Folie à deux?

It looks like some folks in Australia is are having similar delusions to those of some Canadians - namely that schools should actually pay a copyright collective for using free stuff on the internet. Thanks, Cory, for noting this and for a trenchant comment on the issue as it stands there and in Canada.

What's next? A law prohibiting the sharing of newspapers - or a tariff on newsprint because - horror of horrors - some people actually do share newspapers or recklessly allow used ones to be read by free loading third parties who have no respect for copyright? Or a tariff or prohibition on the sale of used books and CDs? Don't laugh - the latter has been closer than one might wish to think.

Let us only hope that our friends in Oz did not catch this folly from Canada. As to Canada and the educators' tepid and troublesome response to date, I'll have more to say anon but assuredly not anonymously.

HPK

CRIA Spinning on the WIPO Treaties

Get ready for more spin about Canada and the WIPO Treaties as we approach Canada Music Week and the CRIA machine goes into high gear:

A current announcement for a Canada Music Week panel on March 3, 2006 in Toronto contains the following misleading statements:

In 1997 Canada placed its signature on two International treaties designed to update copyright laws in a way that would allow the digital marketplace to flourish. All of Canada's major trading partners joined Canada in signing the Treaty. Almost 9 years later, and unlike those same trading partners, Canada has yet to enact legislation. Canada finds itself an analogue island - increasingly isolated in a digital ocean.

In June of 2006 [sic] the government of Canada finally acted. Legislation was tabled purportedly implemented [sic] the treaties. Expectations ran high among artists and labels. Disappointment was even keener. Bowing to pressure from the anti-copyright lobby, the government drafted legislation that was widely viewed as the weakest protection for copyright in the world. Opponents of copyright reform had erroneously, but successfully, argued that copyright reform in other territories had been a disaster, inhibiting the free flow of ideas, endangering the privacy rights and damaging technological innovation.

(emphasis added)

Reality check:

Canada joined other countries in signing, not vice versa. Signing a treaty is to ratification about the same thing as dating is to marriage. The former doesn’t necessarily lead to the latter.

As to ratification, which is what CRIA wants Canada to do, the truth of the matter can be found at the WIPO website where an up to date list of countries that have actually ratified the WCT and WPPT can be found. Ratification is where the rubber actually hits the road.

The only two countries that can reasonably be regarded as being “Canada’s major trading partners” are the USA and Japan. OK – one can quibble about Mexico, which is so eager to please their neighbour to the north that it has leapt to a life +100 year term of copyright protection. One can only wonder why and how that deal was arranged. Mexico it is part of the NAFTA deal that is the legacy of Reagan + Mulroney.

Even if Mexico can be regarded as a major trading partner due to NAFTA, it’s hardly a major country. Its influence and economic clout outside of NAFTA are quite minor and it has virtually no influence in international copyright circles. The rest of the list ranges from Albania to the United Arab Emirates, in other words the current “coalition of the billing”, all of which are beholden to the USA for various reasons best known to themselves.

The EU is way behind its own schedule and controversy is increasing within on implementation and ratification. In fact, France appears to have taken an aggressive path towards legalizing downloading and file sharing.

As for Canada’s current laws or even the now defunct Bill C-60 being weak, that’s nonsense. Canada provides far greater protection to the music industry in many respects than does the USA. For example:

• Canada’s neighbouring rights regime gives tariff payments for ordinary broadcasts to record companies and performers that are more or less equal to those paid to composers. In the US, there are no such payments.
• Canada provides a much longer period of protection to many American composers and music publishers than does the USA. For example, many of Irving Berlin’s early works will generate payments in Canada until 2039, even though his pre 1923 work fell into the public domain in the USA ages ago
• The USA didn’t provide copyright protection for sound recordings until 1976. Canada has done this since 1924.
• Canada has moral rights for composers and proposed them for performers in Bill C-60. The USA does not provide moral rights for either category – and there is deeply ingrained resistance to ever recognizing the concept explicitly in copyright law if it could affect the music or film industries.
• And the USA has its notorious work for hire doctrine, which treats performing musicians as the hired help unless and until they achieve star status.
• Canada has what was at the time of the last Copyright Board hearing one of the world's richest - possibly the richest - music levy schemes on blank media in both relative and absolute terms. At that time, Canada had only a 2.4% share of the world's music publishing business - less even than the Netherlands and Spain and a fraction of that of that of the UK, France and Germany. The levies have provided an estimated $160 million to date to the music industry, a very large chunk of which will find its way back to the USA, which has no remotely comparable regime. This is the levy scheme that the music industry wants to see subject to national treatment and thereby effectively doubled, with virtually all of the extra money by definition going to American and European interests.

So – let’s not get too carried away by the CRIA spin about the WIPO treaties. The real reasons why the so-called “Canadian” Recording Industry Association (“CRIA”) wants these treaties ratified according to their definition of adequate implementation probably include:

1. They want to get their hands on the enormous amount of money that would result from the doubling of the private copying levies as a result of the national treatment requirements of the WPPT.
2. The want legislative clout for aggressive TPM and DRM technologies – so that exercises such as the SONY Rootkit deployment could be blessed by law and it would be then be illegal to try to undo the resulting harm.
3. They want “access controls” to be spelled out in law, so that it would be illegal to circumvent TPM or DRM schemes to engage even in insubstantial copying, fair dealing or access to the public domain – or even a bypass of regional coding for legit DVDs bought abroad.
4. They want an aggressive “notice and take down” regime – that would result in easy take down of supposedly infringing material on the internet, essentially without recourse, merely by sending an automated electronic message to an ISP.

Of course, the treaties have some useful concepts and are by no means all bad. Much good faith effort went into them. The problem is that CRIA’s over the top definition of compliance in the American DMCA image is making them look unattractive to many.

Maybe that’s the real problem. Once again, CRIA should be careful what it wishes for. For example, their recent wish to make copyright an election issue probably cost their favourite MP, Sam Bulte, her seat.

Attempting to raise the profile of the WIPO treaties issue may also well backfire. There are good reasons why Canada has not rushed to ratification in the DMCA mode expected by CRIA. The new Government may not wish to entertain the inevitable controversy that the CRIA campaign will generate.

Besides, CRIA and IFPI stats show that Canada is doing very well indeed in music industry sales and revenues compared to the other countries that we supposedly lag behind in terms of legislation. Sometimes, though not in men’s Olympic hockey, slow and steady wins the race….

HPK

Excess in Proposed WIPO "xcasting" treaties

Sceptics about the proposed broadcasting and webcasting rights treaty being pushed at WIPO have much to worry about in terms of hopefully unintended but clearly foreseeable negative consequences for users' rights involving insubstantial copying, fair use and fair dealing, access to orphan works, of course the public domain.

The proposed treaties might make more sense to those who have concerns for these issues if those advocating for the treaties would come out and expressly disclaim any interest in preventing any acts in relation to the underlying works taken alone (i.e. without commentary or other copyrightable added value) if the broadcaster or webcaster doesn't own copyright in those works.

A museum does not own any copyright in a 500 year old painting. Publishing a reproduction of it, no matter how "accurate", should not give it any rights - as the American Bridgeman v. Corel decision states. There are lots of ways to "monetize" the publication of catalogues, post cards, etc. without effectively asserting copyright in the underlying PD works.

A convincing case has not been made that broadcasters or webcasters need to be able to assert rights in underlying works that are either in the PD or are orphaned. Simply making them available, by broadcasting, communicating, distribution or whatever term you like without more shouldn't create obstacles to access and entry into the PD.

The treaty proposals appear to go much farther than necessary to combat misappropriation or theft of signals, which is a valid concern.

The concerns of the user community are also heightened by the increasing incidence of convergence of broadcasters' and webcasters' interests with copyright ownership interests, so that control of the "master" or readily accessible copies may be in the hands of the broadcaster/webcaster - who will be tempted to use the new found rights to strategically and effectively elongate and perhaps even perpetuate expired underlying rights.

Actually, the issues may be even more serious from a practical standpoint in respect of possible over layering or over restriction of rights by webcasters as compared to broadcasters, if only because it's easier to imagine how webcasters could deploy DRM or TPM or otherwise enforce their proposed rights. That’s because webcasting is digital. Traditional broadcasting, however, is still analog.

It's going to be a while before analog broadcasting disappears and the analog hole will hopefully be around for some time - so that the public can continue to benefit from the PD, fair use and their other rights.

And by the way, Canada has potentially much to contribute on this issue at WIPO - even if only to help explain the issues to many countries that clearly don't understand them. Why are we sending undoubtedly well informed, well prepared and relatively large delegations who are virtually silent on the official record when there is so much that needs to be asked and said?

There is a lot at stake and Canada has a lot of responsibility - not only to its corporate stakeholders but to its citizens - and to other countries who have looked to Canada for leadership in the past and in other fora. Silence, in this instance, amounts to acquiescence to a troubled treaty proposal with profound potential effect concerning which there is little understanding.

HPK

More on Caution in the Classroom

Michael Geist has contrasted the problems I have outlined in connection with "Copyrgiht Matters!" with the much more adventuresome and innovative spirit of at least some American educators - as exemplified by the University of Michigan's digitization project partnership with Google.

Excess Caution

Another example of Excess Copyright does not come from the collectives’ side but rather from users. It is Excess Caution in copyright - most obviously evident in Canada's classrooms.

The educational community in Canada is perhaps the best (or worst) example of excess caution in copyright matters. Take for example the widely read publication entitled COPYRIGHT MATTERS! published by the Council of Ministers of Education, Canada, the Canadian School Boards Association, and the Canadian Teachers’ Federation. It is intended for K-12 teachers and their school boards.

It purports to set out basic copyright “rules”, many of which are arguably overly cautious and go beyond any caution that is required by law. The authors state that “This publication is a starting point in increasing awareness of your rights and obligations, as a teacher, in selecting and using copyrighted materials in your educational institution.”

The main trouble with the publication is that it is a litany of excess caution about what teachers and students can’t do (remember “Can’t Copy”) and is a constant and non-critical pointer to Access Copyright’s view of the world and referrals to several other content owner and collective friendly publications and websites. Not a word, for example, about CIPPIC’s excellent resource site or the fabulous EFF and other American resource sites on fair use, such as the one at Stanford.

Most seriously conspicuous by its absence - even though the publication bears a copyright notice of 2005 and is in its second edition - is the lack of any reference to or even apparent recognition of the landmark March 4, 2004 Supreme Court of Canada (“SCC”) decision in CCH v. Law Society of Upper Canada that considerably expanded the scope of fair dealing.

For example the CCH decision states at para. 56:

Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. As the passage from Hubbard indicates, the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.

(Emphasis added)

Instead, COPYRIGHT MATTERS! advises that one can:

“make a single copy of works, such as articles or photographs, protected by copyright for private study, research, criticism, review, or news reporting under the sections of the Copyright Act that allow such uses of copyright material — referred to as "fair dealing"

(Emphasis added)

But the SCC is far from categorical about the “single copy” requirement. How can one publish a critique of a photograph if only a single copy can be made, as the Court points out above citing David Vaver? The Court does state that:

In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair.

(emphasis added)

Multiple copies may indeed be illegal in some circumstances: “If multiple copies of works are being widely distributed, this will tend to be unfair”. But note the words “widely” & “tend”. This is hardly categorical. There is vast chasm between the encouraging openness of the SCC decision and the categorical “single copy” caveat and so-called “rule” in COPYRIGHT MATTERS!.

COPYRIGHT MATTERS! also fails to point out that many students can each make their own single copies for research purposes and that this would almost certainly be well within the CCH ruling.

Another example. COPYRIGHT MATTERS! also advises that one can:

copy or perform works whose author(s) died more than 50 years ago (but not translations or annotations of such works)

Does this mean that one can’t copy or perform a public domain translation of Dante or a public domain annotation of Shakespeare? Or that one can’t perform a public domain annotated edition of Mozart? The prohibition on translations and annotations is not qualified. Also, it is by no means clear and frankly unlikely that one needs any permission to “perform” a public domain work from an annotated edition in Canada, even if the annotations are still protected by copyright. Assuming that the original work has not been altered or adapted, it is the work that is being performed - not the annotations which usually serve to mainly to explain and comment on the work and which often have a very “thin”, if any, copyright element in themselves.

One of the most problematic and excessively cautious passages in COPYRIGHT MATTERS! concerns what teachers and students can’t copy from the internet. The pamphlet states:

Most material available on the Internet is protected by copyright. This includes text (e.g., postings to newsgroups, e-mail messages), images, photographs, music, video clips, and computer software. Under the Copyright Act, reproduction and unauthorized use
of a protected work are currently infringements. Therefore, reproduction of any work or a substantial part of any work on the Internet would infringe copyright unless you have the permission of the owner.

(emphasis added)

The emphasized portion is a pretty categorical statement. Any teacher reading this passage is going to be afraid to use the internet in the way that virtually all of those who post freely available material expect their material to be used.

Does this passage mean that one needs the permission of Bell Globemedia Publishing Inc. to copy an article on the Globe and Mail website that is freely available, (i.e. not behind their pay wall) - and contains the ubiquitous “print” and “e-mail” buttons for those who can’t figure out how to make their browser do the same function? I would be extraordinarily surprised if the owners of the Globe and Mail (or a collective purportedly acting on its behalf) were to sue anyone anywhere for making a reproduction - or even several reproductions for teaching or research purposes - of an article not locked behind a pay wall. The Globe would probably be flabbergasted to receive a specific request for permission to print one of their freely available online articles. If the Globe went to court, it would have to deal with the ancient and important doctrine of “implied rights” in IP law, which confers on legitimate users the right to use IP protected products in the manner in which they are intended to be used without specific further permission.

I will have more to say about the great “publicly available material” debate in another blog. But in the meantime, I question whether some of the oversimplified and even simplistic pronouncements in COPYRIGHT MATTERS! are really serving the best interests of our teachers and students who presumably don’t want to wait for “permission of the owner” while the rest of the world and their counterparts in other countries zoom on by.

Excess Caution is just as counterproductive as Excess Copyright. It is easy to be too cautious. True, people don’t often get sued for being too cautious - at least not yet. But excess caution is getting in the way of teaching, learning and research in Canada.

The clearance culture of caution is seemingly oblivious to the doctrine of users’ rights - as proclaimed very explicitly by no less that the Supreme Court of Canada who said in CCH:

Under s. 29 of the Copyright Act, fair dealing for the purpose of research or private study does not infringe copyright. "Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts. Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29.

(Emphasis added)

If users in commercial situations such as the lawyers requesting copies from the library in CCH have users’ rights, then surely teachers and students in our publicly funded educational institutions deserve no less and should be advised accordingly.

It is crucial for Canadians to realize that the fair use doctrine of American copyright law - which is one of its best features - inherently involves pushing the envelope and fighting the good fight in court when necessary. The publicly funded educational institutions in Canada have the resources to do this. The issue is whether they have the will and whether they are making fully informed choices in all cases. Even on the lobbying front, where costs and risks are much less than in litigation, Canadian educational issues have consistently asked for very little and received, unsurprisingly, even less. That’s excessive caution. It’s one thing to have “respect for copyright agreements and the copyright laws that govern our country”. But that doesn’t require the voluntary imposition and exercise of excessive caution on the tax payer funded users in the educational system.

It's the job of educators to teach. Not to be copyright cops. There are already plenty of those to go around - and they do. With the advantages of Canada's extraordinarily collective-friendly legislation and governance, and even outright government subsidies.

Excess caution is not “how the west was won”. Excess caution won’t get Canada ahead on the road to competitiveness. Schools in the China, India, and even the USA are assuredly not excessively cautious about copyright matters. They don’t have an organization such as Access Copyright and their educational sectors push for the ability to teach and do research and do not function as proxies for copyright collectives - which are fewer and weaker in these far more ambitious countries.

There are risks in education. Both teachers and students can be struck by lightning or hit by a car while walking to school. But some risks are minimal, worth taking and must be taken. Nobody can guarantee that a school board won’t get sued one day. But Access Copyright is likely to lay low for a long while after CCH and is unlikely to risk another set back of such magnitude. Access Copyright (then called CanCopy) was heavily behind the CCH case. Going after the legal profession was one thing - and this backfired badly in a case that actually had a reasonable shot at success (except regarding copyright in the actual legal decisions themselves). The optics of going after school children would be something else. Probably even too much for Access Copyright.

For anyone familiar with American copyright law and collective overreach, just remember this. ASCAP and the Girl Guides. Enough said.

The main author of COPYRIGHT MATTERS! is Ms. Wanda Noel. She has had considerable experience in copyright matters. For example, she was counsel to the Parliamentary Committee that made a number of key collective-friendly changes to Bill C-32 in 1997. She was also the consultant to the Department of Canadian Heritage for whom she wrote the report and conducted the limited consultation that led to the ultimately discarded copyright term extension provisions in the 2003 “Lucy Maude Montgomery Act”. For many successive years, she was a consultant to the former Department of Communications (the predecessor the Department of Canadian Heritage), during which time her client was a successful champion of increased rights for creators and collectives. She was also counsel to the Parliamentary Committee that in 1985 produced the “Charter of Rights for Creators”, an influential document that advocated far reaching new pro-creator and pro-collective rights.

HK