End of Music DRM in Sight

Warner has now dumped DRM and made its entire catalog available DRM free on Amazon. Smart move, Edgar. See the very cutting edge Red Herring report:

"Give it four more days and we can finally say that 'DRM is so 2007,'" said Michael Goodman, an analyst with Yankee Group. "Music history will document the transformation from DRMed music to DRM-free music as occurring in 2007. I can't imagine anybody doing a DRM deal in 2008."

The article goes on to state:

The deal further marks the death knell for digital rights management, or DRM, a controversial technology that restricts the usage of music purchased online. New York City-based WMG and Sony BMG were the last two of the Big Four labels to hold out on DRM-free downloads.

So - that leaves only SONY BMG (who brought us the "rootkit" DRM disaster) as the last of the big four holdouts so doggedly represented by the RIAA and the CRIA.

And it suggests yet again the necessity of asking why any government would now consider providing protection for DRM, rather than from it. Maybe the best thing now would be strike a Canadian balance and just forget it. DRM's time as a legislative issue appears to have already come and gone.

HK

Jeremy's "Lose Weight" resolution - Oz Not an Example

As promised, Jeremy de Beer has outlined his second New Year's resolution....to lose copyright weight, so to speak.

He points out that Australia now has a 645 page - yes 645 page - long Copyright Act, as a direct result of American pressure to ratify the WIPO treaties in the DMCA mode.

I would point out that Australia, which is home to several brilliant copyright scholars, is, however, possibly the worst example Canada could look at with respect to the results of recent American lobbying influence. Note the recent de-election of John Howard's party and Mr. Howard personally as well. This was not likely over copyright but apparently very likely over Mr. Howard's pro-Bush/war in Iraq stance.

It seems that this is not a time of automatic deference to American foreign policy wishes. And it seems that copyright has made the leap from occasional academic articles and court cases to front page news and the main stream media - page one of the Globe and Mail on Saturday, December 22, 2007.

But lest I forget, while a 645 page or so copyright act may do very little good for creators and very much harm for users and consumers, it would certainly be terrific news for lawyers looking for more work.

HK

Antigua - The Mouse that Roared - and Won

Antigua is now getting ready to pocket its winnings, its WTO victory against the USA. It can suspend its TRIPs IP obligations to the tune of $21 million a year, not bad for a tiny little country.

Here's the NY Times report.

Here's the Register report, which quotes the colourful lawyer for Antigua, Mark Mendel, who is very dissatisfied with the quantum and method of calculation. He had sought $3.2 billion. And according to this article, it ain't over yet:

Unlike other WTO rulings, awards of arbitrators are not subject to review by the Appellate Body of the WTO. However, were internet gambling to continue to expand in the US - as seems almost certain - Antigua would have the right to return to the WTO to reassess the damage award. Antigua's position will also have to be revisited as the US continues its Article 21 proceedings to withdraw gambling services from its WTO commitments.

Here's Bill Patry's take on the ironic possibilities of how this amount will translate into action by Antigua. Bill says:

One wonders whose figures Antigua will use to come to that amount: the IIPA's ludicrously inflated figures, where every estimated unauthorized copy represents a 1:1 displacement of a sale at U.S. prices, or something else of Antigua's own concoction? I am betting on the latter.

Another irony is that this is about 21 times more than the US is now paying out for the sweet deal it got for flouting its obligation to pay for public performance in small establishments in the WTO "s. 110" decision.

Here's the WTO site for everything you wanted to know about this case.

And here's Jon Newton's take, and he may have first on this, at least in my travels today.

And here's where I said back in Augst that this should be taken seriously....

HK

Jeremy de Beer on Copyright Commission...

Jeremy de Beer also favours a copyright commission.

He says:

There's been a lot of buzz lately about the possibility of an official public inquiry, whether in the context of a Royal Commission, Parliamentary Committee or other formal process. Howard Knopf has been making this plea for years, and I think he's bang with his suggestion and the reasons for it. To me, the only real questions are how quickly an inquiry could be organized, and when it ought to take place. Should the inquiry precede a bill or should draft legislation be used as a basis for discussion? Frankly, I think either option would be pretty good, and both are better than the closed-door process that's taken place so far. A public inquiry of any sort at any time could provide a framework for consideration of the grassroots concerns we've seen articulated informally in the past few weeks via facebook and in the mainstream media.

This is the first of several interesting New Year's resolutions that Jeremy will outline over the next few days. Watch for them....

HK

The Gathering Storm

See today's Globe and Mail:

Ottawa accused of caving in to Hollywood on copyright

BILL CURRY

From Saturday's Globe and Mail

December 22, 2007 at 12:02 AM EST

OTTAWA — The Conservative government hasn't even released its proposed copyright reform legislation, but already a showdown is brewing between media producers demanding protection from tech-savvy pirates and the grassroots efforts of thousands of Canadians who believe the bill will be unjustifiably restrictive.

As a result, what was once a low-key issue in Ottawa is morphing into a potential political storm.

(emphasis added).

PS - in one day on a very busy weekend, there are almost 200 spontaneous comments posted on the Globe and Mail website to the above article. Many of them are quite perceptive. Since registration is required to comment, one can assume that this is but the small tip of a big iceberg.

HK

Trosow on Copyright Commission...

Sam Trosow has a thoughtful comment on the diverse support for and momentum towards a copyright commission...along with a summary of other useful takes on recent events and possible future happenings.

HK

Canadian Library Association Press Release

Here's a very constructive press release from the Canadian Library Association, on behalf of its 21,000,000 users and 57,000 library staff. Here's an excerpt of the CLA's letter to the Ministers, which includes some very specific, positive and well reasoned positions:

- Any new copyright legislation must be carefully crafted so that it punishes copyright-infringing behaviour but does not ban devices that might be used to circumvent technological prevention measures. "Technological measures can be used to invade privacy and prevent Canadians from invoking their rights," Butcher said.

"The legislation must protect Canadians who are merely upholding their rights."

- The Government needs to recognize that government documents and government data belong to all Canadians and that all Canadians should have liberal access to these materials.

"Current Crown copyright rules can mean Canadians pay multiple times for the same information," Butcher said. "The increased costs are barriers to learning."

- Persons with perceptual disabilities must have the same right to access copyrighted materials as all Canadians have. This right should apply regardless of format in order to accommodate their particular needs. Legislation is required to give persons with perceptual disabilities access equity with others.

"Digital information is extraordinarily useful in overcoming physical, learning and perceptual disabilities," Butcher said. "This is a real opportunity to level the playing field."

- Libraries oppose legislation that makes the same mistakes as the American Digital Millennium Copyright Act. American law makes no differentiation in penalty between a counterfeiter circumventing technical protection measures for illegal profit and an individual circumventing technical protection measures to make a single copy.

"Even one of the architects of the DMCA has admitted it is flawed legislation," said Butcher. "Let's not make the same mistakes."



HK

Kraft #2 - Richard Gold's Op-Ed

With the author's blessing, here's the whole piece. And it's very good indeed. Bravo, Richard!
*********************************

COPYRIGHT LAW
How the Grinch stole chocolate

E. Richard Gold
Globe and Mail (Toronto)
December 19, 2007, p. A25

-----------------------------------------------------------------------


E. RICHARD GOLD Director, Centre for Intellectual Property Policy,
McGill Faculty of Law

Who's the Holiday Grinch? I nominate Kraft Canada for trying to
deprive Canadian children of chocolate bars.

This month, Kraft Canada sued a small Montreal company, Euro-
Excellence, for the second time after having lost its first case last
summer before the Supreme Court of Canada. The Competition Bureau needs to stop this abuse.

Euro-Excellence imports Toblerone and Cote d'Or chocolate bars from Europe. It pays full price to Kraft Canada's European parent company, the manufacturer of the bars. Kraft wants to stop the importation of its bars into Canada to keep prices here high. Cote d'Or bars sell for about half the price in France than they do in Canada.

Kraft is also trying to keep the Canadian market starved for chocolate by reducing the flavours it allows into the country, again leading to higher prices from Canadian consumers. At a time when Canadians are already paying too much for imports due to the high Canadian dollar, this smacks of exploitation.

Kraft is relying on a section of Canada's Copyright Act that has nothing to do with chocolate. The section aims at preventing the importation of illicit copies of books, CDs and other creative works into Canada from countries where musicians and authors receive no payment. Kraft says Euro-Excellence is violating Kraft's copyright in its logo when Euro-Excellence imports chocolate bars into Canada.

Kraft lost this case after having dragged Euro-Excellence through the courts for the past five years. Not satisfied with a ruling against it from the nation's highest court, Kraft has started another suit, presumably knowing that Euro-Excellence probably does not have the resources for another fight. This is exactly the kind of misuse of the law that judges say is undermining the public's respect for the justice system.

Kraft is trying to get around the Supreme Court's decision through a technical legal change in the relationship between Kraft's parent company in Europe and itself. The only reason for this change - from an exclusive licence to an outright sale of the Canadian rights in the logo - was to sue Euro-Excellence. What is particularly offensive is that the Federal Court of Appeal indicated only a few years ago that this sort of manoeuvre could well violate Canada's competition laws. When the only reason behind the transfer of copyright is to prevent competition from other importers, the transfer is suspect.

Nonetheless, Kraft did exactly this.

While Euro-Excellence could fight the case and, given the law, win, it is unfair to make this company pay all the expenses of a second long court battle to protect Canadian consumers. And make no mistake: It is Canadian consumers who lose when international companies such as Kraft prevent the importation of perfectly legitimate, fully paid products available on the international market. Free trade was designed to bring more competition and better value to consumers. Kraft's action seeks to prevent this.

If Kraft succeeds, customs officials will have to add chocolate bars to the list of items that cannot be brought into Canada. I must admit to a personal interest: Last month, I imported four Cote d'Or chocolate bars from France. If Kraft is right in its argument, then I have breached copyright law and customs officials should have seized them. Absurd.

While access to chocolate bars at reasonable prices may not be Canada's highest priority, the precedent Kraft is setting is deeply worrisome. Kraft and other international corporations are large and profitable because of the openness of world markets. It undermines public confidence in trade and in the fairness of the market when these same companies bully small competitors out of the market to maintain artificially high prices. The Competition Bureau needs to send a message to Kraft and other international companies contemplating similar anti-competitive practices that their conduct is not welcome here.

********************

Kraft Redux

Richard Gold has an excellent op-ed in today's Globe and Mail, unfortunately buried behind a pay wall.

Kraft is suing Euro Excellence - again. Here's part of what Richard said:

Kraft is trying to get around the Supreme Court's decision through a technical legal change in the relationship between Kraft's parent company in Europe and itself. The only reason for this change - from an exclusive licence to an outright sale of the Canadian rights in the logo - was to sue Euro-Excellence. What is particularly offensive is that the Federal Court of Appeal indicated only a few years ago that this sort of manoeuvre could well violate Canada's competition laws. When the only reason behind the transfer of copyright is to prevent
competition from other importers, the transfer is suspect.

Nonetheless, Kraft did exactly this.

While Euro-Excellence could fight the case and, given the law, win, it is unfair to make this company pay all the expenses of a second long court battle to protect Canadian consumers. And make no mistake: It is Canadian consumers who lose when international companies such as Kraft prevent the importation of perfectly legitimate, fully paid products available on the international market. Free trade was designed to bring more competition and better value to consumers. Kraft's action seeks to prevent this.

(emphasis added)

Needless to say, I agree. I successfully made very similar arguments earlier this year in Kraft #1 at the Supreme Court. Kraft, apparently, is determined to attempt to use the Copyright Act to subvert free trade with a result that would resound throughout the Canadian economy and affect countless products to which the act was never meant to apply. Seven out of nine justices clearly had no sympathy for Kraft's position. But Kraft is oblivious.

When a company is as big and rich as Kraft, it seems that it can follow the old maxim: "if at first you don't succeed, try try again."

Let's see what the Courts have to say about this the second time around.

HK

A ROYAL COMMISSION ON COPYRIGHT?

I thank John Degen for pointing out that Christopher Moore of the Creators Rights Coalition has come out in favour of public inquiry, indeed a royal commission on copyright:

Let’s have a public inquiry. Hell, let’s have a Royal Commission. Get someone not insane, and see what they come up with as a set of principles that a government might feel empowered to endorse.

I not only agree but can’t resist saying “I told you so.....” Indeed, many times. See here and here for example.

We have certain problems that need to be dealt with right away. But a judicially led commission is the way to go for the balance of the problems.

Such a commission could do a great job of inquiring into the Canadian copyright system, if given an adequate budget, staff and terms of reference to get the job done and to issue a fully reasoned and documented report in the tradition of Justices Parker, Ilsley, and the Economic Council. England also has this tradition, as Bill Patry recently pointed out , not to mention Judge Whitford's report.

Such a commission could solve a major problem for the Government by taking care of an apparently intractable structural problem that has eluded successive governments and ministers for years, which is how to handle the copyright file within the departmental framework. Such a commission could have credibility with all stakeholders, if done right.

Such commission should be led by a judge who knows a lot about intellectual property law and whose expertise, experience and, above all, independence are beyond question.

So, I agree with Christopher Moore on this

HK

A PUBLIC DOMAIN PROJECT FOR WIPO?

It’s no secret that, for a long time, it has not been the best of times at WIPO.

For whatever reason, WIPO has been singularly unsuccessful in the past decade at international norm setting. While it continues to take in enormous amounts of money from its patent and trade-mark operations, and has done a terrific job at domain name dispute arbitration, its treaty making role in substantive law has basically fizzled. The reasons are complex and the result is sad, because there are some really dedicated and highly professional people at WIPO and in various member states who have tried to get good things done.

WIPO’s last major treaty success, if it can be called that any more, was the 1996 WIPO WCT and WPPT internet treaties, which have had an embarrassingly slow uptake in terms of ratification. Amongst developed countries, only the USA, Japan and Australia (courtesy of now de-elected John Howard) have ratified. The EU, Israel, Ireland, Switzerland and Canada have signed but not ratified. (Belgium apparently ratified by mistake, contrary to EU procedures). The rest of the ratifiers are essentially a "coalition of the billing", ranging from Albania to Venezuela. China, in a class by itself, has recently acceded. (However, the US hardly views China as an example of wonderful IP practice, and has brought a sweeping complaint against it in the WTO).

The 1989 audiovisual film registration and “Washington” integrated circuit protection treaties fizzled and never came into force.

Patent law harmonization has fizzled.

Most notably , the long and painful attempt to develop an unnecessary broadcasters rights treaty appears to have finally gone into a permanent and irreversible coma, though it hasn’t yet been declared officially dead.

So, what could WIPO do now that might be useful and might actually have a successful outcome?

How about a treaty on the public domain?

The public domain is incredibly important. Even Canada’s Access Copyright professes to be interested in the “PD”, though its much touted project with Creative Commons seems to be nowhere in sight.

We could use a treaty about when and how works enter the public domain. I doubt that much can be done to undo the irreversible self-inflicted wound of life + 70 years concocted by the US and EU, and now inflicted bilaterally on many countries not sufficiently independent or well informed to resist the bilateral blandishments of the USA. Mexico has inexplicably gone to life + 100.

However, there is still a lot of room to deal with such issues as posthumous unpublished works, government works, works subject to conflict of laws, and maybe even works transmitted over the internet, etc. This is tremendously important. It is the sort of highly technical issue that WIPO once handled very well and in which the WTO lacks any expertise or experience. It’s in everyone interest to get this right - from reclusive scholars to corporate entertainment giants. And it could give WIPO an opportunity to get back into its groove.

HK

Copyright as "Sexy"

Ivor Tossell of the Globe and Mail has a very provocative article today about how copyright is now “cool” and “sexy.” The irony is that the copyright maximalists are reaping what they have sown.

Indeed, there is a growing recognition that copyright is becoming an issue that also resonates with other familiar - and such politically sensitive - “sexy” issues as:

• Political sovereignty. Note that Canadians are leery of “made in the USA” policies. Whether Iraq or DMCA.
• Cultural sovereignty. Note that Canadians actually like their independent Canadian creators, such as Avril Lavigne, Sarah McLachlan and Bare Naked Ladies and respect their independent views on balanced copyright, which is quite different than that of many others who profess to speak for the Canadian music industry.
• Cultural diversity. Note that there’s a lot of legitimate material from around the world that is being blocked in Canada by regional coding due to DRM, which is all about price discrimination and denial of access.
• Individual freedom. Note that Canadians want to be able to see, read, hear and communicate whatever they wish whenever and however they wish without having pay too many times or too much or being blocked outright.
• Competitiveness and innovation. Note that serious documented Canadian slippage could be because we already pay more for per capita and have less access to copyrighted materials than our counterparts in the other major economies.
• Privacy. Canadians are justifiably proud of our serious respect for privacy, which has thus far been successful in preventing lawsuits against children and dead grandmothers in this country. Excessive DRM protection and litigation against downloaders and file sharers will blow this privacy away.

All of this is nothing if not ironic. The content industries have succeeded in raising the profile of IP to the highest levels of government in the G8 countries and elsewhere.

Much of the reason for this IP high profile is based upon profoundly fallacious metaphors and “moral panic” arguments, as Bill Patry is so eloquent at exposing. i.e. if I steal your car, I am clearly harming you, but if I cut and paste from your scholarly article or even from your movie or song, and I credit you, I am likely also benefiting you. Many, including musicians, would say the same about downloading songs. However, the DMCA and the anti fair use/fair dealing approach knows no such subtlety.

"Intellectual property" is not the same as "property" in real estate or a car.

Did these lobbyists really think that nobody would notice this increased attention to IP in the days of Web 2.0?

As I so often say to IP lobbyists - be careful what you wish for.

HK

COPYRIGHT INTERRUPTUS

It started. It stopped. It almost happened. Twice in one week. The tabling that was supposed to take place on December 11, 2007 didn’t happen. It was supposed to happen again today, Thursday, December 13, 2007. It didn’t happen.

This is a bit ambiguous. It would have been better in some respects to see the bill in all its detail - and let the public have 6 - 8 weeks to analyse and debate it before the House resumes. Now, it’s back to the backrooms, where anything can happen. Hopefully for the better, possibly for the worse.

The better scenario is that the Bill will get much better in the interim, and deal with the right issues so that it can be improved even more in Committee. And/or that it be tabled as a “draft” bill, like I suggested yesterday. This might be something like the “exposure draft” mechanism that they have in Australia, as I understand it.

Let’s hope that the Ministers and the PMO get this right and do the right thing, whether for sound policy reasons for simply for purely political reasons. They would then garner a huge amount of respect from the thousands of wired and articulate people who are watching this drama unfold and who are not going to fade away and forget very easily.

Here is my suggestion.

The Government should rework the bill that it obviously had profound second thoughts about and come up with one that ensures that:

1. ISPs should face no liability for users’ activities if they to respond promptly to “notice and notice” demands. “Notice and takedown” is not appropriate in Canada.

2. DRM and TPM protection measures must be minimal at most and not circumvent user’s rights to do anything otherwise legal under the Copyright Act or interfere with users’ first sale and exhaustion rights and must be directed at specific behaviour and not multipurpose technology.

3. Users’ rights must be extended to include such fair dealing rights as parody, time shifting and format shifting. They should be inclusive and not exhaustive, i.e. with inclusion of inclusive language such as “such as”....Broadcasters should get their ephemeral rights. There’s no need and no basis for a special educational exception for the internet.

4. The private copying levy scheme should be repealed

5. Any “Making available” right must require proof of actual and prejudicial distribution.

6. Statutory minimum damages should be eliminated against:
a. Any person (individual or corporate) and any third parties serving them when there is a bona fide belief that the activity is fair dealing
b. Any person (individual or corporate) doing anything without any expectation of direct financial gain.

This government could earn immense respect from countless real Canadians and people who watch Canada around the world if it shows real leadership here.

HK

A Draft Bill on the Hill?

Sam Trosow is a Professor at Western. He has quietly become quite well respected in his few years in Canada. He brings with him experience in American copyright law and library science. He’s on sabbatical and currently a scholar in residence at CAUT.

He’s just launched a new blog (not to mention an excellent book he wrote with Laura Murray, concerning which I’ll have much more to say later).

His blog calls for the tabling of a “draft” bill. This may be a very constructive suggestion.

Now that the government understands how important this issue is to so many Canadians, they have an excellent opportunity to open up the process to broader public consultation. But according to a CTV Report , Minister Prentice said, “To be speculating on what the bill says, when no one has seen it, is not really a constructive exercise.”


So I would ask the Minister, just how can the public engage the government on the issue in a "constructive" manner? Perhaps it is time for the government to release their latest draft version of the bill so we can all be on an even playing field in discussing it.

I don't know if the following is what Sam had in mind, but it could work this way. The Government would introduce its bill in as a “draft bill”, which means it can be referred to Committee for examination without the very rigorous rules of the usual legislative process, because it has not yet received “first reading.” The Committee could then hold hearings and then recommend changes, which the Government could take into consideration when it finalizes the actual Bill. For fans of arcane Parliamentary procedure (and you though copyright law was complicated?), see the “bible”, which is Marleau and Montpetit, p. 615.

This is worth thinking about. If Ministers Prentice and Verner and the PMO really want to hear what real Canadians need from a new copyright law, this could be a good way of getting that input. It could start with the Government's best shot as a "draft bill" when the House comes back after Christmas - and then get even better from there. An open, transparent and sincere set of hearings on a draft bill - without the constraints, pressures, secrecy and tension of the formal legislative process - might be just what is needed now.

HK

Canada, Israel, DMCA and Sovereignty

Michael Geist points to a very perceptive post by Ariel Katz who is at U of T about Israel's recent new copyright law.

According to Ariel:

Israel's new act has revealed its copyright priorities. Overall, Israel decided to increase the flexibility of its copyright law and make it more open and friendlier to users, educators and innovators. It decided to reduce the ways in which copyright law can work to restrict competition. For the time being, it decided not to enact anticircumvention rules that have the potential to work in the other direction. This choice is compatible with Israel's innovative and creative record. This choice is essential for a small economy whose citizens' brain is the only natural resource. Canada should seriously consider doing the same.

(emphasis added)

At the risk of being politically incorrect, let me point out something obvious here. If any country would seem to need to be beholden to the USA, it would probably be Israel. Yet Israel fiercely asserts its independence from the USA in many ways, and wariness of the DMCA approach is apparently one of them. Mazel Tov to Israel! Doubtless, this overall spirit of independence is one of the reasons why successive American administrations seriously respect Israel.

Canada is not nearly so dependent on the USA as Israel. Canada's very survival is not at stake. (Actually, it is in the long run as a result of the kind of pro-American pandering that we may soon see on this file, but not in the immediate day to day sense that Israel faces). However, Canada has forgotten that we won the war of 1812, which I was proudly taught way back when was the only war America has ever lost. That, of course, was well before Vietnam.

So - if Israel can call time out on the DMCA and assert copyright sovereignty, what is the matter with Canada?

HK

Richard Stallman on CDN DRM ("Digitial Restrictions Management")

The legendary “free software” ("free" refers to “liberty, not price”) proponent, Richard Stallman, has contacted me and expressed his appreciation of my post about how Canadian copyright law is already stronger and better in many ways than American law.

He has pointed out that hat "DRM" also stands for “Digital Restrictions Management” and has warned Canadians to take action to stop it. He has also written a letter to the editor of the Hill Times about this and about my piece in that publication dated November 26, 2007.

Canada should listen carefully to American experts such as Richard Stallman We must learn from American excesses and errors. Even Bruce Lehman, architect of the DMCA, has effectively told Canada so more than once.

What Richard Stallman says is very important and is watched and admired by many influential people. He is one of the illustrious pantheon of EFF Pioneeer Awards Recipients and recipient of many other honors and honorary doctorate degrees.

HK

Notice of Copyright Bill

It's official. Notice has been given.

Stand by on Tuesday.

HK

CAUT Copyright Position

The CAUT (Canadian Association of University Teachers) has sent a very good letter dated November 30, 2007 about copyright reform to Ministers Prentice and Verner and several influential MPs.

CAUT, which represents Canada’s university professors, calls for:

1. Inclusive treatment of fair dealing, i.e. clarifying that listed exceptions are not meant to be exhaustive.

2. No new sector specific exceptions, i.e. educational internet exception not necessary because fair dealing is more equitable and less complex.

3. Anticircumvention provisions to apply only to infringing activity and not be aimed at devices.

4. Notice and Notice regime for ISPs

5. Good faith belief in fair dealing as a defence to statutory damages

6. Standard form contracts not to override statutory users’ rights

7. No term extension.

When there is a link to this letter, I’ll provide it.

Update: here's the letter.

HK

Copyright, Calfs, Cows, and Cash

Deirdre McMurdy delightfully takes the copyright wars back to what some say is the beginning, i.e. the struggle between St. Finnian of Moville and St. Columba of Iona over St. Columba's copying of a psalter that belonged to St. Finnian. Hopefully, the forthcoming battle on Parliament Hill will be more restrained than the confrontation in 651 AD in in the battle of Cul Dreimhne, where there were some 2,000 casualties. Indeed, this epic is immortalized in a display in the WIPO building.

But Ms. McMurdy also provides a good update and checklist of what will start to play out any day now on the cold, snowy Parliament Hill. Complete with references to missionaries and their zeal.

For those who want to know more about Saints Finnian and Columba, see here:

St. Columba was born on December 7, ca. 521 A.D. to Fedhlimidh and Eithne of the Ui Neill clan in Gartan (Donegal). As a young man, Columba soon took an interest in the church, joined the monastery at Moville, and was ordained a deacon by St. Finnian. After studying with a bard called Gemman, Columba was ordained a priest by Etchen, the bishop of Clonfad. Columba entered the monastery of Mobhi Clarainech, and when disease forced the disbanding of that monastery, Columba went north and founded the church of Derry. Tradition has it that after founding several other monasteries, Columba copied St. Finnian's psalter without the permission of Finnian, and thus devalued the book. When Finnian took the matter to High King Dermott for judgement, Dermott judged in favor of Finnian, stating "to every cow its calf; to every book its copy" (I am borrowing this quote from Cathach Books in Dublin). Columba refused to hand over the copy, and Dermott forced the issue militarily. Columba's family and clan defeated Dermott at the battle of Cooldrevny in 561. Tradition further holds that St. Molaisi of Devenish, Columba's spiritual father, ordered Columba to bring the same number of souls to Christ that he had caused to die as pennance. In 563, Columba landed on Iona with 12 disciples, and founded a new monastery. After founding several more monasteries, confounding the local druids, and participating in another battle (this time against St. Comgall over who owned the church of Colethem), Columba died on June 9, 597.

Source: Life of Saint Columba, Founder of Hy. Written by Adamnan, Ninth Abbot of that Monastery, ed. William Reeves. (Edinburgh: Edmonston and Douglas, 1874) I

(emphasis added)

Note that this famous quote may help to explain why copyright is now such a "cash cow" for certain special interest groups. ;-)


HK

Demise of DRM and Moving On

More evidence of that the rumors of the death of DRM in the record business are not being excessively exaggerated can be found here at Reuters and here at Ars Technica.

So - one wonders whether the Canadian Government will really try to etch into stone a maximalist form of protection for a minimally useful and - more to the point - largely unworkable and dysfunctional technology that the industry itself is leaving behind as fast as it can. And as fast as one can spell C-R-I-A.

When automobiles came into being, the horse and buggy industry learned to adapt.

The rail industry adapted to airplanes.

IBM moved beyond typewriters and main frames - though their delay was extremely costly.

But the record industry remains stuck on a a one hundred year old model that maxed out in the 1980's with the $25 dollar CD.

Those days are over - and the Canadian government should let the fertile and creative part of the music industry and Canadian citizens, consumers and music fans move on.

We don't need legislated protection for harnesses and buggy whips.

HK

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

Hong Kong Leads the Way - Again

Once again, Hong Kong shows that it leads the way, in certain respects at least. It has opened an official government intellectual property rights museum.

The 235-square-metre museum in Kowloon Bay displays more than 300 pieces of significant copyright-infringed items and counterfeit goods seized by Customs. Simulated scenes of copyright-infringement activities in the museum will also serve as a useful training ground for frontline investigators.

This follows Hong Kong's conscription of the Boy Scout movement last year. The Boy Scout conscription quickly spread to L.A.

I can only wonder at what an American version of an intellectual property rights museum might look like. The entrance hall might feature a larger than life statue of Jack Valenti doing epic battle with marauding VCRs. Or a likewise impressive statue of Sonny Bono standing on Gutenberg's tomb with an endless loop of a heavenly chorus singing a rapturous oratorio entitled "Forever" with lyrics by John Ashcroft.

HK

William Patry on Fair Dealing in Canada

Bill Patry has important words about Canada and fair dealing. Probably nobody knows more and has published more about the American law of fair use law than Bill - as shown in his past monograph and wonderful new seven volume treatise. He is authoritative on this very complex subject. He has collaborated on it in important scholarly work with the one and only Judge Richard Posner. American law is about to loom large in Canada, where we have “fair dealing” - the doctrine that had been until recently thought to be more restrictive than the American “fair use” framework. Bill’s work is bound to be an indispensable reference in the debates, research and jurisprudence to come.

The Tariff 22 decision from the Copyright Board is a good step forward. It is a breath of fresh air in a forum where users’ rights have too often in the past seemed somewhat subordinate to the agenda of the collectives.

The next acid test will be the Board’s ruling on the Access Copyright (counterpart to the American CCC) attempt to zap the Canadian educational system for $8 bucks or so per student per year - for all of the supposedly infringing activity that Access Copyright thinks is going on in the K-12 classrooms. That hearing is almost over - and a decision will likely be at least six months away. Fair dealing has been dealt with - and all eyes will be on the result.

The issue of fair dealing could also arise in the future at the Copyright Board in the context of such files as media monitoring and private copying, for starters.

I suspect that the Copyright Board 's recent decision on Tariff 22 will be taken to judicial review (“JR”) (i.e. “appealed”). It puts a lot of water in several of the ley parties’ wine. The result will either be a standoff with no JR, or a full blown consolidated JR hearing where several issues will be raised. The fair dealing ruling is likely going to be seen as a real threat by many collectives and corporate copyright owners. JR would have the result of prolonging SOCAN’s efforts for its proposed Tariff 22 internet tariff effort, which is now 12 years old, for at least another year and possibly more if the Supreme Court of Canada takes a second bite at it, which is entirely possible. Not to mention that six of the seven parts of the tariff still haven’t been completely dealt with at the Copyright Board. One or more of these rulings could also generate judicial review as well, when they come out presumably in the next few weeks or months. The proceedings in SOCAN’s proposed Tariff 22 are nowhere near over - even after 12 years. I’ve set out the main issues in the recent decision, which I call the "Single Malt Tariff" because of its age, elsewhere on this blog.

If Bill Patry thinks that Canada is on the right track, as exemplified in CCH v. LSUC and the recent Copyright Board decision in Tariff 22, that’s very, very important. The CCH decision from Canada’s Supreme Court is really remarkable - because it allows for the flexibility of the Amreican fair use analysis + the certainty of Canadian fair dealing. We could have the best of both possible worlds up here - if we don’t screw things up.

I hope that the CCH decision remains intact and is built upon, as the Copyright Board is trying to do. But I’m sure that there are efforts underway to undermine CCH in the forthcoming legislative revision exercise. In fact, whatever the intention may be, the efforts by the Council of Ministers of Education Canada (CMEC) for a special internet educational exception could have precisely this effect, due to the a contrario implications for everyone outside the educational tent if CMEC gets its wish. In this context and others, such as 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.

Anyway, Bill Patry is a towering figure in world copyright law. If he thinks we are doing something right in Canada, we probably are and we should pay attention and be grateful for his attention.

HK

IMSLM has a life line - sort of....

Michael has posted good but, alas, not great news on IMSLM. Project Gutenberg will come to rescue - but only as far as it can go under US law.

If the Project Gutenberg archive has to abide by USA law to host the IMSLM Project, then it won’t be able to post, for example, some of Arnold Schoenberg’s (September 13, 1874 – July 13, 1951) scores because the USA has irrationally committed itself to a life + 70 years term. However, note that scores published pre 1923 are OK even in the USA..

Schoenberg, along with Stravinsky ((June 17, 1882 – April 6, 1971), was one of the handful of most influential composers of the last 100 years. When the dust finally settles on 20th century music, it will likely be one or the other of them that are considered as “the” most influential in terms of “serious” music.

Stravinsky’s copyright story is a book unto itself, yet to be written, because many of his greatest works were first published in Russia at such an early date that they are in the public domain (because of Russia’s non adherence in those days to any relevant IP treaties) - though there have been several revisions since of some of his early works which try to reconsecrate virginal copyright status in the Berne and Universal Copyright Convention worlds. Stravinsky is not published by Universal Edition.

Schoenberg was the architect of “twelve tone” or “serial” music, which is the basis of much of the twentieth century’s music heritage. This twelve tone technique has even found its way into countless works ranging from great works by Elliot Carter to much horrible music by lesser composers, and particularly in countless Hollywood B-Movie and lesser film scores.

It is important that great and not so great composers’ music be made available to the public ASAP in the in countries that have not engaged in the self inflicted wound of life + 70 years of protection. This is how culture evolves. All great composers build on their predecessors. Stravinsky is said to have said that “A good composer does not imitate; he steals.”

Schoenberg’s music is not only extraordinarily important - it’s very beautiful as well, though it’s an admittedly acquired taste still not shared by too many.

The scores of music of this type are dreadfully expensive and very hard to find at all, outside of places like London and New York. What is the point of having the internet and having a life + 50 term if those in Canada and other life + 50 countries cannot enjoy their “users’ rights”?

The early part of the 20th century was an extraordinarily fertile period in Western culture. Its absurd that we have to wait longer and longer to get access to it because of the Mickey Mouse term extension movement.

Maybe it’s time that Project Gutenberg and Archive.org thought about coming to Canada.

Meanwhile, the IMSLM project should be hosted in Canada by a Canadian university. It would be a terrific teaching and research tool. Canadian law would be very sympathetic.

HK

Vaver Live today on Euro Excellence v. Kraft

Tune in for a webcast at 1:00 PM today, Wednesday October 24, 2007 for Prof. David Vaver, formerly from Osgoode Hall Law School and now at Oxford, who will lecture on the SCC’s Kraft’s decision:

Osgoode advises that:

Professor Vaver’s lecture will assess how the Supreme Court is interpreting Canada’s intellectual property laws and how its decisions may affect legislative policy. Among the cases considered will be the Euro-Excellence v. Kraft Canada (2007), where an attempt to use the copyright law to block parallel imports of chocolate bars into Canada was narrowly repelled. The decision, involving four widely divergent opinions, recalls Milton’s lines from Paradise Lost: “Chaos Umpire sits, And by decision more imbroiles the fray By which he Reigns: next him high Arbiter Chance governs all.”

Dr Giuseppina D'Agostino advises that:

By popular demand Osgoode's James Lewtas lecture featuring University of Oxford Professor David Vaver will be webcast live starting at 1:00PM Eastern Time on Oct 24 in Windows Media format.

I am advised that the link to the webcast should be available on the Osgoode Hall Law School homepage and that the event should also be archived online on the Osgoode Conferences and Seminars page.

I must confess that I have a particular interest here. On behalf of my client, the Retail Council of Canada, I presented the arguments at the Supreme Court of Canada that prevailed in this case. Here’s my early summary of the outcome.

With David's well deserved reputation as a renowned scholar, author and teacher of copyright law, his take on this will doubtless be both very interesting and very important.

I truly have no idea of what he will say, but I’m really looking forward to hearing it. And I'm so pleased that I and doubtless others persuaded Osgoode (my alma mater) to do this "live." Thanks, Pina!

HK

"ACTA" - a New Plurilateral Policy Platform

A potentially important announcement from Washington, Brussels (EU), and Ottawa (and doubtless elsewhere) today re a proposed Anti-Counterfeiting Trade Agreement - “ACTA.”

According to US Ambassador Schwab:

The ACTA would complement the Administration’s work to encourage other countries to meet the enforcement standards of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization, and to comply with other international IPR agreements. It will not involve any changes to the TRIPS Agreement. Rather, the goal is to set a new, higher benchmark for enforcement that countries can join on a voluntary basis. The negotiations represent a cooperative effort by the governments involved, and will not be conducted as part of any international organization.

The list of currently interested countries read a bit like preaching to the choir:

[US] Trading partners engaged in discussions so far include Canada, the European Union (with its 27 Member States), Japan, Korea, Mexico, New Zealand, and Switzerland.

Most of these countries have adequate and effective levels of substantive law and enforcement mechanisms.

So - these questions arise:

• What’s this really about?
• Will the US “insist” on ratcheting up substantive law - for example by defining downloading, “making available” and DRM/TPM circumvention as “piracy”?
• Will the US and EU insist that all countries have a common copyright term - for the sake of better and more symmetrical “enforcement”?
• Will legitimate parallel imports get caught, like dolphins in a drift net?
• Where are WIPO and WTO in this?
• Is this an exercise in plurilateral policy laundering?

There is clearly potential for positive developments here. Indeed, counterfeiting involving trade-marks is morally, economically and even criminally wrong - especially in the thankfully rare cases when health and safety are involved. Commercial scale copyright piracy is also quite wrong - although certain elements in the record industry apply the word “piracy” rather promiscuously to include all manner of private copying that they cannot control - thereby labelling hundreds of millions of ordinary internet users as “pirates.”

But some rights owner lobbyists and sympathetic officials have a tendency to conflate “effective action” on enforcement issues with substantive law augmentation. We saw an example of this in the Grokster case in the US Supreme Court, and I was asked to write an “amicus” brief on it.

What we don’t want to see are excessive barriers to the flow of legitimate goods, including parallel imports - which are legitimate by definition. There is a danger that customs officers and even lawyers won’t be sure of the difference in some cases. If that happens, millions of dollars of legitimate goods may get tied up or cost more to clear at a border. And we don’t want to see a backdoor mechanism to increase substantive laws in ways that threaten Canadian cultural and economic sovereignty.

And we don’t want to see a good cause become the pretext for bad laws. Think 9/11. The Bush administration has tried to brand many critics of its excessive post 9/11 incursions on civil liberties as soft on terrorism. And we have seen the results ranging from common inconvenience at the boarder to tragedy. Will critics of potentially excessive ACTA measures be labelled as proponents of counterfeiting and piracy, and enemies of artists and creators?

There are also the dangers of a plurilateral policy platform dominated by the US and to a lesser extent the EU - especially since the often too low but at least established minimal institutional transparency of WTO and WIPO won’t be there. We may get a fait accompli that Parliament will be asked - or told - to implement. Or some would say “rubber stamp.” That’s how policy laundering happens - things that couldn’t get of the ground domestically are agreed upon far away by a few senior bureaucrats and politicians - and are brought home effectively as domestic law. All democratic countries should be worried about this.

BTW, here's a rather balanced British view from one of my favourite felines, the IPKat.

And here's a take from IP-Watch on the formidable forces pushing this initiative including Mary Bono - who famously told Congress that:

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. … As you know, there is also [Motion Picture Association of America president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.

This may provide a clue as to where these talks may be headed...

Update: Here's Minister David Emerson jumping on the bandwagon.

HK

Universal Edition AG Lawyer Responds

I have received a courteous e-mail from Mr. Ken Clark, the lawyer at Aird & Berlis who acts for Universal Edition AG. He has asked me to correct certain “ factual inaccuracies” in my blog of earlier today. However, since I respectfully don’t agree with most of his assertions about these alleged "inaccuracies", I will simply post his letter below “as is”, with my brief comments to his three points, which are these:

1. It is true that he did not demand the whole site be taken down. However, the webmaster chose to do this because there appeared to be no other realistic alternative. As “Feldmahler” states, “I also understand very well that the cease and desist letter does not call for a take down of the entire site, but, as I said above, I very unfortunately simply do not have the energy or money necessary to implement the terms in the cease and desist in any other way.” This total take down was clearly foreseeable, given the conditions sought to be imposed by Universal Editions AG.

2. Having written about and looked into the iCrave TV affair in some detail a few years ago, I believe that is still not necessarily straightforward to “implement filtering of individuals' locations based on the IP address of visitors to the IMSLP.” Mr. Clark says “Please see www.pandora.com for an example of this filtering.” In any event, this misses the point. If the Canadian site is not targeted specifically at and lacks a real and substantial connection with particular countries where there is still valid copyright, and if it goes to reasonable lengths to point out that copyright may still subsist in certain countries and that users in those countries should not violate such copyright, then the site would almost certainly comply with Canadian law in this case. Nothing is being knowingly sold, sent or shipped to such countries. In any event, Mr. Clark also demanded the implementation of a filter to prevent uploading any of Universal’s scores until the copyright has expired in Europe (where life + 70 applies). Anybody who has technology that can do that with scanned PDFs would be a multi-billionaire.

3. Mr. Clark’s third point opens up the perennially vexing question of copyright in “Urtext” (e.g. authentic scholarly editions). Some publishers add often trivially minor editorial changes over the course of time to make the edition supposedly more “authentic”, which also has the result of prolonging copyright claims for those who are not astute enough or content to rely upon earlier editions. The Supreme Court of Canada has discounted down to zero the value of minor editorial work in asserting claims to copyright in, for example, judicial decisions. See CCH v. LSUC, para. 35 etc. There is European law that might suggest otherwise in the case of scholarly editions of music, but I don’t believe that it would be followed in Canada, in light of CCH v. LSUC. Canada has a higher "threshold of originality" than the UK, for example. In any event, it’s not clear which editions were used of the music that’s clearly PD in Canada. And Mr. Clark's C&D letter did not make any such subtle point. It required the takedown of all of Mahler’s works - and Mahler died 96 years ago.

BTW, here’s a link to Project Gutenberg’s approach to similar C&D letters. Note, for example, the one dealing with Gone With The Wind, and Australia. And the one dealing with Herman Hesse’s Siddhartha, which is apparently PD in the USA, having been published in 1922 - but would not be PD in Canada because Hesse lived until 1962. These things can get complicated - and are respectfully not nearly as simple as Mr. Clark suggests.

Another example of where Canada will provide much longer protection than the USA is that of the early works of Irving Berlin, who outlived his own copyright in the USA by a long shot for works published before 1923.

Mr. Clark is right about Joseph Marx, assuming he is referring to the Joseph Marx who lived from 1882-1964. His music would not yet be in the PD in Canada.

Anyway, I thank Mr. Clark for his polite comments - even though I largely disagree with them for reasons such as those noted above. Here’s his e-mail of earlier today to me:

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Dear Mr. Knopf,

I am the lawyer who sent the cease and desist letter on behalf of Universal Edition AG that you reference in your blog of today's date.

I would like to point out some factual inaccuracies in your blog:

(1) Our client did not request the shut down of the entire site. Our client merely requested the removal of the legitimately protected works, or the ability to prevent infringement in Europe while allowing copying to be performed by those in public-domain jurisdictions through filtering. Please see http://imslpforums.org/viewtopic.php?t=664 for a message from our client directly to the imslp.org community reiterating that fact.

(2) It is very possible to implement filtering of individuals' locations based on the IP address of visitors to the IMSLP. Please see www.pandora.com for an example of this filtering. You will note that the site detects that your are from Canada merely from your IP address. It clearly is technically possible to implement filtering without any personal information being divulged by the users.

(3) Many of the works that were requested to be removed are not public domain in Canada. Some may include independent editorial notation and information that grant those publications copyright extending past the 50/70 year mark. (see e.g. the discussion on the IMSLP.org forums regarding specific works by Mahler at http://imslpforums.org/viewtopic.php?t=468&highlight=mahler and http://imslpforums.org/viewtopic.php?t=344&start=0&postdays=0&postorder=asc&highlight= with respect to their copyright status). You will note that the IMSLP organizers themselves acknowledged the copyright in Canada of at least one of these works by authors whose death date is more than 70 years in the past prior to the date of our client's demand letter. The other was debated as to the extent of the original editorial work. Other non-public domain works in Canada that were on the imslp.org site are by authors who have died less than 50 years ago (e.g. Joseph Marx).

I would appreciate it if you would correct these inaccuracies.

Yours truly,

Ken Clark

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HK