“Blame Canada” for the Copyright Reform Impetus in EU?

On July 2, 2014 Mme Neelie Kroes who holds the important position of Vice-President of the European Commission (“EC”) responsible for the Digital Agenda, gave an important speech on copyright reform in the EU entitled “Our single market is crying out for copyright reform” in Amsterdam. This was at the Information Influx International Conference at Institute for Information Law, University of Amsterdam. She said many good things in her short speech, such as:

When uncertainty prevents people remixing or creating their own content, how does that boost creativity?

When teachers are afraid to share teaching materials online, how does that help our society?

When a European Video-on-Demand provider tries to expand to new markets, but gives up because clearing copyright is so catastrophically cumbersome: how does that benefit our economy?

When consumers want to buy films or TV shows online but find they are geo-blocked: how does that benefit the fight against piracy? How does it benefit the artists whose works they could be watching?

When lovers of old films have to physically fly to a different country to see them, even if they're no longer in commercial circulation, how does that support European culture?

When museums have to take out insurance specifically against the risk of copyright lawsuits, because it's too complex and costly to figure out – how does that help promote European heritage?

When you can't sing happy birthday, or post a picture of the Atomium, how is that fair or reasonable, how is that something you can explain to ordinary citizens?

When European scientists have to abandon text or data mining because they can't afford the legal fees – how does that help innovation and scientific progress? And by the way that restriction is costing our economy tens of billions of euros.

I see no real winners in any of those cases. Creators lose out; innovators lose out; users lose out; our economy loses out. The system serves no-one. Solve those problems and I see only winners. We just have to jump over our own shadow.

Technology moves faster than the law can, particularly in the EU.

She also went on to say that “Things need to change in Europe and they need to change right now. It's obvious, as other parts of the world have already seen” and she specifically mentions Canada, along with Japan, as examples of countries where copyright reform has recently taken place.

She went on to add that: 

In none of those places has the sky fallen in. All of those places are now innovating, creating, progressing, while the EU lumbers by with an ageing system for an analogue age.

Of course, certain collectives do not take kindly to progress and innovation when it comes to copyright legislation, especially when it involves fair dealing and other copyright exceptions, which the Supreme Court of Canada considers to be “users’ rights”.

So, it’s not surprising that IFRRO – the International Federation of Reproduction Rights Organisations, of which Canada’s Access Copyright is a member, has responded with a “blame Canada” letter full of questionable information and devoid of any causal analysis suggesting that recent developments in Canada have had a very negative effect on educational publishing in Canada. Here is IFFRO’s letter, which is clearly based upon now familiar refrains composed in Canada and thoroughly debunked by Prof. Ariel Katz, earlier this summer here, here, here and here.

And, course, there not a word about the savings in cost to taxpayers and students, and the expansion, liberation and increased access to material that Access Copyright has done its utmost to restrict and to charge for. Access Copyright has taken its aggressive positions regardless of whether the material is within its repertoire by any reasonable legal notion of chain of title or regardless of whether Access Copyright has any clear legal basis for any claim to the rights asserted (such as a linking right) – not to mention what Parliament and the Supreme Court of Canada have confirmed about fair dealing. I should point out that the factum that Prof. Ariel Katz and I prepared in one of the Supreme Court cases – the Province of Alberta case - played an apparently significant role in the current state of Canadian copyright law concerning fair dealing.

Perhaps IFRRO may want to think twice in the future before taking such blatantly one-sided and unsubstantiated positions in such important fora as the European Commission.

So, is the sky falling in Canada or is this all much ado about nothing? The irony of how Access Copyright has dealt inconsistently with these types of arguments has not been lost. Michael Geist pointed this out back in April. On the one hand, Access Copyright argues (incorrectly) at the Copyright Board that the 2012 amendment adding “education” merely “codified” the Supreme Court of Canada cases that, in its view, had a very narrow and limited impact anyway (see here page 13 ff.). On the other hand, it makes virtually the same nearly apocalyptic arguments through IFFRO that it also made unsuccessfully to Parliament in a futile attempt to block inclusion of the word “education” in s. 29 of the Copyright Act. It also “supports” (here at page 29) the seriously misstated and misleading analysis of Canada law by the Association of Canadian Publishers, which I have long ago discussed in some detail here. More consistency and credibility might be helpful to the creator affiliates of Access Copyright, of whom I confess to being one.

HT to Cedric Manara for bringing this EU development to my attention.

HPK

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

 

 

 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:

• Gasaway
• Hirtle 
• Benedict O'Mahoney 

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.

HK

ACTA "intercessional" [sic?] meeting in Washington, August 16, 2010

It seems that there will be an "intercessional" [sic?] ACTA meeting in Washington, D.C. on August 16, 2010.

Either somebody (USTR?) can't spell or this is a great pun or Freudian slip.

"Intercession" usually has religious significance, i.e. see here and here, i.e. in the sense of mediating between two parties who can't agree, which seems to be the situation these days between the US and the EU over ACTA, which both parties are pursuing with religious-like fervour but also with fervent disagreement over just how excessive and aggressive the agreement should be.

Whether this will be an "intercessional" or "intersessional" meeting, apparently the meeting will be only between the USA and the EU, with the less important countries, in their view, such as Canada not invited.

Speaking of religion, I guess that "They also serve who only stand and wait..."

HK

Putting IP Into Yorkshire Pudding

I didn't know that cats like Yorkshire Pudding - but the IP Kat is all over it today. “Yorkshire Pudding” is being proposed as an official EU Geographic Indication ("GI"). And Canada is negotiating an FTA with the EU - so this has implications here. If you don’t believe me, see the IP Kat & BBC

So - does this mean that, if Canada signs a Comprehensive Economic and Trade Agreement (CETA) with the EU, I won't be able to order "Yorkshire Pudding" with my roast beef here in Ottawa at Hy’s, unless it's flown over fresh from Yorkshire? It would probably be a bit flat and soggy after the flight. What's next? Beef Wellington, Worcester Sauce, Dover Sole?


Jeremy and I are are doing intensive research on the economic, diplomatic and other public policy issues - not to mention - legal - that this initiative could provoke. As is often the case, the IP Kat is first to pounce upon delectable intellectual property morsels.

HK

The US Copyright Glass House cont'd

(Philip Johnson's "Glass House"/Business Week)

The European Commission has released a document entitled the UNITED STATES BARRIERS TO TRADE AND INVESTMENT REPORT 2008.

On the copyright front:

1. It notes the continued failure by the USA to address the violations adjudicated by the WTO in 2001 in the “Irish Music” case, which I've mentioned many times in this blog, e.g. here.
2. It notes the continued failure of the US to provide broadcasting and or public performance rights to performers and producers and its failure to join the Rome Convention of 1961.
3. It notes the “very limited extent” of moral rights in the USA, despite US accession to the Berne Convention in 1989.

The Report also notes the US multilateralism and unilateralism, as exemplified particularly in the notorious annual “301" exercise, which has been rendered “ineffective against WTO members” as a result of an EU challenge and 1999 WTO ruling.

Of course, the silly politics of the “301" exercise remain, and we hear much the same recycled disinformation about Canada each year.

HT to IP-Watch.

HK

The Maple Leaf Forever in Europe?

An update on earlier items here and here about the Canadian Maple Leaf emblem and EU trade-marks law.

The ECJ - the ultimate judicial authority in Europe - has issued a final ruing - and ruled that the commercial mark on the right could not be registered because of its resemblance to Canada's state emblem. Here's the ruling and here is IPKat's very timely take on it.


HK

EU on Pharma Antitrust

Big news from Europe on DG Comp action re the Pharma sector:

According to IP Watch:

Pharmaceutical companies are manipulating the intellectual property rights system and are “actively trying to delay the entry of generic medicines onto their markets,” a top EU official said of an EU inquiry into the pharmaceutical sector released Wednesday. As a result, there has been a decline in the number of innovative medicines getting to the market, it says.

Also, excellent coverage at IPKat here.

Meanwhile, Canada's Competition Bureau is busy working on the menace of the Nigerian Letter Scam. Hopefully, they are also doing other things in IP - but there's little sign of it, other than holding an invitation only symposium that resulted in a recently published book that I will comment on in due course.

HK

Some Possible Canada EU FTA IP issues

The Canada/EU FTA negotation process is underway. The EU has published a consultation document (HT to Jamie Love) asking what stakeholders think of Canada.

From an IP standpoint, there are many clear opportunities and pitfalls for Canadian interests depending on point of view. For example, consider the following - which apart from the first and the above illustrations relate to copyright law:

1. The EU is very aggressive on geographical indications. Does Canada want to take away the right of its food manufacturers, retailers and restaurants to sell domestically made products such as the following that we have referred to for years as:
a. "parmesan" cheese
b. “dijon” mustard
c. “prosciutto” ham?

2. The EU is has a life plus 70 year copyright term and is heading towards a 70 year term for sound recordings. The EU will clearly not harmonize downwards to meet Canada on this. Canada will be under great pressure to harmonize "upwards" to these lengthy terms. This would clearly be highly controversial in Canada.

3. The EU will doubtless press for quick Canadian ratification of the 1996 WIPO internet treaties, even though the EU has not ratified these treaties to date and has been claiming that such ratification is imminent for many years.

4. The EU has a very complex labyrinth of laws concerning parallel imports or "grey market" products. Essentially, they amount to a strong "Fortress Europe" regime to keep parallel imports out but such products are allowed to flow freely within the EU if they have been imported with the appropriate "consent", whatever that may mean. If goods can flow freely between Canada and the EU, the EU will probably want Canada to drastically change its laws to tighten up the possibility of allowing parallel imports into Canada because Canada could become a "back door" to Europe. This could prove costly for Canadian consumers, because IP has hitherto been essentially ineffective to block parallel imports of consumer goods into Canada, except for books. The EU is generally a very "high price" market for the types of goods that are subject to parallel trade, perhaps in large part because of its IP policies on parallel imports.

5. The EU has much more a much active antitrust policy and enforcement mind set and mechanism than Canada, and is extremely cognizant that IP rights are prone to abuse and other anticompetitive practices.

6. The EU will no doubt press for expanded ex officio border actions without Court orders that could interfere with legitimate trade and may not be necessary or desirable from a Canadian standpoint. This effort will no doubt be linked to the still secretive ACTA process.

7. The EU also has a rather strange database protection regime, which has led to some odd results in terms of "extraction" of information. Whether the EU will press for this remains to be seen.

I have not yet considered patent or trade-marks law, or the seal hunt.

EU Sound Recording Term Extension Vote Delayed

Big reported news from Europe. The vote scheduled for March 23, 2009 on copyright term extension for sound recordings from 50 to 95 years has according to the Open Rights Group been postponed until late April. Here's the posting from the Soundcopyright blog:

Amid intense lobbying in the European Parliament next Monday's vote on the proposal to extend the term of copyright has been struck off in a shock move. Following a meeting of the presidents of the political groups in the European Parliament on Tuesday, and with controversy and a lack of consensus surrounding the proposal, MEPs have delayed voting till the end of April - just before this summer's European elections. A trialogue discussion between the European Commission, Council and Parliament, set for the end of March, will now attempt to broker a deal to see if the directive will be allowed to pass.

Prof. Martin Kretschmer has had a lot of useful things to say about all of this recently in The Telegraph.

This is not necessarily a victory for opponents of the term extension. Sources suggest that there is a danger of a "compromise" deal that would still result in a 70 year term.

HK

Canada EU FTA

As I indicated on January 16, 2009, Canada seems to be lurching ahead on a Canada EU FTA with the EU. There was virtually no time for anyone to provide input before the Government's January 20, 2009 deadline. Clearly, the Government wasn't very interested in public input, having announced the consultation deadline just before Christmas.

IP, of course, is on the table in TRIPS + format. Canada can only lose on the IP front overall if IP remains on the table. We will probably have to agree to copyright term extension, ACTA, and lots of other maximalist positions. The RIAA, MPAA and their Canadian operations , CRIA and CMPDA, will, of course, be delighted.

While freer trade with Europe may be a good thing overall, and Canada needs to move beyond total dependency on trade with the USA. the IP matrix holds little hope of anything positive for Canada overall in this exercise. Europe cannot ratchet down from its largely American induced follies that have been implemented in many cases by clever US corporate and government "policy shopping."

Policy shopping is a the practice of obtaining legislation and/or treaties that would be unacceptable if initiated in the home country. However, once done, there is enormous pressure in the home country to "harmonize" to the other jurisdiction. Many believe that this is how the life + 70 Mickey Mouse term came into being in Europe, although the official excuse in the EU was harmonization to Germany's term.

Canada's only hope on this issue is to somehow try to get IP off the table. However, as is Canada's custom, we seem to have agreed at the outset to negotiate on IP issues where we cannot win overall other than maintaining the status quo, which seem to have been conceded away at the outset.

I cannot think of any important IP issue where Canada would make demands on the EU. However, on many important and controversial IP issues, the EU will probably force Canada into policies that will be clearly contrary to Canada's interest.

HK

EU Sound Recording Term Extension Battles

A major battle is brewing in the EU over term extension for sound recordings - from 50 to 95 years.

The European Commission - ignoring the independent expert report it commissioned from Bernt Hugenholtz and the work of other independent experts - is insisting that session musicians will benefit to the tune of about €2,000 a year. On the other hand, according to IP-Watch,

the Open Rights Group, a civil liberties organization, has contested McCreevy’s estimates about the extra revenue that would accrue to session musicians. It has calculated that some 80 percent of recording artists would only receive between €0.50 and €26 each year if the proposal becomes law.

Ironically, in a dangerous downward (or maybe upward) spiral, the EU is trying to harmonize the term of sound recordings with that of the USA. It will be recalled that the Mickey Mouse Copyright Term Extension Act of 1998 in the USA was justified by a need to harmonize to Europe's life + 70. In turn, Europe went up to life + 70 so as not to offend Germany.

In any discussions about renegotiating NAFTA, recall that Mexico has gone to life + 100.

Anyway, more details of the mess are available here from IP-Watch.

Video on Proposed Term Extension of Sound Recordings in EU

Here's an outstanding video from the Open Rights Group on the European Commission's determination to ignore all the reliable evidence (including the work it itself commissioned from Bernt Hugenholtz et al) and push for term extension of sound recordings to 95 years. According to ORG, this would create a windfall for record companies and potentially provide negligible help and even harm to ordinary working session musicians - all at great cost to economic cost to consumers and a considerable encroachment on the public domain. There are lots of specific numbers here...

HK

Canada - EU FTA - Consultation Deadline January 20, 2009

A possible Canada - European Union (“EU”) Free Trade Agreement (“FTA”) is in the works. For whatever reason, the Government is calling it a “comprehensive economic agreement” and not an FTA. On December 20, 2008 the Canadian Government announced a consultation process.

There is an effectively hidden deadline to comment of next Tuesday, January 20, 2009.

There is a lengthy paper setting the stage for the many issues that could arise in these negotiations. There is a ten page discussion of IP issues.

The IP discussion does not explain the potential complexities and controversies that could arise. The Government of Canada expects a response from the pubic by January 20, 2009. This is somewhat astonishing, given the announcement of “consultation” only on December 20, 2009 - five days before Christmas. It is unclear why this extremely short deadline is in effect.

There is probably little awareness of the deadline. True, the notice was published in the Canada Gazette. But, as the late Gordon F. Henderson said, the best way to keep a secret in Ottawa can be to publish it in the Canada Gazette.

Considering the timing of the announcement just before the Christmas break, the focusing of attention on the forthcoming budget, and the coincidence of the one month deadline with the US Obama Inauguration events, the short deadline suggests that the Government wants this initiative to get as little attention as possible.

From an IP standpoint, there are some obvious opportunities and pitfalls depending on point of view:

1. The EU is has a life plus 70 year copyright term and is heading towards a 95 year term for sound recordings. The EU will clearly not harmonize downwards to meet Canada on this. Canada will be under great pressure to harmonize “upwards” to these lengthy terms. This would clearly be highly controversial in Canada.

2. The EU will doubtless press for quick Canadian ratification of the 1996 WIPO internet treaties, even though the EU has not ratified these treaties to date and has been claiming that such ratification is imminent for many years.

3. The EU is very aggressive on “appellations d’origine” or geographical indications. Does Canada want to take away the right of its cheese manufacturers, retailers and restaurants to sell domestic “parmesan” cheese, for example?

4. The EU has a very complex labyrinth of laws concerning parallel imports or “grey market” products. Essentially, they amount to a strong “Fortress Europe” regime to keep parallel imports out but such products are allowed to flow freely within the EU if they have been imported with the appropriate “consent”, whatever that may mean. If goods can flow freely between Canada and the EU, the EU will probably want Canada to drastically change its laws to tighten up the possibility of parallel imports into Canada because Canada could become a “back door” to Europe. This could prove costly for Canadian consumers, because IP has hitherto been essentially ineffective to block parallel imports of consumer goods into Canada, except for books. The EU is generally a very “high price” market for the types of goods that are subject to parallel trade, perhaps is large part because of its IP policies on parallel imports.

5. The EU has much more a much active antitrust policy and enforcement mind set and mechanism than Canada, and is extremely cognizant that IP rights are prone to abuse and other anticompetitive practices.

6. The EU will no doubt press for expanded ex officio border actions without Court orders that could interfere with legitimate trade and may not be necessary or desirable from a Canadian standpoint. This effort will no doubt be linked to ACTA.

7. The EU also has an unfortunate database protection regime, which has led to some bad results in terms of “extraction” of information. Whether the EU will press for this remains to be seen.

HK

Gowers on UK Term Extension Capitulation

Mr. Gowers is not impressed by the British Government's capitulation to the record industry on term extension for sound recordings:

Politicians often do and say silly things when they come into contact with celebrities.

So it was last Thursday when a star-struck Andy Burnham, Britain’s secretary of state for Culture, Media and Sport, showed up for a speech and photo-opportunity with the former lead singer of the Undertones, a punk-pop combo of the 1970s. In addition to the usual pleasantries about Britain’s creative industries, Mr Burnham set out a novel argument about the law of copyright protecting musicians’ work.

Here's the whole article in today's Financial Times.

UPDATE & PS:

The UK secretary, Mr. Burnham, replies here.

HK

The Three Step Test, eh?

Bill Patry has an interesting blog today about a new declaration on the three step test from the Max Planck Institute.

Some very notable European and American academic expertise went into this document.

Here's the declaration:

The Signatories,
- Recognising the increasing reliance on the Three-Step Test in international, regional and national copyright laws
- Considering certain interpretations of the Three-Step Test at international level to be undesirable,
- Perceiving that, in applying the Three-Step Test, national courts and legislatures have been wrongly influenced by restrictive interpretations of that Test,
- Considering it desirable to set the interpretation of the Three-Step Test on a balanced basis,
Declare as follows:
1. The Three-Step Test constitutes an indivisible entirety.
The three steps are to be considered together and as a whole in a comprehensive overall assessment.
2. The Three-Step Test does not require limitations and exceptions to be interpreted narrowly. They are to be interpreted according to their objectives and purposes.
3. The Three-Step Test’s restriction of limitations and exceptions to exclusive rights to certain special cases does not prevent (a) legislatures from introducing open ended limitations and exceptions, so long as the scope of such limitations and exceptions is reasonably foreseeable; or (b) courts from - applying existing statutory limitations and exceptions to similar factual circumstances mutatis mutandis; or - creating further limitations or exceptions, where possible within the legal systems of which they form a part.
4. Limitations and exceptions do not conflict with a normal exploitation of protected subject matter, if they
- are based on important competing considerations or
- have the effect of countering unreasonable restraints on competition, notably on secondary markets, particularly where adequate compensation is ensured, whether or not by contractual means.
5. In applying the Three-Step Test, account should be taken of the interests of original rightholders, as well as of those of subsequent rightholders.
6. The Three-Step Test should be interpreted in a manner that respects the legitimate interests of third parties, including
- interests deriving from human rights and fundamental freedoms;
- interests in competition, notably on secondary markets; and
- other public interests, notably in scientific progress and cultural, social, or economic development.

Concerning the third point, Bill says, in what may be a not too veiled reference to Canada:

The last statement refers of course to fair use and should be a helpful rebuke to the whispering campaign being conducted in certain national capitals against the adoption of more liberal fair dealing laws.

(emphasis added)

Once again, thanks Bill.

HK