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

Important Study on Limitations and Exceptions

Here's a major new study on limitations and exceptions by Bernt Hugenholtz and Ruth Okediji.

HK

THE CMEC RED HERRING

CMEC is spending a lot of political capital on its campaign for a special education exception for use of the internet, using reasoning that Prof. Michael Geist bluntly and succinctly describes as “utter nonsense” and which Prof. Sam Trosow has dissected in greater detail.

One wonders whether CMEC is aware of the following:

• Since 1871, there has been a firmly established doctrine of “implied license” in the law of intellectual property, which holds that when somebody has acquired something that was put on the market by the rights holder, that person can use it as they wish, absent some clearly binding agreement to the contrary. Here’s the original wording as repeated recently in the House of Lords by Lord Hoffmann:

Put shortly, the problem is to explain why, for example, a patentee cannot not complain when someone to whom he had sold the patented product then, without any further consent, uses it or disposes of it to someone else. The answer given by Lord Hatherley L.C. in the leading case of Betts v. Willmott (1871) L.R. 6 Ch. App. 239, 245 (which concerned the resale of a patented product) was that he did so by virtue of an implied licence.

"I apprehend that, inasmuch as [the patentee] has the right of vending the goods in France or Belgium or England, or in any other quarter of the globe, he transfers with the goods necessarily the licence to use them wherever the purchaser pleases. When a man has purchased an article he expects to have the control of it, and there must be some clear and explicit agreement to the contrary to justify the vendor in saying that he has not given the purchaser his licence to sell the article, or to use it wherever he pleases as against himself."

(emphasis added)

• That decision has been followed innumerable times in other IP contexts and cases. Translated into the current context, one can reasonably assume that when a newspaper or anyone else puts something on the internet without a pay wall or other TPM and especially if the site includes a “print” or “e-mail” or similar explicit invitation, the user can do just that. Everyone knows how to cut, paste and save material from the internet - and everyone who posts material knows that it can and will be used that way. With or without a “print” or “e-mail” button, it is child’s play to use the browser menu to do just that.

The CMEC position is oblivious to one of the most lucid and empowering landmark decisions of any court anywhere anytime with respect to users’ rights, which holds that” "Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained.” Our Supreme Court in the CCH v. LSUC case in the words of its Chief Justice as unanimously concurred in by her colleagues was willing to allow law firms to make copies for commercial research purposes. The legal profession routinely makes multiple copies of entire works. For example, the rules of the Supreme Court itself require 24 copies of everything in the “record.” So, why is CMEC so worried about lawsuits reaching into K-12 classrooms for activity that is clearly either explicitly or impliedly permitted by the person posting it on the internet? Why does CMEC want to gild this extraordinary lily from the Supreme Court with an unnecessary and counterproductive amendment?

How will CMEC justify to everyone else outside its tent that there is an inevitable “a contrario” implication of their amendment, i.e. that everyone not in their tent must now get ready to pay an undoubtedly eager and ready collective known as Access Copyright, which would benefit greatly from the curtailment of the CCH decision that would result from CMEC’s proposed amendment? Does CMEC not appreciate that this process will almost certainly do it no good, the general public and corporate Canada much harm, and be of great benefit to Access Copyright?

Instead of potentially harming everyone else in Canada and weakening if not undoing the CCH v. LSUC decision, why doesn’t CMEC ask simply for what the Americans have enjoyed for years - which is immunity for educators from statutory damages where there is a good faith belief in fair use (or fair dealing in Canada’s case) and an explicit “classroom” exception, such as is found in §107 of the US legislation? Here’s the US provision. If CMEC and AUCC really want more certainty, which nobody else thinks they need, they it should ask for something along the lines of the emphasized wording to be included in a list of “such as” examples of fair dealing:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Instead, the following is what we can surmise that CMEC and AUCC want to get, according to a paper recently published in (2007) 23 C.I.P.R. 1 by Wanda Noel and Steve Wills, who respectively advise CMEC and AUCC:

The education amendment would permit an educational institution or a person acting under its authority, including a student, to do the following acts in relation to all or part of a work or other subject matter that has been made publicly available on a communication network, provided the act is done in a place where a student is participating in a program of learning under the authority of an educational institution, for not-for-profit educational or training purposes, and provided that the source is mentioned, and, if given in the source, the name of the author, performer, maker, or broadcaster:
1. use a computer for reproduction, including making multiple reproductions for use in a course for instruction;
2. perform in public before an audience consisting primarily of students of the educational institution, instructors acting under the authority of the educational institution, or any person who is directly responsible for setting curriculum for the educational institution; and
3. communicate to the public by telecommunication to or from a place where a person is participating in a program of learning under the authority of an educational institution.

Ironically, if this is what CMEC is asking for, it would almost certainly end up giving educators and students far less rights than they already have. For example, as drafted this suggests that the exception doesn’t even apply to the student or teacher doing at home what they supposedly could do at the institution under the exception but which they almost certainly can do now anywhere without the exception. Go figure.

Who knows what wording we may seen in the new bill? Hopefully, nothing along the above lines.

HPK

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

More on WIPO SCCR - "Do as we say, not as we do..."

Here's the KEI report.

Here's IP-Watch.

In a nutshell, the Broadcasters' Rights proposed treaty isn't dead yet...

And the attempt by Chile and others to promote a meaningful initiative on clarifying norms on limitations and exceptions is being opposed by the usual vested interests who are saying, in effect, "do as we say, not as we do."

HPK

WIPO Copyright Meeting

Most of the Canadian delegation to the SCCR got stuck in Ottawa during the great March Break Blizzard and couldn't get to Geneva in time to deal with this meeting.

In any event, the Chairman is -- once again -- Jukka Liedes.

Looks like we haven't heard the end of the proposed broadcasters' rights treaty...

HK

The Copyright Board Says "No" to Record Industry Collectives for Interim Tariff

The Copyright Board has just delivered a very interesting decision on February 29, 2008 concerning an application for an interim tariff by the recording industry while it pursues its quest for a permanent tariff said to be worth up to $50 million a year in additional and strongly resented and resisted costs to Canadian radio stations. According to the Canadian Association of Broadcasters (“CAB”), “The record labels are demanding an additional payment close to $50 million annually for the right to make technical reproductions that are secondary to playing the music over the air – a right for which radio broadcasters already pay.”

The proposed tariff would cover the “ephemeral” recordings necessary for the operation of radio station, since the practice of live to air broadcasts with “disc jockeys” operating their own turntables has long been obsolete for a long time. Radio stations have moved on to automation and computers to store and play the music, so they can broadcast it efficiently. The record industry now wants a very substantial tariff for this practice.

This is in spite of the fact that there is an explicit exemption for the practice of using ephemeral recordings for broadcast purposes in the US legislation. The legislation that effectively deprives Canadian broadcasters of the “privilege” (as Bill Patry calls it in his treatise) or “exemption” long enjoyed by their American counterparts and which has enabled and will enable the collection of tens of millions of dollars in royalties mostly for the benefit of American rights owners was one of the more astonishing results of the backroom activity in the 1996-1997 Committee hearings on Bill C-32. The so-called “commercially available” exception to a number of apparent exceptions and exemptions, including the ephemeral rights exemption, rendered them apparently meaningless. But that is now the law in Canada, at least as the Board has construed it ... so far. The owners of copyright in “works”, i.e. songs, have been collecting millions for the “ephemeral right” since 2003. Now, the record companies want in on the action, and want about five times as much as the composers, authors and publishers have been getting.

Back to the Board decision of February 29, 2008. The Board decisively rejected an application for an “interim” tariff by the record industry, i.e. a tariff that would kick in while the hearing process and potential judicial review unfolds (which could take years). The record companies apparently claimed though their collectives (AVLA and SOPROQ) that they needed such a tariff to fund their application for a permanent tariff, that they had no revenues from other tariffs, that the interrogatory process would be “burdensome” for them (one is “shocked, shocked” to hear such as suggestion...), and a few other points that the Copyright Board clearly and bluntly rejected. Here are some excerpts from the ruling, which has a judicial-like ring to it that will be welcomed by many objectors:

[3] The application correctly states the test for
granting interim relief as the Board has
developed it. First, an interim order can be
issued as long as the main application is not
plainly without merit. The collectives meet this
branch of the test. Second, granting the
application will relieve the applicant from the
deleterious effects caused by the length of the
proceedings. We find that the collectives do not
meet this branch of the test, because the
arguments they rely on to conclude that
deleterious effects exist are irrelevant,
inapplicable to the collectives or just plain
wrong.

[4] First, the collectives argue that neither has
“tariff income” to fund the proceedings. To the
contrary, we find the collectives are quite
capable of supporting the financial burden of
these proceedings. They probably have
significant licensing income. More importantly,
and contrary to what they state, they are not
without “tariff income”. They jointly receive
millions of dollars each year from the
Neighbouring Rights Collective of Canada
(NRCC) on account of the maker’s share of
royalties paid pursuant to section 19 of the Act.
They also receive 15 per cent of the private
copying levies, which also amounts to millions
of dollars. Other collectives use their other
incomes as a matter of course to subsidize
proceedings before the Board.


[5] Second, the collectives note that
interrogatories can be burdensome. That does
not help them. The interrogatory process
generally is of primary benefit to collectives;
they are more interested (and justified) in
seeking to understand the licensees’ business
model than the licensees are in seeking to
understand the collectives’ business practices.
To the collectives, the availability of the
interrogatory process is an advantage, not an
inconvenience.

[6] Third, the fact that tariffs of first impression
often are judicially reviewed is irrelevant at
best. A certified tariff is enforceable even when
challenged, unless the Federal Court of Appeal
suspends its application.

...

[11] Two points the collectives raised in their
reply of December 28, 2007 merit attention.
First, they state that the application for an
interim tariff should be summarily granted
because the CAB failed to show that the
application does not meet the test for granting
interim relief. That is looking at the issue from
the wrong end of the telescope. The person who
applies for interim relief bears the burden to
show that relief is required, whether or not
anyone else objects to the relief being granted.
Second, contrary to what the collectives state,
neither AVLA nor SOPROQ “are obliged to
pursue proceedings before the Copyright Board
in order to collectively administer their rights.”
These collectives are subject to the general
regime. They are entitled to pursue licensing
deals with individual users. Indeed, in the
general regime, such agreements trump the
tariff.

(emphasis added)

I cannot help but note that this is a little breath of fresh air as we await the end an extraordinarily long and drearily depressing winter in Ottawa...

HK

Canadian Copyright Collectives and the Copyright Board

I’ve just done a paper and given a CLE talk for the Law Society of Upper Canada entitled CANADIAN COPYRIGHT COLLECTIVES AND THE COPYRIGHT BOARD: A SNAP SHOT IN 2008. Here’s a copy.

Here’s my bottom line:

CONCLUSIONS

Canada’s system of collective administration of copyright has both many strengths and weaknesses. This is also the case in most other countries. Improvements are possible and necessary. Some of these can come from collectives themselves. Others will need to come from the Copyright Board, or the Government itself in the form of regulation or legislation.

Canada’s Copyright Board plays a greater role in the collective administration of copyright than comparable tribunals in Australia, the USA, UK and other common law countries, and probably all other major developed countries. It appears to have more full time members and staff than its counterparts in any comparable country. It has a long and rich history of which it can mostly be very proud. However, that is not to say that improvements cannot be made. This appears to be recognized.

Canada’s Federal Court of Appeal, and on occasion the Supreme Court of Canada, have played a vital role in reviewing all of this activity and in ensuring that the public interest element inherent in copyright law is kept in mind.

Much more work needs to be done. Perhaps it is time for another commission along the lines of those chaired by Justice Parker and Justice Ilsley to look at all of this along with other copyright issues more fully and in the interests of the Canadian public.

HK

More on Euro-Excellence v. Kraft

I’ve just done a short talk on the Supreme Court of Canada’s important Kraft decision (in which I was involved) for a LSUC CLE programme on February 28, 2008 in Toronto. Here’s my brief paper.

Here’s a bit of the bottom line in that paper.

The doors have now been opened to new issues such as copyright abuse or misuse, or the argument that copyright law cannot be used to limit free trade in articles not protected by copyright. Other arguments are also open. Current and future potential plaintiffs contemplating the use of copyright law to bar parallel imports of consumer products not protected by copyright may wish to be careful about what they wish for.

HK

Professor Lessig Won't Go To Washington

Professor Lessig has, not surprisingly, decided not to run from Congress.

It's hard to stop a train, especially when the anointed rival actually has a real train named after her.

HK

"Debunking the Song Tax"

The National Post has another blunt editorial (at least its third this year) on copyright matters called "Debunking the Song Tax" in today's paper.

Here's the bottom line, according to the paper:

-How is the money to be distributed? SAC hallucinates an ultra-powerful, bias-free "collective" that "would track internet and wireless file sharing activity on a census basis. Virtually all sharing on the internet and wireless devices would be tracked," they promise, and "Creators and rights-holders will be paid with a level of speed and accuracy never before possible." Will this happen before or after pigs fly? And are you comfortable letting Eddie Schwartz and Randy Bachman monitor all the filesharing activity on your PC, or would you immediately click on the encryption option that peer-to-peer sharing applications already offer as a matter of course?

We know what choice we would make.

HK

Broadcasters' Rights Redux - The Return of the Undead?

Never say never. Look at whassup in the Council of Europe.

Just in time for the forthcoming WIPO SCCR meeting coming up March 10-12, 2008 in Geneva.

Is this the Return of the Undead?

HK

The Copyright of Politics

Hillary Clinton has desperately and wrongly (see Bill Patry) accused Obama of plagiarism.

Potentially much more ironic and seriously serious is the accusation that the Conservative Party of Canada and Minister Prentice - the presumed sponsor of the presumed new copyright bill - have infringed Warner/Chappell's copyright in a recent slick political attack ad video:

As the Harper government prepares to introduce tougher new copyright rules, the Conservative party is being accused of using the theme song from the reality TV show The Apprentice without permission of the record company that owns it.

See Ottawa Citizen, Feb. 22, 2008.

Canadian law also provides "moral rights" to the composer and lyricist, which result in their permission being required if their work is used "in association with a product, service, cause or institution."

Are the next US and Canadian elections going to be about political piracy?

That could be entertaining and good for copyright lawyers. Let us hope...

Let's hear it for Copyright Awareness.

HK

Copyright Board and CAB - Once More with Feeling!

The Copyright Board has on February 22, 2008 now reiterated its conclusion from its decision October 14, 2005 to grant an increase of 32% to SOCAN for its commercial radio tariff and a corresponding increase to NRCC. The Board had been told by the Federal Court of Appeal that it had to provide adequate reasons for its original decision. I discussed this at some length on October 23, 2006 here.

The Board's new decision, which comes almost four years after the hearing in May 2004, comes to the same conclusion but for different reasons. A quick read indicates that it mainly adopts the CAB's economic expert's methodology "with several modifications", with the resulting arithmetic working against the CAB - and with lots of detail.

For fans of administrative law and "standard of review", the FCA's October 19, 2006 decision, which took only a week to issue and which was written by Mr. Justice John Evans, who is not a only a judge of the Federal Court of Appeal but is the co-author of the leading Canadian treatise on administrative law stated as follow:

[16] The Board is entitled to the greatest deference in the exercise of its discretion to set a rate and, accordingly, the discretionary decisions lying at the heart of its expertise are reviewable only for patent unreasonableness. However. it must explain the basis of its decisions in a manner that enables the Court on Judicial review to determine on the basis of the reasons, read in context, whether the decision was rationally supportable. When an administrative tribunal's decision is reviewable on a standard of reasonableness, its reasons are the central focus of a judicial review: Law Society at New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 see 20, at paras. 48-9, 54-55.

[17] In my view it was not sufficient in the circumstances of this case for the Board to justify its quantification of the undervaluation by merely referring to the evidence taken as a whole. It is not enough to say in effect: "We are the experts. This is the figure: trust us." The Board's reasons on this issue served neither to facilitate a meaningful judicial review, nor to provide future guidance for regulatees.
(Emphasis added)

HK

Michael Geist's EFF Award

Congratulations to Michael Geist on his EFF award.

Michael has done a superb job of teaching, challenging and pushing the envelope on issues such as copyright law, privacy, net neutrality and, above all, the right of Canadians to determine what’s best for our own sovereign country on these and other important issues. And he has taken this to a world stage.

I hope that this award serves as an example to other academics in Canada to speak out on important issues. That is their responsibility and should be the quid pro quo for their tenure. Too many Canadian academics have been too silent for too long, perhaps because they have been too comfortable.

Not Michael.

Michael has been threatened with litigation by the Hon. Sarmite Bulte:

"I am not going to sue him before the election but dammit, watch me after the election."

An influential lobby group went after him for his Toronto Star column:

"It seemed clear that the only outcome that would satisfy [CRIA] was getting rid of Geist, which wasn't even remotely in the cards."

And he has faced other confrontations and attacks from powerful forces on Bay Street and elsewhere.

Bravo, Michael. Canada needs you.

HK

Reefer Madness 2008

Here's about two minutes of a leaked RIAA training video. It's too over the top to have been spoofied. According to its host, www.gizmodo.com :

This is a leaked official RIAA training video produced with the National District Attorneys Association telling U.S. prosecutors why they should bust music pirates: Because it'll lead them to "everything from handguns to large quantities of cocaine [and] marijuana," not to mention terrorists and murderers!

The whole video is over 60 minutes long—these are just two of the more outrageous minutes with Jim Dedman, from the NDAA, interviewing Deborah Robinson and Frank Walters from the RIAA about the benefits of going SWAT on music pirates. At one point, Walters says the piracy/drug connection can be so bad that you get asked "When you buy a CD, would you like it with or without—the with is enclosing a piece of crack or whatever the case may be."

Nobody condones commercial piracy - but linking illicit CDs to serious drug trafficking, gun crimes, murder and terrorism may be a trifle hyperbolic.

Those of us of certain age may recall a not so great American film called Reefer Madness.

HK

Professsor Lessig Goes to Washington?

Will Larry Lessig run for Congress?

Maybe.

Here's his site.

Take a few minutes to watch his video. Very interesting indeed.

And potentially very important.

Could this be a real life remake/sequel to the very great 1939 Frank Capra film starring Jimmy Stewart "Mr. Smith Goes to Washington"?

Here are some clips:

http://youtube.com/watch?v=de6f-ij81oQ

http://youtube.com/watch?v=p1d19wV1GZQ

http://youtube.com/watch?v=zWyEc7FAMTg


HK

Minutes of the Heritiage Committee re Proposed Special Joint Committee

The Minutes of the Heritage Committee meeting in which the Committee indicated its desire to get involved in the proposed copyright bill and to have it referred before second reading reveal some interesting remarks by the Hon.Hedy Fry, whose motion led to the Report:

I think we have heard repeatedly on this committee that one of the greatest challenges to copyright is the advent of digital media, and that this in fact seems totally insurmountable and uncontrollable because people are downloading intellectual property of creators and artists on iPods and everything they can. That has left us with a huge copyright vacuum.

I think the way Industry Canada may look at this would be very different from the way Heritage Canada would look at this. I believe the things that concern us at Heritage Canada and this committee here are the issues of pure intellectual property. When someone uses their intellectual property to invent a new piece of technology or widget, patent laws and all of those other things can come into place, because you can see the thing, hold it, feel it, touch it—like the BlackBerry, for instance. When you write a play or a song and someone picks it up on an iPod or on whatever and there's piracy going on and all of those things, that is really harming the creator, the artist. Therefore, I think we need to be at that table. We need to inject this perspective into any discussion on any copyright legislation.

It's most important, especially since we know that the CRTC has given an indication that they don't intend to deal with anything to do with the Broadcasting Act or copyright for the next 10 years. We are already the only one of the industrialized nations that doesn't have a copyright act that deals with these issues.

(emphasis added)

Having now seen the above, the idea of a Special Joint Committee becomes rather problematic. If Minister Prentice is listening to the advice he is getting from those who believe in balanced copyright, especially the recently formed Business Coalition for Balanced Copyright ("BCBC") and his bill, if and when it comes, truly reflects these concerns, it should be passed quickly and could mark a major positive achievement for Canada. However, the proposed Special Joint Committee could slow this down or even stop such a good bill from going through, if Mme Fry's frankly reckless rhetoric represents the prevailing view of the Heritage Committee.

My earlier (November 20, 2006) potential sympathy for a Special Joint Committee was predicated on the likelihood that the Bill would wind up before the Heritage Committee alone, a troubling prospect at that time. As I said on November 20, 2006:

If there is a copyright bill, and if it gets as far as committee hearings, it is imperative that it be considered by a balanced committee that represents the mandate of both of the sponsoring departments. The Heritage Committee alone cannot be entrusted alone with this task. Even with Mme Bulte gone, the institutional structure militates against both actual and apparent balance in the hands of that Committee alone. Even before Bulte, that Committee often gave the appearance of imbalance and of being too prone to influence by the Department of Canadian Heritage and the usual lobbying suspects. Indeed, the appearance probably reflected the reality. Clifford Lincoln may have appeared more balanced than Mme Bulte, but the result too often left much to be desired.

If Ms. Fry represents anything like the current consensus of the Heritage Committee, then a Special Joint Committee is not likely a good idea - at least for those who believe in a balanced copyright policy informed by facts and sound reasoning.

One also hopes that she is not speaking for the Liberal party - whose views on the bill could be crucial in terms of whether it stands a chance of being passed or not before the next election. Ms. Fry has been something of a controversial loose canon in the past with her comments in the House of Commons on cross burnings on the lawns of Prince George BC.

HK

Politics More than Usual on the Hill

The Standing Committee on Heritage Committee has just released an interesting Report calling for the following:

The Standing Committee on Canadian Heritage recommends that the Government Bill entitled “An Act to amend the Copyright Act” for which notice was given on December 7th 2007, once introduced and read a first time, be referred to a Special Joint Committee made up of members or associate members of the Standing Committee of Canadian Heritage and of the Standing Committee on Industry, Science and Technology before second reading.

(emphasis added)

This means two important things:

1. The Heritage Committee wants a piece of the action.
2. The Heritage Committee wants to see the referral of the Bill before second reading, which is unusual, and would allow for major additions and alterations to the bill that would otherwise not be possible from a procedural standpoint.

This could mean that, in principle, "anything goes" with the bill. In such as case, the result would be quite unpredictable, but the lobbying would be predictably formidable, especially on the part of those who feel their issue was left out.

I've written before about the potential wisdom of having a special joint committee (rather than the Heritage Committee alone), and as well the need for balanced expertise - i.e. two or preferably three outside counsel to advise the committee members. This will be all the more important if the bill becomes a "free for all" as a result of referral after first reading.

HK

"More Than a Feelling" about Less Than Adequate Moral Rights in the USA

Here's an example of why the USA needs moral rights in its copyright law. According to CTV:

The chief songwriter and founder of the band Boston has more than a feeling that he's being ripped off by Mike Huckabee.

In a letter to the Republican presidential hopeful, Tom Scholz complains that Huckabee is using his 1970s smash hit song "More Than a Feeling" without his permission. A former member of the band, Barry Goudreau, has appeared with Huckabee at campaign events, and they have played the song with Huckabee's band, Capitol Offense.

Canadian law has real moral rights protection and prevents a work from being " used in association with a product, service, cause or institution" without permission. See s. 28.2 of the Canadian Copyright Act.

Maybe somebody should put the USA on a priority watch list. It's lack of adequate moral right protection puts it out of compliance with the Berne Convention, although it cleverly managed to make that a non-issue for dispute purposes in TRIPS.

And that's not the only reason. I'll get around to others.

HK