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

Perennial IIPA Blame Canada Litany

The annual International Intellectual Property Alliance ("IIPA") litany of misleading and overwrought allegations against Canada as a "haven" for all sorts of "piracy" and other evils has just been published.

The IIPA, which has been run by a couple of very smart lawyers in Washington, describes itself as follows:

The International Intellectual Property Alliance (IIPA) is a private sector coalition, formed in 1984, of trade associations representing U.S. copyright-based industries in bilateral and multilateral efforts working to improve international protection and enforcement of copyrighted materials and open up foreign markets closed by piracy and other market access barriers.

IIPA’s seven member associations are: the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (IFTA), the Motion Picture Association of America (MPAA), the National Music Publishers’ Association (NMPA) and the Recording Industry Association of America (RIAA). IIPA’s seven member associations represent over 1,900 U.S. companies producing and distributing materials protected by copyright laws throughout the world—all types of computer software, including business applications software and entertainment software (such as videogame discs and cartridges, personal computer CD-ROMs, and multimedia products); theatrical films, television programs, DVDs and home video and digital representations of audiovisual works; music, records, CDs, and audiocassettes; and textbooks, trade books, reference and professional publications and journals (in both electronic and print media).

One of the IIPA lawyers has recently appeared with a leading Canadian entertainment industry lawyer/lobbyist to stage faux-"debates" under the aegis of the the Canada Institute of the Woodrow Wilson International Center no less, which should be embarrassed at having provided such a blatant lobbying podium in both Toronto and Washington. These were not debates. They were duets.

The IIPA tells us how we should run our law enforcement agencies, operate our borders (by keeping Judges out of the seizure procedure because going to court is "unduly burdensome") and generally using taxpayer resources to enforce their members' private rights.

Unfortunately, they have sympathetic listeners in Canadian law enforcement and the government itself.

But the real agenda here may well involve other issues - such as parallel imports, which are perfectly legal and - to the dismay of many content owners - very competitive and consumer friendly. For a lot of content owners, anything that can delay or hinder parallel imports or other legitimate products is good. That easy access to non-judicial "ex officio" border enforcement can be used for abusive and anti-competitive purposes has recently been illustrated in the Netherlands with respect to perfectly legal - but "generic" - AIDs medication that reportedly got seriously held up for all the wrong reasons. People may well have died.

It certainly seems incongruous to hear a major trade association in the entertainment business taking upon itself the crusade against counterfeit toothpaste, etc.

Nobody defends piracy or counterfeiting. The problem, however, is to ensure that changes in the law don't affect legitimate activity, such as parallel importation.

We have seen how the pursuit of a just, commendable and unnecessary cause (anti-terrorism) can lead to serious, unnecessary and inefficient erosion of privacy and other fundamental rights of countless innocent people. Let us hope that the overblown invocation of "piracy" and "counterfeiting" does not cause more harm than good.

HK

The Annual “301" Show - USTR Calls for Comment - 21 Reasons Why Canadian Copyright Law is Already Stronger Than USA's

The deadline for submissions on the U.S. “301" process has been extended until 5:00 PM on Thursday, February 18, 2010 due the Washington weather. This year, the USTR is calling for public submissions and will hold hearings. In the past, the process has been far from transparent. In fact, in the past the report has been heavily influenced if not essentially drafted by certain Washington lawyer/lobbyists with major copyright content industry clientele operating under the banner of the International Intellectual Property Alliance.

Unfortunately, it appears that the Canadian Government is not going be making a submission, despite the outreach of the USTR this year in inviting submissions and even conducting oral hearings. This could lead to false and misleading suggestions that Canada doesn't care or that it accepts past accusations. Sometimes, it's OK and even prudent to ignore absurd charges and processes. But the U.S. has taken the strategic high ground and the tactical initiative by at least purporting to open up this process. Whatever the intention, it's a clever move on the part of the USA. Therefore, it's risky to boycott it or ignore it at the public level. Private diplomatic submissions behind the scenes do nothing to reassure Canadians and will likely have little, if any, influence in Washington these days. Unfortunately, Canada's public silence on this and other IP issues may create the impression, rightly or wrongly, that Canada either cannot make up its mind or is unwilling to take a public stand on important but controversial issues. Either way, Canada risks an ever diminishing role in fora such as WIPO, ACTA, Canada/EU FTA, WTO, etc.

Nonetheless, this is an important opportunity to make views known, since the usual suspects in the U.S. copyright based industries will be working through the usual Washington lawyer/lobbyists that have much influence in the USTR to draft a report that could once again falsely condemn Canada as a rogue nation and a piracy haven, when the truth of the matter is that:

• Canada already has much stronger copyright laws in many ways than the USA;

• These stronger laws result in significant dollar outflows that greatly favour U.S. interests with little or insufficient benefit for Canadians;

• There is no verified and reliable evidence of piracy or counterfeiting problems in Canada that are any worse than in other comparable countries. In fact, the largest and most accessible market in North American for pirated and counterfeit consumer products remains the streets of mid-town and lower Manhattan;

• The alleged deficiencies in Canada's laws regarding file sharing have not been proven in any Canadian court and the music and film industries have taken no serious initiative to do so, despite having been given a green light to proceed by the Federal Court of Appeal in 2005. Instead, they lobby for US DMCA+ type laws. Indeed, much of the alleged copyright problem that the music industry complains about in Canada is a direct result of its own successful wish for a rich private copying levy, the result of which has included the effective legalization of music downloading in this country, according to comments by both the Copyright Board and the Federal Court. The music industry has proven only that it ought to be careful what it wishes for, not that there is any need to change Canadian law; and,

• The entertainment industry in Canada is doing quite well, even as things stand. As Michael Geist recently reported, “Nielsen Soundscan has just released the Canadian music sales figures for 2009. Notwithstanding the regular claims that the Canadian digital music market cannot develop without copyright reform, the Canadian market grew faster than the U.S. market for the fourth consecutive year.”

Here's where you can make a submission to the USTR.

Here's where you can use a Public Knowledge template and customize it :

More info here.

Canadian copyright law is actually much stronger than U.S. copyright law in many ways, some of which are worth quite a lot of money to the USA. It is worth noting as well that, for most of the last century, most copyright royalties in Canada have been flowing to American corporate interests. While stronger copyright laws may not always make for better public policy, they often result in significant royalty outflows to U.S. and other foreign interests. Here are some 21 examples of how Canada’s copyright law is already stronger than the U.S. regime:

1. Canada has about 36 copyright collectives, many of which have received substantial direct and indirect government subsidies. The U.S. has only about half a dozen, with no government support.

2. Canada has a full-time Copyright Board which has normally had four full time members plus a sitting or retired Judge as Chairman and currently about a dozen full time professional and administrative staff. The Board has enormous policy and, effectively, law making powers. No other country of which I am aware comes close to having such a large, permanent, powerful and full time copyright tribunal.

3. Broadcasters pay more for copyright royalties than their counterparts in the USA, much of it for rights that don’t even exist in the USA - for example the “ephemeral right.”The U.S. provides an outright exemption in 17 USC §112 for the “ephemeral right.” Now, about $50-million a year more over and above is being demanded by a collective dominated by the American dominated record labels for this right in addition to amounts now collected by composers, authors and publishers. Canada's Copyright Board heard a major case on commercial radio, where this and other issues will be decided, in December of 2008 and January of 2009. However, it will probably be at least 18 months to two years after the hearing before a decision is announced, based upon the timing of some recent major decisions from the Board.

4. The Canadian Copyright Board values each right under the Copyright Act brought before it separately, with little regard to the layering and multiplicity of tariffs that result, in effect, for the same transaction. Whether this is an error in approach by the Board, and/or in policy, and/or in legislative drafting or at all is subject to fair debate. But the fact is that U.S. law goes to great length to avoid such a result, as recent court decisions have confirmed.

5. Educators pay far more for copyright clearance than their American counterparts. There is simply no mechanism in place in the USA analogous to the excessive $5.16 per K-12 student or the excessive per student and course pack rates payable to Access Copyright for post secondary students. There's a similar mechanism for Quebec. Canada's Copyright Board has pushed back on what it considers to be fair dealing in the class room from what the Supreme Court of Canada arguably requires and American law clearly permits. (The Copyright Board's controversial decision is currently under Judicial Review, in which I should disclose that I am involved).

6. Access Copyright is trying to collect $24 a year for each full time employee in Canadian provincial and territorial governments, not counting Quebec. This is potentially a cost of $6.5 million a year for Canadian taxpayers, which seems absurd in view of the Supreme Court of Canada's CCH v. LSUC decision, since most, if not all, copying of protected material would likely be for research purposes. Nonetheless, a very expensive proceeding will slowly unfold before the Copyright Board and probably beyond into the Courts. Even with an unusual push by the Copyright Board to get this moving, it will likely drag on for years. Such a tariff or equivalent mechanism would never get off the ground in the USA for many reasons, including that state sovereign immunity is well established by the U.S. Supreme Court. There may very well be provincial crown immunity in Canada, but to what extent it will be invoked is currently unclear. At any rate, this new attempted tariff by Access Copyright has no counterpart in the USA and is yet another are in which U.S. copyright owners could prove to be better off in Canada than in their own country.

7. Canadian law requires payment for certain educational uses that are explicitly exempted in the USA, such as the performance of films in a classroom.

8. Canada has no explicit statutory exception for the performance of music for the purpose of selling sound recordings or audiovisual equipment, as is found in §110(7) of the U.S. Copyright Act.

9. Canadians pay large amounts to SOCAN and NRCC for performances in countless bars, restaurants, retail stores, and other small area business establishments. The U.S. notoriously exempts these establishments, contrary to a WTO “Section 110" ruling which the U.S. continues to flout. The U.S. is by far the leading adjudicated current violator of international copyright law.

10. Canada has very inadequate rights in place for distance educators. This results in higher costs and less access to such innovative education, which is the way of the future. The USA has a regime which, though far from ideal, represents a very serious attempt to deal with this new and important phenomenon.

11. Canada has “neighbouring rights.” The U.S. doesn’t. This translates into very big payments for record producers and performers. The Copyright Board has decided that these rights are worth as much in principle as performance rights for composers and authors, which currently generate well over $200 million per year. The limitation on eligibility for foreign neighbouring rights claims - which is probably already subject to much leakage - would simply disappear if Canada ratifies the WPPT.

12. Canadian movie theatres have to pay SOCAN for exhibiting films. NRCC is trying to get the same result. While these rights are normally bought out and cleared for Hollywood productions in the USA, and there is no further requirement to pay ASCAP, BMI or SESAC, Canadian law has thus permitted SOCAN to collect from theatres in Canada for showing the same films. SOCAN collected $881,000 for theatrical exhibition of films in 2005. Though not a huge amount of money per annum, this has been going on for decades. Guess where most of the money goes.

13. Canada has a rich blank media levy scheme that has generated nearly $300 million overall to date, most of which will wind up in the USA. Artists see at most about an average of $160 per year of this - and probably much less in reality on an average basis. The U.S. has never had anything comparable. (I've been involved in this issue for a long time).

14. Canada has moral rights for all types of works, as required by the Berne Convention. The U.S. doesn’t, with the limited exception of visual arts works. Any possible pretence that the USA provides moral rights generally through other means was put to rest by the U.S. Supreme Court in the 2003 Dastar decision.

15. Canada seriously respects the right of independent creators to own their copyright. The U.S. walks all over this with its broad “work for hire” doctrine that favours large corporations.

16. Canada long ago got rid of most of its compulsory licences, including the mechanical license for sound recordings. The U.S. still has this and many more, while it continues to preach to other countries against compulsory licenses.

17. Canada has no parody right/exception for creators and users. In fact, the Canadian Federal Court has explicitly ruled against such a right. On the other hand, the U.S. Supreme Court has confirmed such a right.

18. Canada has no time shifting exception that would clearly allow for legal use of DVRs/PVRs such as the TIVO in Canada. The U.S. has had this since the 1984 Betamax decision from the U.S. Supreme Court. Recent U.S. jurisprudence in the Cablevision case has extended this user right and this technology into “the cloud”.

19. Canada has crown copyright, which leads to all kinds of unnecessary costs and complications for those ranging from advanced researchers to fishermen, who should be able to depend on mapping and GPS information for life saving purposes from the government and not privatized for profit parties. Canada privatizes its government copyright for profit, which cannot happen in the USA. This has not necessarily led to more efficiency. In some cases it has been quite the opposite.

20. Canada has a lower threshold of originality than the USA and provides protection in some instances where the U.S. clearly would not. Canada has no counterpart to the U.S. Bridgeman v. Corel decision denying copyright in photographs of public domain paintings. Nor would a U.S. Court ever confer copyright in the simple idea of including a column of private sale prices for used cars in a three column layout in a booklet of used car prices with no copying of actual data, as the Canadian Federal Court of Appeal did in a 2000 decision that was based upon very inadequate arguments and is inconsistent with other Canadian jurisprudence both before and after, but which has not yet been explicitly overruled.

21. Canada's historic lack of compulsory registration and formal renewal requirements together with our very longstanding life plus fifty term has frequently resulted in a much longer duration of copyright protection for American works than is the case in the USA. A prime example is the music of Irving Berlin. This may be an unusual example because of Berlin's great age and importance, but he outlived his own copyright in his early pre-1923 compositions in the USA. However, copyright in Berlin's music will endure in Canada until 2039 for all of his works. There will also be a longer term in Canada than the USA for many older films that have long since entered the public domain in the USA where the term is normally calculated from the date of publication. In Canada, however, the term of protection is measured in terms of the life of the actual creator(s) plus 50 years.

I would hope that both the Canadian and American Governments are aware or become aware of the above points.

The danger from the “301" process is not so much any kind of retaliation or other direct action, which the WTO has outlawed, not that the USA would necessarily pay attention to that ruling. The real danger is that well meaning but non-expert officials and politicians on both sides of the border and even in other countries may be influenced by inaccurate and/or misleading findings by the USTR resulting yet again from the incessant spin, propaganda and lobbying at any cost by certain U.S. dominated industries. One has to ask what financial return is expected by these industries to justify the clearly enormous spending on Canadian and American lawyer/lobbyist and other high profile activity.

HK

PS:

I presented a paper about this at the 2008 Fordham conference entitled: Why Canadian CopyrightLaw Is Already Stronger And Better Than That Of The USA - And Why The USAShould Look In The Mirror Rather Than At Its “Special 301" WatchList.This has only 15 rather than 21 points but more analysis.  

Reflections from Fordham - 2008

The annual Fordham International Intellectual Property Law and Policy Conference has just taken place, as always The First Thursday and Friday After Easter.™ The following is a very limited and personal take on a very complex and comprehensive conference.

The Canadian Panel:

Once again, through a lot of hard work, we’ve been able to convince Prof. Hugh Hansen (the conference director) to put on a provocative and balanced panel on Canadian copyright law. This is despite the fact that Canada has been crying “wolf” on new legislation for several years now.

This year, the panel consisted of:

1. Prof. Daniel Gervais, who talked mainly about the 2007 Kraft decision from the Supreme Court of Canada (a favourite case of mine because I made the prevailing argument).


2. Justice William Vancise, the Chairman of the Copyright Board, who chose to speak and write about “What are "adequate reasons" in a Decision of the Canadian Copyright Board? To what Degree Should Appellate Courts Defer to the Expertise of Specialized Tribunals? And Do They?”

3. Steve Metalitz, the lawyer/lobbyist for the Washington based International Intellectual Property Alliance (“IIPA”) which has recommended Canada for the “section 301 priority watch list” for 2008, who spoke about why he believes that this is justified. He focussed, inter alia, on Canada’s lack of implementation and ratification of the 1996 WIPO Treaties and the alleged inadequacies of Canadian enforcement, particularly regarding border measures. Since the IIPA is effectively the privatized research arm of the USTR for “301" purposes, it was good to have Steve on this panel.

4. Myself, who spoke and wrote (see my paper) about why the IIPA’s and similar positions from CRIA and the American government are not justified, and why the USA should look in the mirror and find a way to put itself at or near the top of its own “priority watch list” in terms of weaknesses in its own copyright law and violation of existing treaty obligations. I have now identified 15 areas in which Canadian law is already stronger and better than American law, and which result in many cases in very large outflows of payments to American corporate interests. None of these was refuted. I also pointed out that while Israel bravely rebuts the USA’s “301" reports, Canada simply does not take them seriously and the WTO has ruled that the USA cannot take any unilateral action beyond rhetoric with respect to its “301" mechanism. Moreover, the USA is arguably in violation of the Berne Convention with respect to moral rights and other important matters, and has been adjudicated to be and clearly intends to remain in violation in respect of its notorious exemption of small business establishments from the need to pay performing rights royalties.

5. Richard Pfohl from CRIA, who reiterated CRIA’s usual positions. Since CRIA, which essentially represents the big four foreign record companies, is apparently by far the most vociferous so-called “Canadian” copyright lobbyist organization, it was useful for Richard to be on the panel.

Apart from the very frank and, frankly, very unusual remarks and paper by Justice Vancise criticizing the Federal Court of Appeal, which reviews his Copyright Board, there were no real surprises from the speakers.

There were some very worthy comments from the audience, as often happens at Fordham where the audience members are often at least as expert and engaged as the speakers and panelists.

Mario Bouchard, the General Counsel of Canada’s Copyright Board, pointed out that the fact that it has been 12 years since the WIPO treaties came about in Geneva and that Canada has still not implemented and ratified them showed that there can hardly be said to be a Canadian consensus on these issues. He also pointed out that it took the USA 102 years to join the Berne Convention, so the USA ought not be too critical about a 12 year delay on Canada’s part in respect of the 1996 WIPO treaties.

Justice Roger Hughes of the Canadian Federal Court commented from the audience in response to Steve Metalitz’s suggestion that Canada lacks adequate and effective border measures and should provide “ex officio” seizures (i.e. seizures that bypass the Courts and let customs officials seize allegedly pirated or counterfeit goods). According to Mr. Metalitz, the current system doesn’t work. Justice Hughes pointed out that this was simply wrong and that judicial orders for seizures were readily available when appropriate – and that those seeking such a change should “stop whining” and just “roll up their sleeves” in order to use the current system. He indicated that he had signed three such orders at the request of Microsoft just in the last week.

Other Notable Aspects from Fordham

Once again, Justice Rogers Hughes from Canada’s Federal Court, who was a highly renowned and experienced litigator and author in all areas of IP prior to his appointment to the Bench in 2005, joined the Fordham Faculty on patent law sessions. One hopes that he will become a “regular” at Fordham in the tradition of Lord Jacob, Sir Hugh Laddie, Lord Hoffman, Pauline Newman, Randall Rader, and other distinguished expert judges.

Speaking of which, there was a remembrance of the Rt. Hon. Lord Justice Pumfrey a popular and very expert judge from the UK, who passed away suddenly on Christmas eve last, shortly after his elevation to the Court of Appeal.

There was a remarkable panel of General Counsel organized by Brad Smith of Microsoft, an old friend and frequent presenter at Fordham long before he became GC and Senior VP of Microsoft. The panel included the GCs/VPs from Time Warner, NBC Universal, Viacom and New Corps. Such an array of distinguished GC’s on one public panel is rare, if not unique. But it’s too bad that Google and Verizon weren’t there. The panel could have been much more balanced, especially because virtually all these GCs were extolling the development of “cooperation” with ISPs in curtailing piracy and saying much the same thing as each other otherwise. The panel fuelled fears that traffic shaping and other interference with net neutrality could be much more about IP enforcement than network management.

I managed to get them rather defensive when I mentioned that traffic shaping and “cooperation” has “throttled” CBC’s innovative attempt a few days earlier to use BitTorrent for a perfectly legitimate purpose - which their own companies might want to consider at some point. Tom Rubin, another senior Microsoft lawyer, later provided a rather thoughtful comment on this in another panel indicating that ways should be found to make sure that legitimate uses of innovative technology should not be hindered.

Ironically, virtually at the same time the GC panel was going on, Comcast in the USA announced that it was backing off from its plans to throttle the internet.

(Meanwhile, Canada - which has virtually no real competition in broadband internet service - and no evident willingness on the part of part of the Government or regulators to deal with this issue - is plunging further into the abyss of throttled and inferior internet service at very high prices.)

Another high point was the appearance of Ray Beckerman, the fearless New York trial lawyer from a small firm who is fighting the RIAA litigation campaign against children, dead grandmothers and 20,000 or so other ordinary victims on many fronts and who has a fabulous blog and data base of info on the RIAA’s litigation. Hugh Hansen gave Ray more than the usual ordeal by fire, which often greets anyone at Fordham who dares to question the establishment point of view. I get it every year. But Hugh does in fact invite strong and outspoken anti-establishment points of view- unlike certain Canadian conference organizers - and I trust that Hugh’s apparent righteous indignation (with more than a little twinkle in his eye) was his way of showing his seal of approval. He only gets this excited when things become electrified and polarized - which he likes to see. Ray stood up very well and then some - and I hope he’ll be back. Here’s Ray’s take on the P2P and related issue sessions. His RIAA opponent, Kenneth Doroshow, took the perfectly absurd position that Jammie Thomas had caused untold millions of dollars of damages, even though there wasn’t a shred of evidence that anyone other than the RIAA investigator had downloaded anything from her - and that $9,250 damages per song was therefore not such a high figure. No wonder people ridicule the RIAA and that the RIAA is giving copyright as we know it a very bad name. Pam Samuelson outlined how the whole statutory damages regime could crumble on a constitutional basis, something I’ve been saying for years. I’m glad I’m in such good company.

Additional high points were the participation of Alex Macgillvary, an associate general counsel of Google who is a Canadian and a Harvard grad and a very eloquent spokesperson for balanced copyright.

An new and important voice was also added from Israel - Mr. Tamir Afori. He is the official most responsible for the new Israeli Copyright Act, which has a brilliant solution to the problem of statutory damages (no minimum - USD $28,000 max) and fair use provisions very similar to those of the USA, which the IIPA has soundly criticized since that is not a feature of US law that they wish to see emulated. Israel has also stood its ground on TPMs and WIPO ratification. Canada would do well to look more closely at the new Israeli law and to invite Mr. Afori to come to Canada and tell us more. It is refreshing to see that the Israeli government listens to its professional civil servants, more so than certain other governments.

There was much talk about fair use, and a major new study on limitations and exceptions by Bernt Hugenholtz and Ruth Okediji.

And there was the usual rich three ring or more circus of simultaneous sessions on patents, trade-marks, copyright, competition law, etc. And much, much more - too much to talk about. I’m still recovering. Fordham was, as always, an exhausting but immensely rewarding experience. You cannot learn more about IP anywhere in two days than you can at Fordham - where you will be up to date with key developments from around the world - including Canada - and you will meet many of the most influential judges, officials, lawyers and academics who actually made these developments happen.

Update - the list of faculty and some of the papers (requires a password) are now at the Fordham conference website.

HK

IIPA, DMCA, 301, and Canadian Copyright Sovereignty

Canada is now on the IIPA "priority watch list."

This is clearly a blatant bullying attempt to influence domestic Canadian copyright reform, and the allegations are very wrong - especially since Canada already provides much stronger copyright protection in many important respects than the USA.

But don't take my word for it....

Here's a brilliant take on the IIPA, DMCA and Canada, from Bill Patry. This is a MUST to read. Bill is the author of a new and very important seven volume treatise on American copyright law and has taken a great interest in Canadian issues...

As Bill reports:

So what are the IIPA’s beefs? The principal ones ostensibly concern Canada’s failure to implement the 1996 WIPO treaties. Examination of the IIPA’s 301 reports reveals, though, that what it has in mind is simply adoption of U.S. law, not amendments to Canada law that are consistent with the treaties obligations. The WIPO treaties modestly require only remedies for circumvention of Technological Protection Measures (TPMs) that involve the exercise of exclusive rights. Although the U.S. attempted to have the treaties include remedies for circumvention of access controls, other countries rejected the U.S.’s efforts. One would never know this from the IIPA’s reports, which mix the two together and lead readers to believe both are required; they are not.

...

The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the WIPO treaties is a mystery.

Read all of Bill's blog. More to come on this for sure.....

HK