Friday, February 23, 2007

French IP Developments in English

A bright young man named Nicolas Jondet has launched a promising website to keep English speaking readers up to date on on recent developments in French Law, focusing on Intellectual Property, Technology and Medical Law.

He is a PhD candidate and research assistant with the AHRC Research Centre in Intellectual Property and Technology Law at the University of Edinburgh (UK). Here is his SSRN Profile


Wednesday, February 14, 2007

IIPA and USTR and s. 301

A few quick points about the latest fulsome report from the IIPA:

  1. The IIPA is a lobby group - basically run by a Washington law firm that lobbies the USTR on these matters. It represents big content owners in the USA. It has a lot of clout in the USTR but it is definitely not the USTR.
  2. Nobody takes the s. 301 process very seriously. Canada's "long tenure" on this list is - if anything - a badge of honour that we not only spell the word "honour" differently than the IIPA would prefer - but we are a sovereign country that does not always ask how high the IIPA and USTR would like us to jump.
  3. The IIPA report is, as usual, over the top. It relies on doubtful data such as that of BSA.
  4. Another example: the Report misstates what Canada's Supreme Court said in SOCAN v CAIP. The Court said - by way of obiter dicta only - that "notice and take down" would be more "effective" in dealing with online infringement than litigation based on the doctrine of "authorization" - which is clearly true. That, however, does not warrant the IIPA saying that the Supreme Court "recommended" "notice and take down."
  5. The most flagrant adjudicated flouter of international copyright law is the USA. The WTO has long ago finally concluded that the USA fails to provide royalties for performing rights in many instances as a result of s. 110 of its Copyright Act. This is the most serious copyright dispute to date in the WTO and the USA is clearly unwilling or unable to do anything about coming into compliance. It has bought its way out of this violation with a paltry payment fixed by arbitration of about Euro 1,219,900 per year - a fraction of what the royalties ought to be.
  6. Except for certain limited recourse available to visual artists, the USA does not provide moral rights and cleverly exempted moral rights from the dispute settlement mechanism in TRIPs. The USA does not believe in moral rights, which are a touchstone of copyright for most countries that really do respect the essence of what copyright law should be about - which is protecting artists and users, and not manipulating and monopolizing markets.
  7. Countries that live in glass houses....
Michael also has a good take on this entitled "In Good Company".


Tuesday, February 13, 2007

"Statistically Indistinguishable From Zero"

Oberholzer and Strumpf - the 2007 version of their landmark paper is updated and published in the very prestigious juried Journal of Political Economy from the University of Chicago.

My comments will follow at some point. Here's the abstract.

The Effect of File Sharing on Record Sales: An Empirical Analysis

Harvard University Business School
University of Kansas - School of Business

Journal of Political Economy, Vol. 115, pp. 1-42, February 2007

For industries ranging from software to pharmaceuticals and entertainment, there is an intense debate about the appropriate level of protection for intellectual property. The Internet provides a natural crucible to assess the implications of reduced protection because it drastically lowers the cost of copying information. In this paper, we analyze whether file sharing has reduced the legal sales of music. While this question is receiving considerable attention in academia, industry, and Congress, we are the first to study the phenomenon employing data on actual downloads of music files. We match an extensive sample of downloads to U.S. sales data for a large number of albums. To establish causality, we instrument for downloads using data on international school holidays. Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period.

(emphasis added)

And here's a link to the pre-publication version.


Thanks to Jon Newton for pointing out this publication.


Thursday, February 08, 2007

Campaigning about Camcording

The Canadian Motion Picture Distributors Association (“CMPDA”) is the trade association for Hollywood in Canada. It’s the movie counterpart to the Canadian Recording Industry Association (“CRIA”), sometimes referred to as the Canadian Recording Industry of America.

However, the CMPDA has normally been much more restrained and responsible than CRIA in its lobbying and in its descriptions of alleged inadequacies in Canadian law. And needless to say, it has not tried to make its customers into victims of mass litigation. This mirrors the situation down south, where the RIAA carries on its war against weapons of mass distribution, while the MPAA sits back wisely watching and now looks almost magisterial by comparison - especially in the aftermath of Jack (VCR = Boston Strangler) Valenti.

But now the CMPDA has launched a massive campaign about what it sees as a need to attack “camcording” in cinemas in Canada. So far so good. Nobody would seriously defend anyone’s right to camcord a whole movie in a theatre for piratical purposes - even if the harm might be somewhat overstated and the remedy sought may be somewhat overwrought. I’ll get back to that in a moment.

But unless my ears fooled me this morning when I heard the CBC news, the problem is that CMPDA is now seriously conflating this issue with the 1996 WIPO treaties and Canada’s general lack of progress, as CMPDA sees it, in copyright reform. Mr. Frith of the CMPDA suggested that Canada is somehow behind the rest of the world, WIPO-wise.

First of all, nothing in the WIPO treaties (if either applied, it would be the WIPO Copyright Treaty "WCT") has anything to do with camcording in theatres. Camcording in theatres is already illegal. Nothing in the treaties would make it more illegal. If we decide to enact a tougher and carefully conceived anti-camcording law, fine. But it would have no more to do with the WIPO treaties than a fish has to do with a bicycle.

True, the WIPO treaties deal with “making available” and communication of works such as films on the internet. But that’s got nothing to do with camcording in a cinema. And it’s highly likely that Canadian law is already more than adequate in terms of meeting the WIPO treaty requirements in these respects.

And once again, it must be pointed out that the EU is still far from ratifying the WIPO treaties. The only major countries that have ratified the WIPO treaties are the USA and Japan. (Belgium, if one considers it “major”, is said to have gotten ahead of the EU and engaged in “mistaken” premature ratification). The rest are a coalition of the billing ranging from Albania to the United Arab Emirates, virtually all of which are somehow beholden to the USA.

It does not behove the CMPDA to embark on the over-the-top rhetoric we have come to expect routinely from CRIA.

Back to camcording. If better legislation is needed, which may indeed be the case, there’s definitely a need to avoid poorly conceived legislation that might make it illegal to merely carry a recording device into a theatre, since it’s unrealistic to criminalize people for carrying cell phones and video cameras when they go the cinema. And bear in mind that virtually all cell phones can now record video and it's getting harder and harder to tell the difference between video and still cameras, which are increasingly converging technologically.

And after all, if you take the kids to the park and record them on video and then go to the movies, are you supposed to leave your expensive camcorder in the car so that it can easily get stolen? Maybe Canadian law can be improved in this area - albeit with great care. Amending the Criminal Code, which is what CMPDA wants, is not a simple thing. Nor should it be. There are real issues involving deployment of scarce police resources when we have rampant violent crimes involving guns, drugs and other obvious criminal activity. There are serious policy issues about the border between true criminal behaviour and the use of the state to enforce what may in some cases be purely or arguably a civil matter.


The Ecstasy of Influence - A Plagiarism

Here is a very well written and researched detailed essay on copyright, '"open source" culture', borrowing, stealing, love and theft, Jefferson, Disney, Girl Guides, RIAA litigation against twelve year old children and much more in the current Harper's by Jonathan Lethem.


Wednesday, February 07, 2007

A Victory for an RIAA Victim

One of the 20,000 or so victims of the RIAA war against its members' best customers has just succeeded in getting an order for attorney's fees.

This is unusual in the USA and will be an important precedent - unless the RIAA successfully appeals.

More detail here from Jon Newton.

Bravo to her attorney, Marilyn Barringer-Thomson of Oklahoma City, Oklahoma and to Ray Beckerman for his role in defending various victims and maintaining a great blog all about the war here.


Friday, February 02, 2007

Praise the Lord and Kickoff the Litigation

What could possibly be more important in the U.S. of A. than the Super Bowl and religion?

You guessed it.

Respect for copyright.

Copyright law, it seems, trumps God and gridiron.

So - the NFL has told Fall Creek Baptist Church in Indianapolis that its plans for a Super Bowl watch party in front a big screen TV would be illegal. This, and several other churches in Indiana have canceled plans for communal viewing of the Super Bowl this Sunday.

The NFL forbids such violations of creators’ rights, even where there is no charge for admission. All I can say is that America must be proud to know that mass piracy, theft and flagrant disrespect of creators’ rights are being blocked before they infect the inner sanctums of Indiana churches on Super Bowl Sunday, probably the most sacred day of the year in the USA.

It's one thing to love football, religion, thy neighbor and one's home team. But respect for copyright must always come first.