Vive la France

There's an interesting decision reported on in the IHT picked up on Michael's BNA bulletin today.

It's always dangerous to rely on newspaper reports of legal cases, especially from France - but this is a reputable reporter with the very reputable IHT and it's great to have good news at this time of year.

It seems that a P2P infringement enforcement effort was blocked because the rights holder illegally breached French privacy laws to get the victim's identity by going behind the user's IP address.

This - apparantely - is a major "non, non" en France, which has tough EU directed privacy laws.

Moreover, a French government lawyer is suggesting that the rights owners could be liable for big trouble:

"The rights-holders should now understand that they cannot set up a system to identify downloaders on the Internet without proper authorization from us," said Moulin, whose organization has the ability to grant such permission. "It is important to have these protections established by a court."

Invasion of privacy carries fines of up to €300,000, or $395,000, and five years in prison, Moulin added.

Mais, oui! C'est déja vu all over again, encore une fois. This all sounds sweetly familiar. First, Canada, then the Netherlands and now France are standing up for privacy rights in these attempted invasion situations and Courts are backing up the rights of individuals not to have their privacy rights fundamentally breached without adequate evidence and sufficient oversight in the pursuit of penalizing common place activity that may actually be benefiting record companies.

When this happened in Canada in 2004 in the BMG case, in which I was very involved, Judge von Finckenstein was severely and wrongly criticized and Canada was labelled a "digital Sunni Triangle" by a reporter with the appropriately fitting surname of Bray at the Boston Globe.

It is seems now that Canada is in increasingly refined and enlightened company - and history may applaud us for leading the way.

HK

No copyright bill this year...

Today was the Ides of December. There was no copyright bill.

The House of Commons is now in recess until January 29, 2007.

So, there won't be a bill this year.

Doubtless, a lot of scenarios are being considered and reconsidered by all concerned.

HK

Canadian Documentarians on Copyright

The Documentary Organization of Canada, ("DOC") which speaks for hundreds of Canadian documentarians, issued a package in anticipation of a copyright bill before Christmas. Here is their public letter to the Ministers. There is a background white paper (by your's truly) that discusses legal issues, particularly the problems of the "clearance culture" and makes several specific recommendations. There is also a survey of DOC members on their experiences with copyright and the clearance culture.

Here's the DOC press release.

Here's the Globe and Mail story.

HK

Gowers Day

The Gowers Review is available here.

I haven't gone through it yet - but these recommendations seem interesting...

Flexibility
Recommendation 8: Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers.

Recommendation 9: Allow private copying for research to cover all forms of content. This relates to the copying, not the distribution, of media.

Recommendation 10a: Amend s.42 of the CDPA by 2008 to permit libraries to copy the master copy of all classes of work in permanent collection for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear.

Recommendation 10b: Enable libraries to format shift archival copies by 2008 to ensure records do not become obsolete.

Recommendation 11: Propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test.

Recommendation 12: Create an exception to copyright for the purpose of caricature, parody or pastiche by 2008.

Recommendation 13: Propose a provision for orphan works to the European Commission, amending Directive 2001/29/EC.

Recommendation 14a: The Patent Office should issue clear guidance on the parameters of a ‘reasonable

Recommendation 14b: The Patent Office should establish a voluntary register of copyright; either on its own, or through partnerships with database holders, by 2008.
Recommendation

15: Make it easier for users to file notice of complaints procedures relating to Digital Rights Management tools by providing an accessible web interface on the Patent Office website by 2008.

Recommendation 16: DTI should investigate the possibility of providing consumer guidance on DRM systems through a labelling convention without imposing unnecessary regulatory burdens.

Recommendation 17: Maintain policy of not extending patent rights beyond their present limits within the areas of software, business methods and genes.
search’ for orphan works, in consultation with rights holders, collecting societies, rights owners and archives, when an orphan works exception comes into being.


One thing caught my eye straight off. The limited private copying exception - despite the lack of an immediate levy requirement - is not as generous or simple as it seems, since it is only prospective. See Section 4.72. The theory seems to be that rights owners will factor the economic value of private copying into their products in the future, but can't do so for the past. The Report suggests that collecting societies pick up the pieces from the past. There has never been levy in the UK. It's not immediately apparent how this could work. Will there be some kind of levy for the legacy works? The main recommendation would seem to explicitly suggest not. So how are the collecting societies supposed to collect? What effect will the current levy review in the EU have on all of this?

Questions indeed.



HK