CBC Website - Questions for Minister Jim Prentice

There's a terrific CBC web page for the excellent program "Search Engine" with questions for Minister Prentice about the forthcoming bill - almost 100 at the moment highly articulate, mostly signed and not anonymous probing questions about DRM, levies, fair dealing, parody and all the other things that this bill is likely to either ignore or mess up badly in order to please the U.S. Government and its corporate friends.

The constant theme is the question about how this can possibly benefit Canada and Canadians.

This shows what some of us already know, that there are a lot of articulate and informed people watching this file. It's an emotional file that has lots of zeros attached to it in terms of dollar value. Many billions of dollars in fact. Not to mention cultural sovereignty and consumer rights and choice. A potent combination.

All of this could add up to votes. And lots of them, in the hands of voters who can and will read minutes from committees, blogs and other relevant stuff. And who will find each other and become empowered via the Internet.

This may not be a cakewalk for the Government. And it could have interesting consequences at election time.

HK

Sue Me, SUMI

In the true spirit of the Olympic movement, Canadian style, one of the mascots is called "Sue Me". Oops, that should be "Sumi".

Here he/she/it is.

So - see ya in VANCOUVER in 2010, Sumi and if you don't like me saying that, then Sue Me, SUMI.

We can play these cute word GAMES during the WINTER .

Can't wait to watch for all of those Gold Medals.

PS - use of a combination of the red words together as in this humble blog could lead to being sued by the fuzzy, friendly sportpersons at VANOC.

Honestly, SUMI. I'm sorry! My "criticism and parody" propensity drove me to this!

HK

Kapica on new copyright bill

Jack Kapica of the Globe and Mail weights in on the expected bill here.

HK

The Dire Dozen

How many presidents and other senior honchos of big trade associations and collectives does it take to write one op-ed purporting to refute "bloggers like Michael Geist" (hopefully, this includes me) and the increasingly noticed landmark, independent Industry Canada study on downloading and file sharing based upon an independent and fully professional survey of 2,100 Canadians?

The answer is literally a full dozen. A whole dozen VIPs comprising a Who’s Who of the entertainment and copyright collective world in Canada, including some strange bedfellows in the music industry who - when they aren’t fighting with each other at the Copyright Board or in Court or on other fronts - usually try to close ranks at copyright revision time. Which is now.

(The complete list of apparent joint authors is: David A. Basskin, Jesse Feder, Doug Frith, Graham Henderson, Jackie Hushion, André LeBel, Guy Mayson, Duncan McKie, Danielle LaBossiere Parr, Catharine Saxberg, Stephen Waddell and Carolyn Wood)

They have published an op-ed in the November 26, 2007 edition of the influential Hill Times aimed at Michael and the Industry Canada file sharing study. It’s interesting that it takes all twelve them to come up with such a an unconvincing piece of spin, doubtless aimed at persuading the PMO, the responsible ministers and committee members that stronger copyright laws (which may result in RIAA-style mass lawsuits against children and dead grandmothers and put digital locks on our culture and technology) will restore Canadian investment and innovation.

They also repeat the litany about how Canada has failed to honour its decade old WIPO "commitments." So, I will repeat that we have no such commitments, since signing a treaty is a far cry from ratification. It's the difference between dating and marriage.

So, without these stronger laws, we apparently face a bleak future of the "lost jobs, growth and prosperity we can expect as a result of reduced investment and innovation."

A dire dozen indeed.

Now, who is "escalating the rhetoric?"

BTW, the Barker study upon which this op-ed relies to a significant extent does, to its credit, contain the following disclosure in footnote 5:

This work was supported by a grant from the Canadian Recording Industry Association. The views expressed however are those of the authors. No responsibility for them should be attributed the Canadian Recording Industry

Speaking of the Hill Times, I have a modest offering of my own in the November 26, 2007 edition, to which I will link to and reproduce shortly.

HK

The Tariff 22 JR Opening Parade

The Tariff 22 Judicial Review ("JR") applications are lining up and the notices are being served. Judicial review is, in effect, an "appeal" from a tribunal decision, in this case from the Copyright Board.

So far, I've seen the JR notices from SOCAN, Shaw and CRIA.

SOCAN doesn't like the fair dealing ruling regarding previews. One hears that there was a lot of pressure on SOCAN from other content owners to try to overturn this. Many copyright owners and most collectives hate the concept of "fair dealing", which the Supreme Court of Canada has affirmed as a user's right that must be given a "large and liberal interpretation." Sadly, "fair dealing" is seen as threatening by the copyright owner/collective establishment and even some users are slow to recognize it. For example, in its widely used publication Copyright Matters!, CMEC seems to be in denial, or at least far too cautious, with respect to its interpretation of the benefits to its constituency of the landmark victory at the Supreme Court in CCH.

CRIA has raised several points that basically go to rate calculation (i.e. how to carve up the "pie", rather than than whether there ought to be a pie here in the first place).

SHAW has raised what is probably the most fundamental point in this instance - which is that:

The Board exceeded its jurisdiction and erred in law in holding that the transmission via the internet of a download of a musical work to an individual consumer is a communication to the public by telecommunication within the meaning of paragraph 3(1)(f) of the Copyright Act.

SHAW goes on to say:

More specifically, the Board exceeded its jurisdiction and erred in law in holding that:
a. the transmission of a download over the internet communicates the content of the download;
b. attempts to distinguish streams from downloads are based on technical and legal assumptions that are incorrect;
c. one or more transmissions of the same work, over the internet, by fax or otherwise, to one or more members of a public each constitute a communication to the public;
d. any file an online music service offers to consumers is communicated to the public as soon as one individual consumer “pulls” the file, by requesting that the file be delivered via the internet to that individual;
e. a communication is to the public even if recipients do not share a simultaneous (or near-simultaneous), common experience;
f. any attempt to compare delivery of music online with delivery of music on physical media is inherently flawed from a copyright perspective;
g. a person who communicates a work to a member of the public with a view to providing that person with a copy of the work commits two separate wrongs;

The issue of whether a "communication" right is entailed in a transmission to an individual is already before the Federal Court of Appeal in the Ring Tones case. I’ve mentioned before that the “communication” issue was conceded in the ring tones hearing, but the remaining objectors changed position on JR. I had originally argued at the Board against the applicability of a “communication” right, but my client decided to withdraw from that hearing.

The question of whether there is a communication right in addition to a performance right in certain circumstances is of the utmost importance in several tariffs.

We can already see the complexities arising from multiple payments to the same and/or different parties for the same transaction. This is the great folly that the Government embarked upon when, back in 1989 or so, it decided to attempt to capture virtually every “communication” and let the Board sort out the resulting redundancies and overkill.

Clearly, if the Federal Court of Appeal strikes down the “communication” theory, there will be lot of cleaning up to do at the Copyright Board. And if it does not, there will be a lot of messy tariffs with multiple payments to multiple parties for the same thing.

More JR notices are expected from the ESA (“Electronic Software Association”) and Bell Canada.

How long this will take to unfold, and what effect all of this will have on the remainder of the Tariff 22 decision yet to come are any body's guess. As I keep saying, the Tariff 22 process is already more than 12 years old. And it's not improving with age.

Instead of, as expected, inflicting unnecessary and now clearly wrong headed and obsolete DMCA legislation upon Canadians, and opening the floodgates to suing music fans and families, why doesn't the Government start to clean up the copyright environment with respect to this labyrinth of proliferating and redundant tariffs and collectives? It's a great situation for lawyers and consultants, but does very little, if anything, for most individual creators and is very costly to users who must spend enormous sums to stop the situation from getting even worse.

HK

SOCAN Tariff 22 Judicial Review

Let the litigation begin...

Again.

As I predicted, there will be judicial review of the Copyright Board's Tariff 22 decision from a month ago at the behest of one or more parties.

More details as material becomes available.

Readers will recall that this Tariff has already been to the Supreme Court of Canada once. And it's already 12 years old. But it looks like the "Single Malt Tariff", as I called it because of its age, won't be ready to be enjoyed by SOCAN for a long time to come, if ever.

HK

Access Copyright's Latest Test Case

I’ve read the Statement of Claim in Access Copyright (The Canadian Copyright Licensing Agency) v. Business Depot.

First, full disclosure. I’ve represented Business Deport in its capacity as a member of a coalition at the Copyright Board, the Federal Court of Appeal and the Supreme Court of Canada in matters relating to the private copying levy. But I’m not involved in this particular litigation.

Second, I’ve infiltrated Access Copyright as an author/member mole. I can’t wait to see my first big cheque and the resulting agony of deciding which charity may richly benefit. However, so far, in almost a year, my few communications from Access have given me no inside information on its workings. Even though it is one of the more transparent of Canadian collectives, that’s not saying much.

Tempted as I may be, I won’t comment on it specifically. Michael Geist has made a good start. I will also say generally, though, that, in a matter such as this, there are often issues of a procedural and substantive nature - sometimes very fundamental - that need to be dealt with, sooner or later. The statement of defence has not yet been filed. There are experienced counsel in place on both sides, so presumably everything will be dealt with thoroughly.

However, a little bit of general comment is in order because Access Copyright has itself thrown down the gauntlet and thrust its latest test case into the public realm with an aggressive press release.

Therefore, readers should know a little history about Access Copyright’s previous test cases.

In 1994 - 1995, Can’tCopy - oops, CanCopy - the then name of Excess - oops, Access Copyright, collaborated with the RCMP in the mercifully unsuccessful criminal persecution, oops, prosecution, of a small immigrant family owned copy shop named Laurier Office Mart here in Ottawa. In fairness to CanCopy, it seemed that it was the RCMP that initiated this hapless prosecution, but CanCopy became quite involved. I was not counsel for the excellent defence of Laurier, but I was proud to represent it at the hearings on Bill C-32. Laurier appeared at the Committee because it did not want other honest businesses to have to go through what it did. Unfortunately, the Committee proceeded to ignore Laurier’s submissions and CanCopy had its way with Parliament, as Bill C-32 as enacted attests. However, I am pleased to say that Laurier Office Mart is still thriving in the same location and providing valuable service to the University of Ottawa and is an exemplar of this country’s small business community.

Not content with this failed foray against a small, legitimate family business, CanCopy became deeply involved in an attack against the Great Library of the Law Society of Upper Canada, though the visible plaintiffs were the major law publishers. The result was not only a monumental loss for the publishers but a great victory on fair dealing and other fronts for copyright users - though sadly some of them such as CMEC still can’t or won’t recognize this, even in its flagship publication Copyright Matters! This was the landmark 2004 SCC decision in CCH v LSUC. That decision has some obvious road blocks and some less obvious land mines that Access will have to deal with now, if it can.

So, in its important test cases, Access Copyright has fundamentally failed against a small, honest family business, and the historic Great Library of the Law Society of Upper Canada. With these two strikes against it, Access is nothing if not audacious for now taking on one of the worlds biggest, most sophisticated and prestigious retail corporations. You can follow this case at the Federal Court website, here.

HK

Canada's Stronger Copyright law - a baker's dozen examples

Deirdre McMurdy has an article today on the imminent copyright bill, and the role of American Ambassador Wilkins and some of the other usual suspects.

The Ambassador is quoted as saying that "Canada is known for having the weakest copyright protection in the G8." That is nothing short of ridiculous. Worse, it is simply false and misleading.

First, the G8 includes Russia. Enough said.

Second, Canadian copyright law is MUCH stronger than US law in the following ways:

1. We have neighbouring rights. The USA doesn’t. This translates into very big bucks for record producers and performers.
2. For example, broadcasters already pay far more here than there - with about $50 million p.a. more over and above now being demanded by NRCC for rights that don't even exist in the USA.
3. We pay a fortune to SOCAN for performances in countless bars, restaurants, retail stores and other small business establishments. The USA notoriously exempts these establishments, contrary to a WTO ruling against the USA which the USA continues to flout. The USA is the most famous adjudicated current violator of international copyright law.
4. We have moral rights. The USA doesn’t.
5. Educators pay more here than in the USA. We pay far more proportionally for reprographic rights than in the USA, with far fewer exceptions for educators in our legislation. The US counterpart to Access Copyright has only a little over three times Access’s income - while normal ratios would suggest that it should have ten times the amount. Canadian educators are subject to statutory damages. American ones are not if they reasonably believe that they are engaging in fair use.
6. We have a rich blank media levy scheme that generates currently almost $40 million a year, most of which goes to the USA. The USA has nothing comparable. If CPCC gets its way, which I’m trying to prevent, we’ll have a $75 iPod “tax”, which simply couldn’t happen under US law.
7. We long ago got rid of most of our compulsory licenses, including the mechanical license for sound recordings. The USA has this and many more, which it continues to preach against to other countries.
8. We have 36 copyright collectives. The USA has less than 6.
9. We have major direct and indirect support and subsidies to collectives. The USA wouldn’t dream of it.
10. We have a full time Copyright Board with enormous policy making powers. The US mechanism is far more limited.
11. We have no parody right/exception for users, The USA does.
12. We have no distance educational exceptions. The USA does.

The problem with US copyright propaganda is that the US is a “born again” believer in copyright law, and therefore prone to overly zealous and inaccurate excessive rhetoric. Until 1976, its laws were drastically weaker than any other developed country. It didn’t even join Berne until 1989 and, even now, some question its compliance with Berne, on such issues as moral rights.

It would be very sad if our politicians were to believe the inaccurate propaganda coming mainly from the USA and CRIA. It may also be a costly political mistake to do so.

HK

Edgar Bronfman's "Epiphany" en route to Digital Damascus

While on the road to the Digital Damascus, Edgar now sayeth:

"We used to fool ourselves,' he said. "We used to think our content was perfect just exactly as it was. We expected our business would remain blissfully unaffected even as the world of interactivity, constant connection and file sharing was exploding. And of course we were wrong. How were we wrong? By standing still or moving at a glacial pace, we inadvertently went to war with consumers by denying them what they wanted and could otherwise find and as a result of course, consumers won."

(emphasis added)

Considering all the litigation, lobbying, legislation and treaties that we have seen in the past two decades, "inadvertently" is a strange choice of wording. But let's take our apologies and conversions where we can get them.

Now, if Edgar really believes this, his next step should be quite simple. He should immediately pull Warner out of all of the RIAA litigation against customers and music fans in the USA and elsewhere. Suing 12 year children and dead grandmothers hasn't worked.

Then, he can move on and perhaps be a real leader in a revitalized music industry, if such a miracle is still possible.

HK

Canadian Government's Decima P2P Survery

The background stuff from Decima, commissioned by Industry Canada, which informed the recent important P2P study can be found here.

This is a real, independent, professional survey of 2,100 Canadians. It's results are not only useful but essential to anyone interested in the area.

In the words of Industry Canada, the rationale for the survey is this:

Industry Canada has commissioned a Decima Research survey to collect data on the music purchasing and Internet peer-to-peer (P2P) file sharing activities of Canadians. The objective of the survey was to fill a major data gap in Canada on the issue of music file sharing activities of Canadians.

While there is growing literature on file sharing via P2P and its impact on pre-recorded music sales, none of the existing studies has analyzed Canadian data, let alone focused on the Canadian case. One of the reasons for this is the absence of reliable Canadian data.

We finally have some useful data, in contrast to the the spin and propaganda of the past.

HK

Industry Canada P2P Study Shows Posititve Effects on Music Biz and more...

A dynamite study just released from Industry Canada shows that P2P file sharing is good for the music business, and even more...

Here's part of the abstract:

Our review of existing econometric studies suggests that P2P file-sharing tends to decrease music purchasing. However, we find the opposite, namely that P2P filesharing tends to increase rather than decrease music purchasing.

Among Canadians who engage in P2P file-sharing, our results suggest that for every 12 P2P downloaded songs, music purchases increase by 0.44 CDs. That is, downloading the equivalent of approximately one CD increases purchasing by about half of a CD. We are unable to find evidence of any relationship between P2P filesharing and purchases of electronically-delivered music tracks (e.g., songs from iTunes). With respect to the other effects, roughly half of all P2P tracks were downloaded because individuals wanted to hear songs before buying them or because they wanted to avoid purchasing the whole bundle of songs on the associated CDs and roughly one quarter were downloaded because they were not available for purchase. Our results indicate that only the effect capturing songs downloaded because they were not available for purchase influenced music purchasing, a 1 percent increase in such downloads being associated with nearly a 4 percent increase in CD purchases.

We find evidence that purchases of other forms of entertainment such as cinema and concert tickets, and video games tend to increase with music purchases. It has been argued in the literature that the increase in the number of entertainment substitutes has led to a decline in music purchasing, but our results do not support this hypothesis. As expected, we find that reported interest in music is very strongly associated with music purchases. Finally, our results suggest that household income is not important in explaining music purchases.

(emphasis added)

The study was done by two researchers at the University of London, and can be found here.

It looks like music to our ears. I look forward to reading past the abstract...but I wanted to get this out fast...

It is entitled: The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music: A Study for Industry Canada and was written by Birgitte Andersen and Marion Frenz.

PS - update - See Jack Kapica's analysis on the politics of this...

HK