As I have suggested several times, these two decisions would make a good pair for the SCC to deal with.

My client, CAUT, was an intervener in the FCA on the K-12 case and we urged the FCA to be consistent with the earlier "previews" decision. The resulting decision, with respect, was not.

Hopefully, the SCC will hear both cases and potentially render complementary judgments, as they sometimes do in these types of situations. There are appears to be a real need for guidance on the application of the CCH case, since certain collectives are strongly resisting its plain conclusions, as (with respect) did the Copyright Board in the K-12 decision.

CMEC makes a good point in its material. If there can be fair dealing in the profitable business of law, and the profitable business of iTunes type online music delivery, why is it ipso facto unfair for a teacher to provide copies, even of excerpts of textbooks, to students in the very non-commercial field of education?

No doubt, certain collectives and trade associations will press forward with their lobbying efforts to push back on CCH in the course of the C-32 debate.

HK

What does "educational" mean?

Many are rather nervous about the implications of including the word "education" in the proposed revision of the fair dealing provisions of Canada's Copyright Act. The big question, of course, is what does "education" mean?

The Federal Court has just rendered an intriguing decision that holds that a thesaurus is indeed an "educational text book" for purposes of Corrections Canada regulations. The fact that Roget's Thesaurus is not "required reading" for an inmate's National Sex Offender Maintenance Program or that it is available in the prison library does not take it out of the realm of being an "educational text book."

Corrections Canada had denied the inmate the right to buy the book because it ruled that the book would have put his allowable personal property limit over $1,500 - and was not considered to be exempt as an "educational text book."

Justice Sean Harrington's decision is delightful to read - quoting both Humpty Dumpty and Justice Scalia. And it is actually important to read this decision because it could be the the harbinger of what is to come in terms of debate about the "educational exception" and litigation should it be enacted without further clarification.

Interestingly, the Copyright Board ruled earlier in this year that providing copies of material that is prescribed or required reading cannot not be considered as fair dealing in the context of Access Copyright’s K-12 tariff. This was upheld by the Federal Court of Appeal. We will know by the end of the month whether CMEC will seek leave to appeal this decision to the Supreme Court of Canada. In my opinion, it is essential that leave be sought in this instance and that there is a good chance that leave would be granted in this case, as I have said earlier. (I acted for the intervener CAUT in this case the judicial review).

BTW, congratulations to inmate Ken Mackay who represented himself and prevailed against two Department of Justice Lawyers. He was even awarded $200 in costs - which should help him to build up his library as he serves his life sentence.

HK