Charlie Angus' Net Neutrality Bill

This is a private member's bill and they rarely go anywhere.

I have immense respect for Charlie Angus, but this bill as quoted - presumably accurately by Jon Newton - won't likely do much to stop the crude throttling that is now so apparent, irritating and damaging - even for unquestionably legitimate and authorized activity now.

There is a an exception that would allow for a network operator to:

(g) Prevent any violation of federal or provincial law.

That's a potentially wide open invitation to the ISPs to crudely throttle .torrent and .mp3 files on the basis that they may be in violation of copyright law. Naturally, some will be and some won't be. But it would arguably be a good enough excuse for the big ISPs.

And, of course, the ISPs could always throttle away as they do now by relying on the main exception, which would allow them to:

(a) Manage the flow of network traffic in a reasonable manner in order to relieve congestion;

If there really is congestion now, which is far from clear, is there not an onus on the ISPs to provide more bandwidth and higher speeds, such as we see in other countries that have actual competition and don't condone a duopoly?

HPK

New Copyright Law - "Product of Canada"?

The Government is about to tighten up food labelling laws so that we won't any longer be faced with situations where, according to Prime Minister Harper as reported in the National Post by William Watson:

"A bottle of apple juice could have a 'Made in Canada' label on it and be made from apples grown in China. A bar of chocolate might say 'Product of Canada' but the cocoa beans come from the Ivory Coast. You might even find a Canadian label on a box of frozen salmon from Russia."

The idea is that:

" Under the new rules, "Product of Canada" will mean "all or virtually all the contents are Canadian."

Now, wouldn't it be nice if the soon expected copyright bill could meet these labelling requirements?

Or will it be, as expected, a "Product of the U.S.A."?

Yes, yes - I know that the new bill will not be "food" for human nourishment. But, without doubt, it will be food for thought.

HK

More on Getty Images

My earlier post on Getty Image's exorbitant demands resulted in several replies, which are posted here.

A couple of readers pointed to a site in the UK which has much info about Getty and a similar campaign by Corbis. The UK site summarizes the situation and also collects readers' postings.

I make no comment on the accuracy of these postings or whether or not the summary, advice and comments are useful, beneficial or harmful - but they are indeed interesting.

I will point out, however, that UK law is different than Canadian law in at least one material respect. The UK does NOT have Canada's draconian statutory minimum damages provision - which allows for a plaintiff to elect to ask a Court for a minimum of $500 per work infringed. Note that this amount can be reduced to $200 or even less by a Court, especially if there are multiple works involved.

Getty, of course, is asking at the outset in its formulaic demand letters for several times more than the $500 minimum that a Court might award - and in situations where a court might (no guarantees) award far less, even assuming that there is liability in the first place.

A test case on the discretion of a Canadian Court to reduce the statutory damages "minimum" to something more fair and appropriate where it doesn't fit could be interesting.

Once again, I'm pleased to note that David Fewer, Counsel at the wonderful CIPPIC clinic at the University of Ottawa' Faculty of Law, has agreed to keep track of these demands from Getty Images and to consider CIPPIC’s possible involvement. He can be reached at 613-562-5800 ext. 2558. His e-mail is:

dfewer@uottawa.ca

HK

Day of Reckoning?

If Michael is right, we copyright people will have have a tense and interesting summer ahead.

The long awaited/dreaded/overdue/delayed/anticipated (take your pick) Conservative copyright bill is apparently at hand in the next week or two.

If this proves to be true, and the bill is as controversial as Michael suggests, one can count on a busy summer of lobbying, op-eds, and caterwauling on all sides. Naturally, this will all happen outside of Parliament and outside of any committee, unless the Government takes the extraordinary step of holding committee hearings during the summer.

One of the key issues to watch will be to figure out where the Liberals stand and who speaks for the Liberals on these issues.

HK

Lessig on Orphan Works

Larry Lessig is suggesting in the NY Times today that:

Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.

For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.

This rule would not apply to foreign works, because it is unfair and illegal to burden foreign rights-holders with these formalities. It would not apply, immediately at least, to work created between 1978 and today. And it would apply to photographs or other difficult-to-register works only when the technology exists to develop reliable and simple registration databases that would make searching for the copyright owners of visual works an easy task.

Larry’s proposal can’t apply to foreign works because of the “no formalities” requirement of the Berne Convention (Article 5).

Assuming that it could apply to American works (i.e. giving less protection to American works than foreign works), there would still be some big problems, also arising from the national treatment doctrine under Article 5. For example, what if the “country of origin” under the Berne Convention is not clear? In many cases, it will be unclear - particularly if the author’s identity isn’t known, or if it simultaneously published in several countries.

It will also be unclear in many instances when the 14 years starts to run.

Above all, what if someone needs to copy the work before the 14 year period? Would Larry’s suggestion not, in effect, make that even more difficult than now?

Anyway, the idea of a parallel registration system that would require American copyright owners to register before 14 years have expired is likely to be totally unacceptable to vast ranges of corporate interests, and even individual song writers and others who have come to believe that “no formalities” means “no formalities.”

HK

Toronto Conference on New Distribution Models - May 22, 2008

The good news is that there will be a balanced and informative copyright event in Toronto on Thursday, May 22, 2008 on new distribution models. Although the milieu will mainly be concerned with "serious music", the issues naturally cross over into the commercial world. Here's the program.

Speakers dealing with copyright will include myself, David Basskin, Mario Bouchard, Ron Hay, and Paul Spurgeon. The keynote speaker will be Paul Hoffert.

The event will be hosted by Soundstreams, an important Canadian concert and more enterprise.

The great news is that the registration cost is only $60. Unlike certain conferences that charge $1,700 - $1,800 and are not nearly as well balanced, if at all.

HK

Patry on RIAA - "Canada Insulted Again"

Here is an essential-reading posting from Bill Patry, great American copyright treatise author. It concerns the US Congressional International Anti-Piracy Caucus (IPAC) and the RIAA.

Here's an extract. "Chapter 12" refers to the US Copyright Act, and Chapter 12 is the guts of the dreaded DMCA, which Bruce Lehman, its architect, also now admits "didn't work out very well."

...Once chapter 12 is implemented into domestic law, it is U.S. corporate copyright interests that will shape what consumer goods can be used in your country and how citizens of your country will be able to access and use lawfully acquired copies of works. No legislature that is amending its copyright law should do so without understanding the momentous delegation of power they are handing to U.S. corporate interests.

This is not a piracy issue, it is nothing remotely resembling piracy. It is Orwellian to claim otherwise. The designation of Canada as a scofflaw because it hasn't implemented chapter 12 of title 17 is not only an abuse of language, but also a direct attack on the sovereignty of another country to determine what is in the public interest of its own citizens. Canada has more than adequate laws against real piracy, and as Howard Knopf had pointed out, its laws are more generous toward authors than is U.S. law. No legislature in the world should abdicate its responsibility to protect the public interest by vesting the private sector with the powers granted in chapter 12 of title 17. But Canadian abdication is exactly what is being proposed by U.S. interests, the false justification being that Canada is a pirate haven because it hasn't implemented the U.S. DMCA.

Canadian policy makers would be unwise not to listen to Bill Patry and Bruce Lehman - both of whom know the DMCA for what is.

Let's hope our Canadian "IP Caucus" is paying close attention.

HK

ISPs and Content Providers Playing Footsie....

Anyone who wonders about why ISPs are degrading internet service - except for content that they they like - might want to look at the program for this conference coming up in the UK.

For example:

Day Two of the Summit will kickstart with an ISP-rights holder panel analysing consumer awareness on content online. Summit participants will then explore how an agreed self-regulatory model might work before discussing the feasibility of filtering technologies to prevent unlawful content and maintain clear and running networks, and the viability of other decryption and digital rights technologies.

Meanwhile, in the USA, where some people still believe in antitrust law and an open internet, a bill has been introduced that would treat interference or content-blocking as violations of antitrust law.

HK

Watching Getty Images Watching Canadians

I have become aware of multiple instances recently in which Getty Images has been sending demand letters by e-mail to Canadians whose websites allegedly have unlicensed copies of images allegedly owned by Getty Images. They are probably using some sort of “bot” to find these images.

Assuming that these demands actually emanate from Getty Images, they raise some serious questions.

Getty Images is demanding exorbitant amounts of money for what appear to be trivial infringements at the most in the case of which I am aware, and the demands are far in excess of what any Canadian court would ever likely award even after a trial. The actual damages in terms of the alleged infringer’s profits are likely zero, since the alleged infringers are not selling the images as such or directly profiting in any way from their use. The cost of an actual license in many cases would be quite low and a very small fraction of the demand. Even statutory minimum damages would likely be at the minimum end of the scale, which is $500 per work, which can in turn be reduced to $200 in some cases, and even less still per work where there are many works involved in appropriate circumstances.

The settlement rhetoric I have seen or heard about is extremely formulaic, aggressive and threatening, and the settlement offers are still far beyond what a Court would likely award, absent commercial intent and behaviour by the defendant.

Naturally, it is rarely going to be cost effective for any of the recipients of these letters to retain counsel to actually fight Getty Images in court over a few thousand dollars. This is the nasty, brutish economics of statutory damages at work - as practised most obviously up to now by the RIAA.

But likewise, it may not be cost effective for Getty Images to actually sue someone where there is no real commercial aspect of the alleged infringement and the actual damages recoverable in court may be only a few hundred dollars at most, if properly defended. A bad result in a test case could prove very problematic for Getty Images.

This all raises questions about misuse and abuse of copyright rights. Read Justice Bastarache’s comments in the Supreme Court of Canada's landmark decision in Kraft v. Euro Excellence at para. 98 on this point. While these comments were admittedly obiter dicta, two of his colleagues joined in and the comments as such were not contradicted. The issue of abuse and misuse of copyright rights is now open for serious argument in Canada. . In principle, the copyright misuse doctrine could render any copyright rights unenforceable.

I have spoken to David Fewer, Counsel at the wonderful CIPPIC clinic at the University of Ottawa, who has agreed to keep track of these demands from Getty Images and to consider CIPPIC’s possible involvement. He can be reached at 613-562-5800 ext. 2558. His e-mail is:

dfewer@uottawa.ca

All rights holders are certainly entitled to enforce their legitimate rights in a legitimate way. But they should not be permitted to do so in a manner that is abusive and/or to misuse these rights. This is Canada and such behaviour is likely to prove most unwelcome in Canadian courts, especially after the signal sent by Justice Bastarache.

Policy makers thinking about a Canadian DMCA should take note. If this type of thing is happening now, what may we expect if these types of American enforcement techniques are made even easier and more potent?

Getty Images should know that they, too, are being watched.

HK

And the Winner at WIPO is...Francis Gurry

Francis Gurry of Australia is the next DG.

In a surprisingly quick vote, Francis Gurry won by a close 42 to 41 vote margin.

Mr. Gurry is an excellent choice. He has great experience, credentials and expertise across the board in IP, as well as at WIPO and in other fora.

He is widely respected and will be fair and receptive to all interested parties.

He is also an excellent administrator, having created a very well running arbitration centre and domain name dispute resolution (UDRP) facility at WIPO.

Mr. Gurry has the potential to be a great DG at a time when WIPO needs a great DG and the world needs a restored and respected WIPO.

He faced impressive competition. But in the end, the right decision was taken.

Congratulations to Francis Gurry and to WIPO.

HK

PS - I'd like to think that the one of Mr. Gurry's 42 votes was Canada's from the start.

WIPO Watching

We are getting near the election of a new DG at WIPO. Here's the latest bulletin from IP-Watch.

The Pakistan Daily Times is painting this to be a struggle between Western nations and the Islamic world.

Some diplomats who follow UN activities in Geneva say the WIPO election could reflect a wider struggle for influence in the world body between Western nations and Islamic countries and their allies -- African states, Russia, China and Cuba. ‘North’ countries have 30 seats on the committee, the OIC has 18 and non-Islamic African and Asian states – including China, North Korea and Russia – that normally line up with the OIC in the Rights Council, have 20.

The field is now down to three candidates. Here are their latest reported vote totals:

	Francis Gurry (Australia)	26
	José Graça Aranha (Brazil)	18
	Masood Khan (Pakistan)	13

The election of DG who has broadly based respect and credibility and who has expertise in IP, trade law and the way things happen Geneva and other key places could do much to restore a renewed and respected WIPO. This is crucial in order to ensure decent minimum standards of substantive IP law and enforcement world wide but also to ensure that IP law is not dictated by a few powerful lobbyists in Washington and Brussels.

HK

Speed Debating with the ESA

Stevan Mitchell is VP of IP Policy wtih the Electronic Software Association. He was up in Canada lobbying the "IP caucus" on changes that the ESA thinks Canada should make in Canada's copyright legislation. The Business News Network asked us to debate the issue, which we did yesterday here.

HK

MPAA & Canada

According to IP-Watch:

Mike Robinson, who joined MPAA's anti-piracy department two years ago as vice president of US anti-piracy will now also take over anti-piracy management in Canada as senior vice president of North American anti-piracy operations.

(emphasis added)

The Canadian counterpart to the MPAA is the CMPDA.

HK

Q & A on Net Neutrality from Fordham

Here's an interesting Q & A on net neutrality from Fordham on March 27, 2008. The questioner is Richard Pfohl from CRIA. The question was addressed to Richard Cotton, Executive Vice President and General Counsel, NBC Universal. The question suggests that content owners should bring ISPs "to the table to partner with you to try to control the movement of infringing traffic across their networks":

QUESTION: Richard Pfohl with the Canadian Recording Industry.

A question for Rick Cotton. Rick, you talked about building partnerships with ISPs, but you also talked about how a lot of their business model is effectively built on moving infringing traffic across their networks. Given that that’s how they are making money now, how is it that you bring them to the table to partner with you to try to control the movement of infringing traffic across their networks?

MR. COTTON: I actually don’t believe that at this point in time they are making money by transporting pirated content, quite the reverse. There may have been a point in time when, in terms of attracting broadband customers, it was useful from their point of view to have a lot of free video and other pirated material out on the Internet that people needed faster bandwidth to access. But today, with the amount of traffic in, particularly, pirated video ― taking as much bandwidth as it is, number one; and number two, virtually every ISP is also in the business of selling content to their customers – that is no longer the case. So I think, while we may like to think that it is our persuasive powers that bring them to the table, I think their self-interest has changed.

When I said that there are companies and commercial interests that do profit from weakening of intellectual property laws, they are not the ISPs. There are companies whose business model is enhanced by virtue of being able to provide their customers access to any and all content. But it’s not the ISPs.

Could content owner pressure to "partner" be a factor in the practice of ISP "throttling" and the emerging and escalating net neutrality debate?

Note: The above transcript excerpt is subject to editing and correction and is not in final form.

HK

ACTA Analysis

CIPPIC provides some much needed and, indeed, exemplary analysis of the mysterious ACTA (anti-counterfeiting) initiative being led by the USA.

We all deplore counterfeiting. But how many dolphins will be caught in America's anti-counterfeiting net?

HK