IP & THE ECONOMY - Never Allow a Crisis to Go to Waste

Most governments are now taking decisive steps towards decisions on and implementation of major stimulus/investment packages to rescue, resuscitate and even reinvent national and international economies. Canada, apparently, is going about this in its own way, with no such decisions yet announced. In Canada, things are actually getting “curiouser and curiouser” as we head towards a political crisis.

However, following Rahm Emanuel's widely reported maxim that “Rule one: Never allow a crisis to go to waste...They are opportunities to do big things”, here are some bold ideas that would probably never fly or even be seriously considered in normal times in Canada about using IP and IP policy to help fix up the economy. Some of these would require legislation or regulations. Some would not and would only require sufficient leadership, will and skill at the political level - which are not necessarily any easier to come by:

1. A real and really “high speed” (> 200km/h and preferably 300 km/h) train system from Windsor to Quebec, including Ottawa, Edmonton to Calgary, Vancouver to Seattle and maybe even Montreal and/or Toronto to Boston and/or New York. This is a huge undertaking, to be sure, and was rejected by a previous government as recently as 2002. However, that was then and now is now. It is long overdue and has been studied many times over and had several false starts. This would be an űber IP intensive project, if Canada were to make a commitment to take the opportunity to push the technology beyond what even far smaller countries and economies have used for a long time and go for state of the art. This would:
a. Help Canada to catch up with and hopefully leap beyond the USA, Europe, Japan, China, Russia, Finland, Norway Korea and South Africa where high speed trains have long since proven to be an essential and bountiful investment. Even Russia, which has a very “cold climate” and notorious economic, political and technological baggage, has scheduled trains that do better than 200 km/h. Canada is the only G8 country without high speed rail. And we are behind several small and developing countries, some of which have very cold climates.
b. Provide countless high tech R&D, engineering, management and other high paying IP related and other white collar jobs in Canada
c. Generate many important patents
d. Provide many skilled manufacturing jobs in Canada
e. Replace many lost skilled jobs in the automotive and manufacturing sector in Windsor, Oshawa, and other depressed points right along the main rail route, such Prescott, Cornwall, etc.
f. Provide many semi-skilled labour jobs that would be far more productive than filling potholes and patching bridges, which should be done anyway as basic maintenance - but is simply a necessity and hardly a visionary investment that would constitute an FDR “New Deal” order of magnitude stimulus.
g. Reduce pollution and save energy
h. Stimulate commerce and tourism in Canada’s business and cultural cores
i. Enable Canada to develop leading edge technology for cold climate high speed rail transportation - which could be sold to other countries
j. Teach a major and essential competitive lesson to Air Canada, which sorely needs improvement.

2. Provide a tax break, like Ireland, to artists though reduced or eliminated taxes on copyright royalties. This would:
a. Relieve that public purse, at least to some degree, of its obligation (as seen by most current governments outside of Canada) to provide direct subsidies
b. Encourage successful Canadian start to return home or remain at home
c. Stimulate artistic activity in Canada, which has a huge multiplier effect throughout the economy.

3. Reform the patented medicines regime so as to:
a. Stimulate more actual R&D in Canada
b. Result in lower drug prices in Canada - both for patented and generic drugs
c. Reduce the immense amount of litigation that benefits lawyers but not consumers and is tying up the federal court system
d. Allow the Federal Court and Federal Court of Appeal to get back to more productive work.

4. Reform the copyright collectives and Copyright Board regime (though which almost $500 million a year now flows) so as to ensure that:
a. Canada has smarter and more efficient collectives than other countries, and not simply more and more inefficient collectives than any other country
b. Canadian collectives serve the interests of their members and not just their managers, lawyers and consultants
c. Canada’s Copyright Board - the largest such tribunal anywhere - holds hearings and renders decisions sooner
d. The costs of objecting to copyright tariffs are more affordable
e. Copyright Board decision are not unreasonably retroactive.

5. Revive competition law and enforcement in Canada so as to ensure that:
a. Canada’s ISPs do not throttle everything from bandwidth to overall innovation due to vertical integration, conflicts of interest and lack of antitrust enforcement
b. Restart serious oversight and enforcement at the Competition Bureau and move beyond the Bureau’s apparent attitude that the mere exercise of IP rights will almost always be efficiency enhancing and rarely, if ever, should be subject to scrutiny. It is time to recognize, as has Judge Posner and many other great jurists and economists , that IP rights can be and are frequently leveraged well beyond the legitimate economic interests of owners and can become harmful to economic efficiency
c. Ensure that the CRTC better serves the public interest, if necessary, through better legislation
d. Canada has competition and innovation in wireless and ISP technology, instead of allowing the CRTC and Competition Bureau to bless a duopolistic regime that has put Canada behind countless other countries in terms of cost and quality of service.

6. Protect Canadian consumers through:
a. Anti-spam legislation
b. Serious do not call legislation and not the current “do no hesitate to call” regime, as Michael Geist calls it
c. Clarification of copyright law to ensure that parallel imports of products not themselves protected by copyright cannot be prevented and free trade thereby seriously compromised by means of a paper exercise involving the assignment of copyright in some element of a package or label or logo, which is a possibility touted by some law firms since the Supreme Court of Canada’s 2007 Kraft decision.
d. Balanced copyright reform that will expand users' rights, protect consumers from excessive DRM and TPM, eliminate statutory damages against individuals and non profit institutions for private activity and increase them for real commercial piracy.

7. Ensure that the billion dollar plus a year subsidy to the CBC is used for the purpose intended in the Broadcasting Act and not for the purpose of embarrassing, incompetent and unnecessary attempts to compete with commercial radio and television, which will, incidentally, result in additional payments of millions of dollars a year in additional royalties to the commercial music industry at taxpayers' expense. This does not mean privatizing the CBC, but rather fixing it from the top down.

Will any of the above see the light of day? I doubt it - but these are strange times and Canada should “never allow a crisis to go to waste.”

HK

Sir Hugh Laddie 1946-2008

(UCL & Telegraph)

Sir Hugh Laddie has died, following an illness that he fought as only he could. This is devastating news for those of us who knew him as a friend. This is a staggering loss for those who care about the future of an intellectual property legal system that would serve the public interest.

He was a great judge, and took the rare step - especially in the UK - of stepping down from the bench in order to get back into the fray of practice and academia, where he worked right to the end.

His contribution to intellectual property law was astonishing by any measure, but especially prodigious given his all too brief life. It was he as a young barrister at the age of 29 who developed the remedy known as the "Anton Piller order" and won the landmark appellate ruling in a judgment written by Lord Denning confirming its historic place in legal history [1975] EWCA Civ 12). His treatise on copyright law is the finest of its kind in the world - blending authoritative erudition with focussed and frank comment where needed. We need a new edition, but he will now not be here to give it to us.

He had immense humour and courage, which he manifested every year at the Fordham conference in his criticisms of the USA, the ECJ, and any other government, institution, scholar or jurist with which he disagreed on a matter of principle.

For example, he pointed out in the Times of London recently about the USA that:

“Of course there is counterfeiting in China, but the same goes on in the US and Europe. Pro rata, the biggest source of pirated computer software in the world in the US.”

At the moment (Sunday morning, November 30, 2008), the most current source of information about Sir Hugh and his life is at the IPKat blog,

His brave and brilliant insight is reflected in some of my favourite quotes from him, in his address on the death of another great English copyright scholar, Steven Stewart, Q.C., e.g.

The [UK] Act of 1911 was a timid little creature. It contained a mere 37 sections. Some believe it was the best Copyright Act we ever had. The 1956 Act was a formidable affair. It contained 57 Sections. It held sway during a period in which copyright legislation burgeoned. But the 1988 Act puts all of this to shame. It contains over 300 sections, about 280 of which relate to copyright and its new offspring, design right. The increase in size cannot be attributed merely to a trend toward verbosity in modern legislation, although there certainly is some of that present in the 1988 Act. To a large extent, it reflects the spread and creation of new copyright-type rights...

You can libel a dead author to your heart's content, but if you want to honour him by publishing a commemorative edition of his letters, 50, 60 or 69 years after his death, you will infringe copyright, you shall have to pay exemplary damages and... you may be prosecuted".

(address on the death sf Steven Stewart, Q.C., Copyright: Over Strength, Over-Regulated, Over-Rated?, [1996] EIPR 253

These were bold words for a then recently appointed judge of the High Court, but Sir Hugh was bold hero in the intellectual property firmament. He was a shining and valiant knight in every best sense of the word. May his memory be a blessing.

He loved fly fishing, grand opera and, above all, his wonderful family, to whom I extend my deepest sympathies.

This is a profoundly sad day.

PS - The Telegraph has published an obituary. According to it, Sir Hugh later described his invention of the Anton Piller order as a Frankenstein's monster that went far beyond his original design brief.

PS - a very moving collection of tributes from Law Lords, law students and many others can be found on the UCL site here.

PS - The Times obituary is here.

HK

Getty's Antics and Tactics in the UK

From The Guardian, Nov. 27, 2008:

Is a picture really worth £1,000?
A church and small businesses are just some of those accusing picture agencies of using heavy-handed tactics when pursuing payment

A good story on how victims of Getty and others are fighting back in the UK..

HK

Conviction in MySpace impersonation/suicide case

NY Times reports:

LOS ANGELES — A federal jury here issued what legal experts said was the country’s first cyberbullying verdict Wednesday, convicting a Missouri woman of three misdemeanor charges of computer fraud for her involvement in creating a phony account on MySpace to trick a teenager, who later committed suicide.

This is not a copyright case - but is a very important cyberlaw case because it involves the question of whether a federal statute imposing criminal penalties aimed at combatting computer crimes can be used to prosecute what were arguably only abuses of a user agreement on a social networking site (MySpace).

It will be recalled that a teenage girl, Megan Meirer, hanged herself after being bullied and tricked by a middle aged woman named Lori Drew who impersonated a fictitious teenage boy named "Josh Evans" on MySpace.

It sounds like a bad horror movie. But its for real.

Question - as my wonderful torts professor Harry Glasbeek and many others have always asked - do hard cases make bad law?

HK

Dr. Seuss or Dr. Sues?

It is reported that:

The city of Louisville is scrapping plans to use the iconic Dr. Seuss village and characters as part of its annual Christmas display after receiving a cease and desist letter from Dr. Seuss Enterprises.

HT to the The Hollywood Reporter.

HK

Adequacy of Reasons in CRTC Throttling Decision?

A question that may arise about the CRTC decision is whether - irrespective of the conclusions - it meets the test of “adequacy” of the reasons. Despite its 80 paragraphs, the decision is arguably rather short on reasoning with respect to some of its main and most controversial conclusions.

As the Federal Court of Appeal ("FCA") said about the Copyright Board a couple of years ago:

[11] “Adequacy” is to be assessed in light of the functions performed by reasons: enhancing the quality of decisions, assuring the parties that their submissions have been considered, enabling the decision to be subject to a meaningful judicial review, and providing future guidance to regulates: see VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A) at paras. 17-22. Equally important, the adequacy of the reasons must be assessed in context, including the agency’s record, the issues to which the reasons relate, and the scope of the agency’s expertise.
...

[15] The Board’s reasons are very thin. Nor could counsel for SOCAN or NRCC refer us to anything in the evidence that would explain how the Board arrived at the 10-15% range. Indeed, as the Board’s reasons indicate, the parties had not adduced evidence directly bearing on the quantification of the amount of the undervaluation. In effect, counsel argued that the Board was entitled to use its expertise to assess the evidence as whole and that it was not required to explain how it translated the evidence of undervaluation into a percentage.

[16] The Board is entitled to the greatest deference in the exercise of its discretion to set a rate and, accordingly, the discretionary decisions lying at the heart of its expertise are reviewable only for patent unreasonableness. However, it must explain the basis of its decisions in a manner that enables the Court on judicial review to determine on the basis of the reasons, read in context, whether the decision was rationally supportable. When an administrative tribunal's decision is reviewable on a standard of reasonableness, its reasons are the central focus of a judicial review: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at paras. 48-9, 54-5.

[17] In my view, it was not sufficient in the circumstances of this case for the Board to justify its quantification of the undervaluation by merely referring to the evidence taken as a whole. It is not enough to say in effect: "We are the experts. This is the figure: trust us." The Board's reasons on this issue served neither to facilitate a meaningful judicial review, nor to provide future guidance for regulatees.

In fact, following this 2006 decision and the 2008 decision of the FCA that quashed the Board's decision to hold a hearing on an iPod "tax" (actually, levy), the Honourable Justice William J. Vancise, Chairman of the Copyright Board of Canada, has now written at length in a paper given at the 2008 Fordham conference on the issue of adequacy of reasons in a paper entitled REASONS – BECAUSE I SAID SO – NOT GOOD ENOUGH - BUT WHAT IS?

HK

eBay "PowerSeller" data is "both here and there"

In a decision that is bound to resound in realms of income tax, copyright, privacy, defamation, e-commerce generally, GST/PST/HST collection and just about anything else in the law that involves the internet, the Federal Court of Appeal in a decision dated November 7, 2008 has upheld a decision of Justice Hughes of the Federal Court that requires eBay Canada to disclose the identity to the Canadian income tax collectors of Canadian eBay “PowerSellers”, where that info is stored on US computers but can be readily downloaded by the a Canadian entity under the Court’s jurisdiction - i.e. eBay Canada.

EBay Canada is part of a worldwide network of subsidiaries of eBay Inc., a US company. In fact, eBay Canada is a subsidiary of eBay AG, a Swiss subsidiary of the American eBay. There are no eBay servers in Canada.

In the words of the FCA:

4] In my view, Justice Hughes made no reversible error in concluding on the facts before him that the information sought was not “foreign-based information”; even though stored on servers outside Canada, it was also located in Canada because of its ready accessibility to and use by the appellants. Consequently, it was open to the Minister to seek its production by a requirement imposed on the appellants under section 231.2, without regard to any possible limitations on those powers flowing from the presence of section 231.6. Since the Judge properly authorized the imposition of the requirement under section 231.2, I would dismiss the appeal.

(emphasis added)

Some questions now will be asked:
• When will a multinational really need to have a Canadian subsidiary if it doesn't need a "bricks and mortar" presence in Canada?
• What effect will this decision have on future decisions of multinationals to have a legal presence in Canada and thereby be easily subject to Canadian law?
• Extraterritoriality is great stuff and will sometimes serve the interests of Canadian justice where there is a “real and substantial” connection - but given that what goes around tends to come around - how far should Canada go down this road?
• How will this decision affect other areas of law?

Just asking - no answers yet.

Not surprisingly, there are numerous references to the Supremes’ 2004 SOCAN Tariff 22 Music on the Internet decision, which extended the concept of extraterritorial application of the law in the internet age.

Will leave to appeal to the Supremes be sought in the eBay case? Will there be interveners?

Justice Hughes suggests the potential reach and importance of the issue when he states at para. 17 of his judgment that:

[17] The old maxim that taxing statutes are to be strictly construed must give way to the modern approach in interpretation of statutes generally which is to construe legislation reasonably, having regard to its object and purpose.

This is both profound and provocative. If information can be “both here and there” and more readily subject to Canadian jurisdiction, what impact will this have on other litigation in other arenas? Should the internet change fundamental values in the law, including principles of statutory interpretation, such the strict construction of statutes dealing with tax, criminal, competition and - yes - copyright law? Does Mr. Justice Hughes’ decision, as upheld, do this?

And what if eBay does not seek leave to appeal, or leave is sought but declined? Then we shall have many unanswered questions.

It is notable that, in keeping with the importance and public interest of this case, the Courts moved very quickly. Mr. Justice Hughes heard the case on September 13, 2007 and rendered an 18 page partial judgment five days later. Justice Hughes’ final judgment was delayed on consent by about five months only because of a pending relevant judgment from the Federal Court of Appeal as to whether the Minister must show that there exists “a genuine and serious inquiry.” The FCA said that the Minister did not and Justice Hughes followed that ruling, but found that, even if this were to be the test, the Minister would have passed it. So the subsequent decision did not affect Justice Hughes’ original “partial” judgment.

The Federal Court of Appeal heard arguments on October 8, 2008 and delivered a 28 page judgment 30 days later on November 7, 2008 written by Justice Evans Thus, the process took just 14 months from first hearing in the Federal Court to final judgment by the Federal Court of Appeal - and might even have been several months shorter but for the unusual step of waiting for another relevant appellate judgment and an unsuccessful stay application by eBay on the way resulting in a 17 page judgment.

Both the Federal Court and Federal Court of Appeal are very fast and decisive these days in any event and particularly when necessary. This is very useful and productive for all concerned - and especially the public.

HK

CRTC on Throttling - Round 1 to Bell

Here it is:

	The Canadian Association of Internet Providers' application regarding Bell Canada's traffic shaping of its wholesale Gateway Access Service
	Reference: 8622-C51-200805153
	In this Decision, the Commission denies the Part VII application by the Canadian Association of Internet Providers requesting that the Commission order Bell Canada to cease and desist from traffic shaping of its wholesale Asymmetric Digital Subscriber Line services and, in particular, the wholesale service known as Gateway Access Service (GAS).
	The Commission's determinations in this Decision relate solely to Bell Canada's traffic-shaping practices in relation to its wholesale GAS, and are based on the evidence filed in this proceeding.
	The Commission notes that parties to this proceeding have raised concerns related to existing and emerging Internet traffic management practices that are beyond the scope of this proceeding. In light of the importance of these concerns, in a Public Notice issued today, the Commission initiates a proceeding to review the current and potential Internet traffic management practices of Internet service providers with respect to both retail and wholesale services. The process for this further proceeding, which will include an oral public hearing, is outlined in Telecom Public Notice 2008-19.

Here's the full text.

PS - In a rather unusual development, the Vice Chairman of Telecommunications at the CRTC, Len Katz, has extensively defended the decision in an interview with CBC here.

This decision was rendered in 7.5 months from the date the application was filed on April 3, 2008. In the meantime, there was an interim ruling. Much of the record can be seen here.

HK

CRTC Net Neutraltiy and Throttling Decision Tomorrow

Let's be cautiously optimistic about the decision expected tomorrow. The Chairman of the CRTC - Konrad Von Finckenstein - was formerly the Commissioner of Competition and a judge in the Federal Court. He has never been afraid of controversy - after all, he wrote the famous BMG decision that effectively stopped the file sharing lawsuits against individuals in Canada by protecting their privacy. That decision was essentially upheld in the Federal Court of Appeal. See my analysis here. Disclosure - I was involved.

The Competition Bureau is currently apparently not interested in doing anything about these types of issues. So maybe - just maybe - the CRTC will step up to the plate now and hit a home run.

A little inter agency competition is good for consumers. That may explain why the USA is way better off than Canada in matters having to with wireless and internet service and, indeed, net neutrality. The USA has the FCC, DOJ, and the FTC to look into these types of issues.

This question could quickly cross over into the copyright arena - because some ISPs have so many conflicting agendas these days that the copyright rights of users are seriously imperilled - especially if Canada ends up with protection for and not from DRM and TPM.

Anyway, the CBC has a good analysis of the current state of play here, which suggests, as we all know, that the war won't end one way or the other tomorrow morning.

HK

Speech from the Throne on Competition, Copyright and Trade

From the Speech from the Throne, promises on competition, copyright and trade:

Our Government will also expand the opportunities for Canadian firms to benefit from foreign investment and knowledge, while taking steps to safeguard consumers and our national security. Our Government will proceed with legislation to modernize our competition and investment laws, implementing many of the recommendations of the Competition Policy Review Panel.

Cultural creativity and innovation are vital not only to a lively Canadian cultural life, but also to Canada’s economic future. Our Government will proceed with legislation to modernize Canada’s copyright laws and ensure stronger protection for intellectual property.

Both investment and trade matter to Canada’s prosperity. Our Government is committed to seeking out new opportunities for Canadians and to promoting global prosperity through free trade. It will work with the new administration in the United States in addressing shared challenges, especially during the current economic downturn, and seek opportunities to enhance North American competitiveness. New trade agreements will be pursued in Asia and the Americas, as well as with the European Union, to open markets for Canadian firms. Our Government will proceed with legislation to ratify the results of trade negotiations that have been concluded with the European Free Trade Association, Peru, Colombia and Jordan.

Canada’s International Development Strategy in the Conservative Era: Staying the Course or Charting a New Path?

Couchiching Ottawa Round Table

Canada’s International Development Strategy
in the Conservative Era:
Staying the Course or Charting a New Path?

Co-sponsored by Macera and Jarzyna, LLP

Thursday, November 20, 2008
7:00–9:30 pm
Minto Suite Hotel
185 Lyon Street
Ottawa

The first term of Prime Minister Harper’s minority government was marked by uncertainty over the future direction of Canada’s approach to official development assistance (ODA). Aside from pronouncements on Canada’s renewed focus on the Americas, little concrete information has surfaced over how this will affect, and has affected, the nature of Canada’s engagement with the rest of the developing world. Now into its second term, the Conservative government is under pressure to clarify its approach. While legislation has been passed that ensures Canada’s ODA be committed to reducing poverty, it is unclear where these efforts will be focused, both geographically and thematically. Furthermore, given the current context of global economic uncertainty, it is also unclear whether Canada will tighten its belt and defer planned increases in ODA or continue them as planned. Lastly, with a recent commitment to pull the Canadian Forces out of a combat role in Afghanistan by 2011, will humanitarian assistance be increased to help fill the gap?

To help guide interested participants through this fog and lead the debate on possible future directions for Canada’s foreign assistance strategy, Dr. Ian Smillie will serve as the keynote discussant during this roundtable event. Dr. Smillie has 30 years of experience in the field of international development as a programmer, evaluator, and writer. He has managed large development enterprises in Canada, Africa, and Asia, was a founder of the Canadian development NGO Inter Pares and was director of one of Canada's largest NGOs, CUSO. As consultant to a wide range of governmental and non-governmental organizations for the past 15 years, he has been involved in a range of development initiatives in South Asia and Africa. He has written extensively on various aspects of development, including a piece in the September edition of the Literary Review of Canada on humanitarian relief.

A small participation fee of $20 for adults and $15 for students covers appetizers and venue expenses. Refreshments will also be available through a cash bar.

Call 416-642-6374, 866-647-6374, e-mail couch@couch.ca, or register online using our secure online registration form. The deadline is 5 pm on Monday, November 17.

HOLD THE DATE!

The 78th annual Couchiching Conference: August 6–9, 2009, Geneva Park, Ontario. Visit our website regularly for updates.

If you're not on our mailing list already, get on it! Call us at 416-642-6374, 866-647-6374, or email couch@couch.ca. We promise never to give your address out to anyone nor will we send you mailings unrelated to the Couchiching Institute on Public Affairs.

Irving Brecher 1914-2008 - Writer and Fighter

A great behind the scenes figure in American film and TV has died at the age of 94. According to the New York Times:

Irving Brecher was born in the Bronx on Jan. 17, 1914, and he grew up in Yonkers. At 19, after a brief stint covering high school sports for a local newspaper, he took a job as an usher and ticket taker at a Manhattan movie theater, where he learned from a critic for Variety that he could earn money writing jokes for comedians. Knowing of Milton Berle’s reputation as joke-pilferer, he placed an ad in Variety, reading, in part: “Positively Berle-proof gags. So bad not even Milton will steal them.”

He worked with Groucho Marx, Milton Berle, Judy Garland and many other legendary figures.

Brecher was a fighter for writers, and was active even at the age of 93 in the writers' strike of 2007.

This is the kind of person that the copyright system needs to protect. The American system is amongst the worst in the world in this respect, with its notorious "work for hire" doctrine that essentially deprives many creators in the film and television industry of their full copyright entitlement by deeming the employer, and not the employee, to be the author - even if that person is a freelancer. Naturally, most writers in Hollywood, New York and elsewhere in the USA don't have the bargaining clout to get past the definition of "work for hire" in Section 101 of the US Act.

A few years ago, the RIAA succeeded in sneaking though an amendment that would have dragged sound recordings into this definition. According to a 2000 Salon aricle:

Last November, acting at the RIAA's request, Mitch Glazier, then chief counsel for Congress' copyright subcommittee, inserted the "sound recording" amendment to an unrelated bill. (The bill in question, the Satellite Home Viewer Improvement Act, had been green-lighted for safe passage through Congress.) The change effectively made all new commercial cassettes and CDs -- from Britney Spears to Slipknot, from Eminem to Andrea Bocelli -- a new category qualifying as work for hire.

No hearings were held, no public debate took place and no member of Congress sponsored the act. Glazier, who now works for the RIAA, consulted only a handful of congressional assistants last fall. He was able to make the change because he explained the alteration was non-controversial and technical in nature.

The the credit of the American system, but not the RIAA, the amendment was quickly repealed when people found out what had happened.

But back to Mr. Brecher. A fascinating figure from a bygone and much more creative era has passed away. May his memory be a blessing.

HK

The Politics of Antitrust Enforcement

The respected journalist and commentator Declan McCullagh has a provocative piece in CNET today about Microsoft's role in the non-deal between between Google and Yahoo, as well as some of the ironic politics involved and some prognostications for the post Bush era.

HK

WIPO SCCR Meeting Geneva November 3-7, 2008 reports

Here's the Chairman's Report.

Here are Jamie Love's KEI blogs.

HK

Judge Patel on Copyright

Judge Marilyn Hall Patel, who is the American judge who shut down the original Napster, and who is very highly respected has just given an important talk at Fordham on November 10, 2008 in the prestigious Brace Lecture series.

She proposes a very utopian grand compulsory licensing scheme that would entail a "new public/private organization with authority over the licensing and enforcement of copyright."

Here's a report in Wired.

HK

Update on Getty Images

Getty Images is still threatening people, so it seems from comments that continue to come in on my earlier posting on Watching Getty Images Watching Canadians.

Here's an update to November 11, 2008.

To date, Getty Images has still launched only one copyright infringement action in the Federal Court in Canada, according to the Federal Court’s website as of November 11, 2008. That was on March 28, 2008. It is possible that it has sued in one or more provincial courts, but this would not make a lot of sense if it is planning a cookie cutter approach.

Masterfile, another stock photo company, has filed several actions in the Federal Court, many of them discontinued, which suggests that there may have been a settlement in such instances. I haven’t actually looked at any of the files, since details are not available online. Masterfile filed several statements of claim on January 22, 2008. As of November 11, 2008 there is nothing more recent on the Federal Court website.

An American law firm has posted a couple of comments on my blog looking for business from recipients of letters from Getty.

I have taken these posts down because Canadians may not be aware that an American law firm cannot act for them in a Canadian court. Furthermore, Canadian and American copyright law differ in many respects.

Canadians who are looking for advice should contact David Fewer at the wonderful Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (“CIPPIC”) at the University of Ottawa

His phone number is 613-562-5800 ext. 2558.

Canadians should be aware of the provisions regarding statutory minimum damages. These can range as high as $20,000 per infringed image. But more importantly, a judge can lower the amount to as little as $200 per infringed image, or even less if there are multiple images involved. Here’s the provision in the Copyright Act:

Statutory damages


38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.


Where defendant unaware of infringement


(2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.


Special case


(3) Where


(a) there is more than one work or other subject-matter in a single medium, and


(b) the awarding of even the minimum amount referred to in subsection (1) or (2) would result in a total award that, in the court's opinion, is grossly out of proportion to the infringement, the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.


HK

Apotex v. Sanofi - Canadian Supreme Court Decision

Last week on November 6, 2008, the Supreme Court of Canada delivered it judgment in an important patent case concerning "selection patents." The appeal was heard on April 16, 2008.

My colleague, Susan Beaubien, has a very useful analysis of the decision here.

HK

WIPO Copyright Activity

The week long SCCR meeting at WIPO has just concluded and William New reports on it in some detail here.

The proposed broadcasters' rights treaty is still on the table, as is the propsoed audiovisual performances treaty.

The good news is that there appears to be solid interest in exceptions and limitations, and a possible treaty concerning the rights and needs of blind persons.

The latter is a concrete project that could have a positive outcome in a finite time, and would be a good example of what WIPO can do well and why a revitalized WIPO is essential to a balanced international IP system.

HK

Does Apple Compete with IBM?

Does Apple compete with IBM?

According to a former IBM employee recently hired by Apple:

"To the best of my knowledge, IBM does not design, manufacture or market consumer electronic products," says Papermaster, in a court document filed Thursday. "Instead, IBM focuses on high-performance business systems such as information technology infrastructure, servers and information storage products, and operating systems software," Papermaster notes.

"Apple, on the other hand, is in the business of designing, manufacturing and marketing consumer-oriented hardware and related products," says Papermaster, in documents filed in U.S. District Court in Manhattan.

A district court in the USA doesn't agree.
Doubtless, more to come.

HK

What Happened to SNL in Canada?

It now seems that you can't get there from here when it comes to getting from Canada to Saturday Night Live on the Web.

One gets an error message related to "location." Let's hope it's just a temporary technical glitch.

But somehow, I sense overly zealous copyright lawyering and geolocation software at work here.

Too bad, so sad.

HK

PS - Hat tip to Michael Geist - Canwest Global TV seems to have locked up the keys to SNL online for Canadians. But we can't get the same material as our American friends and you have to suffer through third party ads....See this.

Thank goodness this wasn't in place before the US election.

Yet another demonstration of how the Internet is going backwards to old business models, such as cable TV.

Constitutional Challenge to RIAA's statutory damage claims...

The well known Harvard professor Charlie Nesson is leading the charge on a challenge to the constitutionality of the statutory damage provisions in the US Copyright Act.

Here's his latest filing and a brief commentary.

HK

The Obama Effect on IP

IP-Watch has a good analysis of the likely direction of the Obama administration here. IP-Watch also speculates on some Obama appointments here.

Although a Democratic administration is likely to be very sympathetic to the wishes of IP owners and rightly so, there is reason to hope that the Obama administration will take a more nuanced approach than we've seen in the past as a result of such factors as:

• Obama's commitment to affordable health care
• Obama's commitment to improving child education in order to improve competitiveness
  
• Obama's experience as an academic
• the very Internet savvy campaign he ran
• the need to balance traditional Democrat protectionist instincts with the pressing need to to restore America's lead in high tech R&D and even manufacturing
  
• the need for the USA to regain respect internationally by informed policy leadership and not by brute force trade hegemony
• the need to satisfy likely great expectations from Africa and developing countries in other regions
  
• more intellectual rigor and honesty in separating bogus terrorism and exaggerated counterfeiting issues from real trade and IP issues.
  

It's worth noting that Bill Clinton's IP point man, Bruce Lehman, has stated that the DMCA "didn't work out very well" under the last Democratic administration. Hopefully, Bruce's soul searching and public confessions will impart valuable wisdom to the new Democratic White House, whether or not he has part to play in it.

As I say, and without being political, there is now indeed plenty of reason to hope.




HK