Bill C-61 and the [posssible] Election

Don Martin - a columnist who is regarded by many as being very sympathetic to the Conservative Government and well informed on how it operates - has a provocative and not very favourable comment today on the rumoured imminent election.

Among other points, he praises the productivity of this allegedly "dysfunctional" Parliament and then goes on to bemoan the unfinished and important business that would be left on the table if a snap election is called. Guess which item is first on his list?

Of course the sudden demise of the 39th Parliament will leave dozens of important initiatives stillborn, including legislation dealing with copyright protection, food and product safety, youth crime, a national drug strategy and identity theft.

But unfinished business happens whenever a snap election is called.

(emphasis added)

This is a very interesting short list of priorities.

But, then we do live in interesting times.

HK

Made Worse in Canada

"Made in Canada" or "Made Worse in Canada"?

The phrase I coined on June 12, 2008 - the day that Bill C-61 was introduced - seems to be virally growing and is once again being mashed up online - now with a clever video no less.

HK

CLA Advocacy Material on Bill C-61

The CLA has posted some advocacy material on Bill C-61, available here.

Although the suggested letter contains some good points, I'm frankly puzzled by what is meant by the term "Technical Prevention Measures" and what the CLA means by:

New copyright legislation should punish copyright-infringing behaviour, but should prohibit the circumvention of technological prevention measures for legal purposes.

HK

PS - the site now says:

Prohibitions against the circumvention of digital locks should be limited to acts of copyright infringement, but should not prohibit the circumvention of technological prevention measures for legal purposes.

This makes more sense, but I still don't know what is meant by technical "prevention" [sic?] measures.

Another suggestion would be to update the CLA's copyright infromation page
which includes some obsolete and less than useful references, and does not include such useful material as Laura Murray's and Sam Trosow's excellent book, which is the best single source book on copyright for librarians at the present time.

Troubles in Brussels

The often playful IPKat has a very serious and gloomy report on Bernt Hugenhotltz' open letter to Dr. Jose Manuel Barroso, President of the European Commission.

Prof. Hugenholtz is understandably concerned that the Commission has ignored the work that it had commissioned from his exemplary institute, for example in the course of its controversial recommendation in July to extend the term of protection for sound recordings to 95 years. He states:

As you are certainly aware, one of the aims of the `Better Regulation' policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission's recent Intellectual Property package does not live up to this ambition. Indeed, the Commission's obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.

The power of lobbyists to override the advice of professional public servants and academics of immense integrity and independence, such as Bernt Hugenholtz, is indeed very regrettable and is, regrettably, not restricted to Europe.

Prof. Hugenholtz is to be commended for standing up for the work of his colleagues and for matters of principle at a time when principled and professional analysis in IP by governments seems increasingly like a quaint memory.

HK

Copyright as Olympic Censorship Tool - Updated

Slashdot has a story about how the IOC invoked the DMCA to take down a pro-Tibet video that presumably offended it by showing the famous five rings being used as handcuffs or otherwise. The IOC appears to be doing a great job of censoring protest that would offend the Chinese government.

Follow the link to the Vimeo site and watch while you can. Warning - the video shows bloody and maybe even dead bodies.

This is not copyright infringement by any stretch under American case law. YouTube caved and took the video down, even though it could have assumed a minuscule theoretical risk and ignored the clearly baseless and abusive DMCA take down notice. Needless to say, this is disappointing and doesn't augur well for free speech or a "do no evil" approach.

It's clearly unrealistic to expect the protesters to fight back to put the video up - since this could risk exposure to the Chinese authorities. Would a protester in China who wishes to protest the YouTube takedown, be rational in providing, as required, by the DMCA:

The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

I'm sure that the Chinese authorities would be quite interested in this information.

This is what the DMCA is all about. Bill C-61 is not quite as bad in this respect, as it is based upon notice and notice, rather than notice and takedown. This is one of the few positive aspects of Bill C-61. But, the sound recording and film folks may not be content to let it rest that way and may push for the "American way" if the Bill reaches Committee.

UPDATE AUGUST 18, 2008.

Apparently YouTube responded to copious criticism, including from your's truly, and questioned the IOC about this. The IOC relented and withdrew its takedown notice. This time.

But what about next time? The incident shows the potential for unchecked abuse of an American style notice and take down regime, which certain predictable American dominated trade associations will likely demand if the Canadian Bill C-61 moves forward as is.

HK

The End of William Patry's Blog

Yesterday was a dark day for copyright law, and even bigger issues such as the ability of passionate and informed scholars to use the blogosphere to publish views that some powerful forces may consider to be threatening to their interests. Here's Bill's last post.

Whatever else this means, it is a great loss for those who care about sound, sustainable and balanced copyright law and wish to see it evolve in a well-informed manner and as part of a healthy debate. Here' what I posted on his final blog entry:

Bill:

Yours was clearly the leading American and international copyright blog by any measure. Unfortunately, these are not easy times in which to be scholarly, frank and to hold even perfectly reasonable views. You are indeed a “centrist.” You have defended the real purpose of copyright throughout your career. Above all, you have had the courage to hold views, which is an indispensable but increasingly rare quality in the world of scholarship and jurisprudence. It’s no wonder you have an affinity to Judge Posner and former Justice Sir Hugh Laddie.

Many have watched your personal views evolve over the years and agreed with them, or disagreed with them, as the case may be. That is healthy. Your views have always been well informed and impeccably researched. As I said in my review of your treatise, “Mr. Patry's evolution is an important indicator of where copyright law may be going.”

However, there are indeed some very powerful forces who view anyone who holds views critical of their own on such issues as the DMCA or ACTA as an “enemy of the people.” Add to this the results of “public choice” politics and economics and one can understand both your pessimism and your pragmatism.

This cannot have been an easy decision for you. You have clearly invested thousands of hours in this blog in its three splendid years. You should be very proud of it.

Since your critics and those who may try to embarrass you have no doubt already saved whatever nuggets they may attempt with futility to use against you, I hope that you will consider leaving the blog up as an invaluable research archive of these times and as an shining star for those who might take up the torch in the future.

Bravo, Bill.

Sincerely,

Howard Knopf

HK

ACTA Secrecy Concerns Increase

On July 28, 2008 Michael Geist reported in the Toronto Star that:

According to documents obtained under the Access to Information Act and reported here for the first time, the government has been crafting an Intellectual Property and Trade Advisory Group. The initial plans for membership in the group were limited exclusively to 12 government departments and 14 industry lobby groups. These include the Canadian Recording Industry Association, the Canadian Motion Picture and Distributors Association, and the Entertainment Software Association of Canada. [CRIA, CMPDA, ESA]

The early membership lists omit several key industry representatives likely to be affected by ACTA, including telecommunications, technology, and Internet companies. Moreover, there is absolutely no representation of the public interest — no privacy representation despite the obvious privacy implications of the treaty (the Office of the Privacy Commissioner of Canada was not included on the government invitee list), no consumer representation despite the effects on consumer interests, and no civil liberties representation on a treaty that could fundamentally alter Canadian civil rights.

CRIA, CMPDA, and ESA are highly influential American dominated lobbyist groups whose influence can be readily seen in Bill C-61.

Today, the highly regarded Intellectual Property Watch summarizes the current state of secret negotiations:

Sources described the closed-door negotiations which continued this week in Washington, DC as “very special", “unique in its secrecy” and the “first time that industry has been kept in the dark about an agreement of such importance.”

There are persistent rumours - based upon a leaked draft text - that ACTA could not only affect what happens at border crossings (laptop and iPod searches and confiscations?), but what is happening inside ISPs and ordinary people's internet accounts and activity, which could be monitored. This secrecy is very troubling. Moreover, Canada's lack of transparency is excessive compared to other countries - e.g. Canada, unlike the USA, hasn't published stakeholder submissions. This is especially troubling.

HK