Canada, Israel, 301, Pro Patria and Pro Patry

Bill Patry has a great blog today about Israel, Canada and the U.S. "301" watch list, or "wish list", as Bill calls it. He says:

Of course, even large countries like Canada have been threatened: the U.S. is reported to have told Canada that the U.S. won’t do anything Canada wants in other areas unless Canada adheres to the WIPO treaties in the exact form that the U.S. has, and that such implementation is the highest priority in U.S.–Canada relations. That’s ridiculous bluster. I hope that the example of Israel, a much smaller and very vulnerable nation, standing up to the IIPA inspires the Canadians in drafting their anticipated copyright reform legislation. And one thing that might strengthen Canadian resolve is the experience of Israel with the migration of the watch list into an evolving wish list.

Read his whole blog. Canada should welcome the constructive attention of a great American scholar such as Bill Patry. With a few notable exceptions, Canadian copyright scholars have been too quiet for too long on too many of these issues.

HK

Israel's Clever Statutory Damages Provision

Israel has come up with an interesting and clever twist on statutory minimum damages. It allows for damages of up to approximately the equivalent of USD $27,000 - but notably has no minimum. It also specifies that several infringements that are “part of a set of activities shall be deemed as a single infringement.” This would appear to greatly reduce the risk of a perverse and absurd result such as the $227,000 jury verdict against Jamie Thomas that worked out to more than $9,000 for every song she allegedly downloaded.

The statutory damages provision affects and infects numerous areas in Canadian copyright law, even though it has actually been applied only very rarely. It has made many educators and librarians led by CMEC who are already too risk averse even more nervous about doing there jobs and perhaps contributed to their belief that they need to seek an special exception for use of the internet, which many of us believe is unnecessary and harmful. Instead, they should focus on revising the statutory damages provisions, as should many others who are rightly or wrongly fearful of their application or misapplication. In the USA, from whom we copied the idea of statutory damages, educators basically get a free pass if they can show a bona fide belief that their activity constituted fair use. No such provision exists in Canada.

Anyway, here’s the Israeli provision which will come into effect in May. Israel’s previous law had a statutory damages minimum of app. USD $2,700 - which has now been eliminated. Israel’s old law was based on the 1911 UK law, as is Canada’s. The upper limit now is fairly high and could lead to greatly disproportionate awards - but appears to have some constraints on its application. Here it is:

56. Damages without Proof of Injury
(a) Where a copyright or moral right has been infringed, the court may, at the claimant's request, award to the claimant, in respect of each infringement, damages without proof of injury, in an amount not exceeding 100,000 NIS.
(b) In awarding damages pursuant to the provisions of subparagraph (a), the court may consider, inter alia, the following considerations:
(1) The scope of the infringement;
(2) The duration during which the infringement continued;
(3) The severity of the infringement;
(4) The actual injury caused to the claimant according to the assessment of the court;
(5) The benefit derived by the defendant from the infringement, according the assessment of the court;
(6) The character of the defendant's activity;
(7) The nature of the relationship between the defendant and the claimant.
(8) Good faith of the defendant.
(c) For purposes of this paragraph infringements carried out as part of a set of activities shall be deemed as a single infringement.
(d) The Minister may, by Order, change the amount prescribed in subparagraph (a).

Canada should consider this precedent very carefully.

I thank Israeli colleagues, David Mirchin, for bringing this to my attention and Neil Wilkof for providing a copy of the unofficial translation of the new legislation some time ago and to Michael Birnhack for providing a link to an unofficial translation which is here.

HPK

Canada, Israel, DMCA and Sovereignty

Michael Geist points to a very perceptive post by Ariel Katz who is at U of T about Israel's recent new copyright law.

According to Ariel:

Israel's new act has revealed its copyright priorities. Overall, Israel decided to increase the flexibility of its copyright law and make it more open and friendlier to users, educators and innovators. It decided to reduce the ways in which copyright law can work to restrict competition. For the time being, it decided not to enact anticircumvention rules that have the potential to work in the other direction. This choice is compatible with Israel's innovative and creative record. This choice is essential for a small economy whose citizens' brain is the only natural resource. Canada should seriously consider doing the same.

(emphasis added)

At the risk of being politically incorrect, let me point out something obvious here. If any country would seem to need to be beholden to the USA, it would probably be Israel. Yet Israel fiercely asserts its independence from the USA in many ways, and wariness of the DMCA approach is apparently one of them. Mazel Tov to Israel! Doubtless, this overall spirit of independence is one of the reasons why successive American administrations seriously respect Israel.

Canada is not nearly so dependent on the USA as Israel. Canada's very survival is not at stake. (Actually, it is in the long run as a result of the kind of pro-American pandering that we may soon see on this file, but not in the immediate day to day sense that Israel faces). However, Canada has forgotten that we won the war of 1812, which I was proudly taught way back when was the only war America has ever lost. That, of course, was well before Vietnam.

So - if Israel can call time out on the DMCA and assert copyright sovereignty, what is the matter with Canada?

HK