Submissions Posted on Canada's Copyright Board - the Consultation Process

http://lotta56sparks.ca/56-sparks-canadas-most-famous-address/

The papers submitted re consultations re the Copyright Board have just been published here.

There’s lots to say. But I would first note that Music Canada – the leading lobby group for the Canadian music industry – has highlighted the mandatory tariff issue and mentioned the York University case by name, along with “the K-12 and post-secondary markets”:

Music Canada also notes a concerning development whereby users are taking the position that they have the right to elect whether they want to be bound by certified tariffs set by the Board, even when they make uses of works covered by tariffs.17 This has the potential to undermine participation in the tariff process and makes enforcement of tariffs more difficult. Music Canada does not agree that users have the right to election to opt out of approved tariffs (or interim or continuation tariffs) certified under the section 67 or 70.1 tariff process. However, clarity in this regard would usefully put an end to this process which undermines the Board’s legitimacy and process.

See page 13 of the Music Canada submission along with the footnote on that page.

This underscores the importance of Prof. Katz’s comments in his recent blog about the York University decision, which should be read again  by all those contemplating an intervention in the appeal. 

My own submission about the Board, which is NOT 233 pages long but rather only a modest 36 pages in length is here. Many of the links in it aren’t working and got lost on their way to the Government website. I’ll try to post a version with working links when I get a chance.

HPK

How to Search Canada's Copyright Consultation Database

The Canadian Coalition for Electronic Rights has done what the Government of Canada and Nick Nanos have, for whatever reason, not done.

It has provided us with a search engine for the submissions that really works!

And it works better and easier than Google's advanced search.

And even more features are on the way.

Now all we need are the missing hundreds (maybe thousands?) of submissions.

Bravo, CCER!

HK

Six Ways to Simplify Canadian Copyright Revision and WIPO Ratification

Here is the gist of my presentation yesterday at the September 1, 2009 Peterborough Round Table event hosted by Dean Del Mastro, M.P. I will shortly post a comment about this very positive event.
*******************

September 1, 2009
Howard Knopf
Roundtable Presentation Peterborough, Ontario
(check against delivery)

I am Howard Knopf. I've been a copyright lawyer for almost 30 years. I've been active in Government, in academia, at WIPO, and involved in some of the most interesting and important recent copyright cases at all levels, including in the Supreme Courts of both Canada and the USA. Although I am the Chairman of the CBA Copyright Policy Committee, I am not here today in that capacity or on behalf of any of my clients, which include both owners and users of copyright and who range from the very largest of corporations to the most modest of individuals. I'm here today only because I care about copyright law and I care about Canada.

In order to succeed in this revision effort, we need above all to simplify. Here are a half dozen specific positive things we can do:

1. The fair dealing provisions should be simplified by making them clearly an inclusive and illustrative list and not exhaustive. This can be done very simply by including words such as "such as" and words such as "teaching (including multiple copies for classroom use)" as we see in the US law. We also need an exception for "satire and parody", which our courts, unlike the US Supreme Court, have denied us. This simplified approach would also eliminate the need for the pages upon pages of complex, unnecessary, and even harmful particular exceptions that certain parts of the educational community believe would actually be helpful - despite the much more helpful approach of the Supreme Court of Canada in the landmark CCH case in 2004. Such an approach would also take care of most of the concerns of museums, archives and libraries.

2. The levy provisions in the current law should be simplified by their elimination. They are an obsolete relic from the analog era and a continental European socialistic collective approach that has been rejected in the USA, UK and Australia. By keeping the levies, and worse still by adding a so-called “iPod tax", we will greatly hinder WIPO ratification, because the national treatment principle would require that Canada's levy liability will literally be doubled at a possible cost of hundreds of millions a year. The levy scheme is wholly contained in Part VIII of the Copyright Act. Snip and it's gone. It's really that simple. And the door will then be open for WIPO ratification.

3. Remedies should be simplified so that the punishment fits the crime. Statutory minimum damages should be simply eliminated other than in circumstances where there is clearly provable commercial scale and "for profit" activity involved. Canada is not a place where it should even be theoretically possible to have such an outcome as the two million dollar judgment against a single mother for downloading 24 songs, as we saw a few weeks ago in Minnesota. The Canadian recording industry failed in a similar effort a few years ago. Now it wants the law changed to make it easier for them the next time. Don't give them the opportunity - because they will surely use it. And don’t even think about “three strikes” or the so-called “graduated response” approach. It would be a policy and political disaster. You don’t take away the family car because one of the kids gets caught speeding.

4. The circumvention debate should be simplified by making circumvention clearly legal for any legal purpose, such as fair dealing, time, space and format shifting, bypassing regional coding, access for the blind or other perceptually handicapped persons, archiving for backup purposes and, of course, repairing a computer damaged by malware from copyright owners seeking to impose DRM and TPM. Any product that is capable of substantial non-infringing use should be legal. Otherwise, we will never again see innovations such as photocopiers, VCRs, personal computers, iPods, etc. To simplify the DRM/TPM debate, we need protection from DRM and TPM technology and not for it.

5. We need to clarify and simplify the complex question of whether copyright law can be used to control or even prevent free trade in legitimately made articles sourced from abroad where the copyright involves only the packaging or labelling other merely incidental elements of the product. Copyright law was never intended to restrict free trade and competition in products such as chocolate bars or wrist watches.

6. Above all, we need to simplify by ensuring technological neutrality and clear, general language. Our 1921 legislation, based on the classic 1911 British model, comprises the core of our current legislation. It's still pretty good. It was short, elegant and largely technologically neutral - even at a time of great technological ferment a century ago.

Canada has a choice now - which is to have one of the best new copyright laws anywhere or to have one of the worst, such as Bill C-61 would have given us. We don't need another 50 page "Made worse in Canada" incomprehensible C-61 type rewrite of the failed US DMCA approach. We should emulate the best of the US and other statutes, not the worst. My half dozen suggestions could be drafted in a matter of days, not weeks or months. If the Bill is more than half a dozen pages long, we will already be in big trouble. We already have one of the strongest and best copyright laws in the world. Let’s make it even better.

Thank you for your attention.

Howard Knopf

Access Copyright's Grass Roots (="Sabotage"?) Campaign

Cory Doctorow @ Boing Boing - a very successful expat Canadian author - has a good blog today about how:

Access Copyright, the Canadian author's collecting society (a group that collects money from libraries for book lending and gives it to authors) is using its members' money to sabotage an enormously popular consultation on the future of Canadian copyright.

(emphasis added)

(A small point of correction, Cory. AC is guilty of many things - but administration of the the Public Lending Right - which is actually a good thing because it is designed to help Canadians - isn't one them)

He concludes:

As a Canadian author, Access Copyright is supposed to represent my interests in the Canadian copyright debate. Instead, they are setting out to undermine the first glimmer of sanity in Canadian copyright policy in three governments -- and using my money to do it. For shame.

BTW - here's the whole of AC's missive to its members. And - no - I didn't ask for permission to link to this, as AC once famously insisted was necessary in the Captain Copyright fiasco. Its policy at the time was:

Permission is expressly granted to any person who wishes to place a link in his or her own website to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of, Access Copyright. In the event we contact you and request the link be removed, you agree to comply with that request promptly. If you link to or otherwise include www.captaincopyright.ca on your website, please let us know and create any link to our home page only.
(emphasis added)

BTW, despite the name of this blog, Excess Copyright, this blog is not associated in any way with Access Copyright. Old time followers of Access Copyright might remember when it was called CanCopy. It changed its name several years ago to Access Copyright, perhaps because of too many references to Can'tCopy. I wonder what its next name will be.

Other recent Access excesses are discussed here (attempt to get $24 p.a. for each FTE provincial civil servant) and here ($5.16 for each kid in K-12).

Moreover, AC has great difficulty distributing to actual authors the tens of millions a year is so successfully collects. No problem, however, in paying for staff, consultants, lawyers, etc. About 17% of its 2008 revenues of about $37 million went to operating expenses.

And as I said earlier:

Meanwhile, AC has budgeted an astonishing $915,000 for “Copyright Board applications” for 2009 - when there are no AC hearings scheduled. You can bet that this is going straight into the Mother of all cases aimed at post secondary copying. Will anyone step up to the plate to fight this really hard with a truly adversarial approach aimed at saving the taxpayers tens of millions of dollars? Based upon what we have seen in the past, it's very unlikely.

It also may be going into setting the stage for fighting for the $24 per provincial government employee tariff that will take at least $12 million out of the Canadian tax payers pockets for no good reason, unless cut down to size - which is probably at or near zero. Apart from copying for "research" purposes as interpreted by the Supreme Court of Canada and the copying of internally generated documents, it's difficult to conceive of what other copying activity exists inside government.

HK