Wednesday, December 31, 2008
The Thawing Out of Robert W. Service
There are strange things done in the midnight sun,
By the men who moil for gold;
The Arctic trails have their secret tales
That would make your blood run cold;
The Northern Lights have seen queer sights,
But the queerest they ever did see
Was the night on the marge of Lake Lebarge
I cremated Sam McGee.
One of the nice things about being in Canada is not having to wait another irrational 20 years for such "coming out" events...as must our friends in the UK.
I'm hopeful that the redoubtable Wallace McLean will have a long list of those coming out in Canada on the stroke of midnight December 31, 2008.
Update - it's now January 1, 2009. Here's the whole poem on a cold morning in Canada. Naturally, in deciding whether or not to read or, indeed, copy or do anything else with the following, you should obey the copyright laws of your own country and consult your local copyright statute itself and/or a qualified copyright lawyer. Welcome to the world of copyright in 2009:
The Cremation of Sam McGee
Robert W. Service, 1874-1958
There are strange things done 'neath the midnight sun
By the men who moil for gold.
The arctic trails have their secret tales
That would make your blood run cold.
The northern lights have seen queer sights
But the queerest they ever did see,
Was that night on the marge of Lake LeBarge
When I cremated Sam McGee.
Now Sam McGee was from Tenessee
Where the cotton blooms and blows.
Why he left his home in the south to roam
'round the poles, God only knows.
He was always cold, but the land of gold
Seemed to hold him like a spell,
Though he'd often say in his homely way
That he'd sooner live in Hell.
On a Christmas day we were mushing our way
Over the Dawson trail.
Talk of your cold, through the parka's fold
It stabbed like a driven nail.
If our eyes we'd close, then the lashes froze
'til sometimes we couldn't see.
It wasn't much fun, but the only one
To whimper was Sam McGee.
And that very night while we lay packed tight
In our robes beneath the snow,
And the dogs were fed, and the stars o'er head
Were dancing heel and toe,
He turns to me, and "Cap" says he
"I'll cash in this trip, I guess.
And if I do, I'm asking that you
Won't refuse my last request."
Well, he looked so low that I couldn't say no,
Then he says with a sort of a moan,
"It's the cursed cold, it's got right hold
'til I'm chilled clean through to the bone.
Yet tain't being dead, it's my awful dread
Of an icy grave that pains.
So I want you to swear that foul or fair,
You'll cremate my last remains."
Well, a friend's last need is a thing to heed,
So I swore I would not fail.
We started on at the streak of dawn,
But, God, he looked ghastly pale!
He crouched on the sleigh, and he raved all day
Of his home in Tenessee,
And before nightfall, a corpse was all
That was left of Sam McGee.
There wasn't a breath in that land of death,
And I hurried on, horror stricken.
With a corpse half hid, that I couldn't get rid,
Because of a promise I'd given.
It was lashed to the sleigh, and it seemed to say,
"You may tax your brawn and your brains,
But you promised true, and it's up to you
To cremate these last remains."
Now, a promise made is a debt unpaid,
And the trail has its own stern code.
In the days to come, 'though my lips were dumb,
In my heart, how I cursed the load.
In the long, long night by the lone firelight
While the huskies 'round in a ring
Howled out their woes to the homeless snows
Oh, God, how I loathed the thing.
And every day that quiet clay
Seemed to heavy and heavier grow.
But on I went, though the dogs were spent
And the grub was getting low.
The trail was bad, and I felt half mad,
But I swore I would not give in.
And I'd often sing to the hateful thing
And it harkened with a grin!
Then I came to the marge of Lake LeBarge
And a derelict there lay.
It was choked with ice, but I say in a thrice
It was named the "Alice May".
I looked at it, and I thought a bit,
Then I turned to my frozen chum,
And "This" said I with a sudden cry
"Is my crematorium!"
Some planks I tore from the cabin floor
And lit the boiler fire.
Some coal I found that was lying around
And heaped the fuel higher.
The furnace roared and the flames they soared,
Such a blaze you seldom see.
Then I burrowed a hole in the glowing coal
And I stuffed in Sam McGee.
Then I made a hike, for I didn't like
to hear him sizzle so.
And the heavens scowled and the huskies howled
and the wind began to blow.
It was icy cold, but the hot sweat rolled
down my cheeks, I don't know why.
And the greasy smoke in an inky cloak
went streaking down the sky.
I do not know how long in the snow
I wrestled with grisly fear.
But the stars were out and they danced about
'ere again I ventured near.
I was sick with dread, but I bravely said
"I'll just take a peek inside.
He's probably cooked, it's time I looked."
Then the door I opened wide.
And there sat Sam, looking cold and calm
In the heart of the furnace roar.
He wore a smile you could see a mile,
And he said "Please shut that door!
It's warm in here, but I greatly fear
You'll let in the cold and storm.
Since I left Plumtree, down in Tenessee,
It's the first time I've been warm."
There are strange things done 'neath the midnight sun
By the men who moil for gold.
The arctic trails have their secret tales
That would make your blood run cold.
The northern lights have seen queer sights,
But the queerest they ever did see
Was that night on the marge of Lake LeBarge
I cremated Sam McGee.
Friday, December 19, 2008
Les Miserables - Free At Last?
At the risk of telling tales out of school, it was a hard fight to convince certain officials - and contrary to the wishes of certain lobbyists - to put a limit on the term of of moral rights in Canada when they were introduced in the 1988 amendments. Thankfully, these rights are coterminous with economic rights.
I thank the anonymous person below (whose comment I inadvertently deleted but then manged to restore) who seems to know some details about French moral rights law. I was relying upon the AP report which said:
The court said Friday that Hugo's novel was in the public domain, and Ceresa was therefore free to invent a sequel.This seemed to suggest that it was the public domain status that vitiated the moral rights claim. However, these press reports are often wrong on very important technical aspects. Unfortunately, decisions from France are not easy to find. I invite the commentator to provide a link to the decision, if available, or to the statutory reference.
I still think that Canada was right to put a clear time limit on the moral rights term for closure and certainty purposes. We will no doubt see some outrages - but a moustache on a reproduction of the Mona Lisa doesn't hurt anyone. Without such certainty, we might not have all those wonderful Frankenstein books and movies. Mary Shelley's heirs might have been outraged.
RIAA Abandons Mass Litigation? - The Good and the Bad News
The good news is, presumably, that there will no longer be lawsuits against 12 year old children, dead grandmothers, and teenage transplant patients - although the RIAA apparently reserves its right to sue “people who are particularly heavy file sharers, or who ignore repeated warnings.”
Who knows what “particularly heavy” means - perhaps more than 10 songs? And isn’t “three strikes” all about repeated warnings? But let’s not be too negative at holiday time.
The bad news is that the RIAA is reportedly working on cutting deals with ISPs to invoke a “three strikes” regime against what the record industry considers to be “piracy.”
As the WSJ notes:
The RIAA said it has agreements in principle with some ISPs, but declined to say which ones. But ISPs, which are increasingly cutting content deals of their own with entertainment companies, may have more incentive to work with the music labels now than in previous years.Some ISPs seem to have been burning the candle at many ends for a long time, and the current throttling initiatives may well be part of such an agenda.
So - if the music industry and the ISPs get into bed with each other to invoke such a regime, what would happen?
• Would there be countless wrongful "terminations" based upon the usual litany of mistakes that have surfaced in identifying alleged unloaders over the years - i.e. use of insecure routers and wi-fi, simple incompetence, etc.?
• Would essential VOIP phone service get cut off for people whose lives depend on it?
• Would there be class actions against ISPs in the USA for wrongful termination of service?
• What will the US FCC, FTC and/or DOJ have to say about all this?
One is almost tempted to prefer the known devil, largely because it may be about to go down in flames anyway as a result of several pending American court cases and possibly bring down the excessive aspects of the American statutory damages regime and “making available” doctrine along with it. Maybe this explains the reported change in strategy...
And what could this all mean for Canada, where some ISPs are perhaps getting rather too cozy with the big four CRIA members and no longer seem to care very much about their customers' wishes, since being half of a duopoly means rarely having to say you're sorry?
Tuesday, December 16, 2008
More Copyright Consultations in UK...
(Little Tufty, one of the IPKat bloggers, is keeping an eye on one of the entertainment industry lobbyists who is making a point about exceptions and limitations)
One of the best IP blogs anywhere, the IPKat out of England, is having a small hissy fit about the latest UK government's copyright consultation effort. The bright minds behind this blog are hardly radical outliers in IP. They have quite impeccable pedigrees. Here's a clue to what they are hissing about and why it is making their tails fluff up:
The consultation document, available here (pdf), makes for some quite dull reading (although it is mercifully brief), as it doesn't really say anything of substance. What it does say is the usual guff about "creative industries" being important to the UK economy in the 21st century. What it doesn't say is why these creative industries need copyright terms that will, in many cases, last well into the 22nd century.Anyway, Canadians, too, are presumably free to comment on the big four rather unoriginal questions - to which the IPKat has suggested answers, of course. These questions are:
Q. Does the current system provide the right balance between commercial certainty and the rights of creators and creative artist? Are creative artists sufficiently rewarded/protected through their existing rights?Answers are due by February 9, 2009.
Q. Is our current system too complex, in particular in relation to the licensing of rights, rights clearance and copyright exceptions? Does the legal enforcement framework work in the digital age?
Q. Does the current copyright system provide the right incentives to sustain investment and support creativity? Is this true for both creative artists and commercial rights holders? Is this true for physical and online exploitation? Are those who gain value from content paying for it (on fair and reasonable terms)?
Q. What action, if any, is needed to address issues related to authentication? In considering the rights of creative artists and other rights holders is there a case for differentiation? If so, how might we avoid introducing a further complication in an already complicated world?
Monday, December 15, 2008
Google and Lessig on Net Neutrality
Here's a taste...According to WSJ:
Google Inc. has approached major cable and phone companies that carry Internet traffic with a proposal to create a fast lane for its own content, according to documents reviewed by The Wall Street Journal. Google has traditionally been one of the loudest advocates of equal network access for all content providers.Is the Internet going to become more and more like cable and pay TV?
The developments could test Mr. Obama's professed commitment to network neutrality. "The Internet is perhaps the most open network in history, and we have to keep it that way," he told Google employees a year ago at the company's Mountain View, Calif., campus. "I will take a back seat to no one in my commitment to network neutrality."
But Lawrence Lessig, an Internet law professor at Stanford University and an influential proponent of network neutrality, recently shifted gears by saying at a conference that content providers should be able to pay for faster service. Mr. Lessig, who has known President-elect Barack Obama since their days teaching law at the University of Chicago, has been mentioned as a candidate to head the Federal Communications Commission, which regulates the telecommunications industry.
PS - UPDATE: Google's answer to this can be found here.
Congrats to Paul Schaeffer, C.M.
Hard to believe how time flies. Mazel Tov, Maestro Schaeffer!
Still hip, still cool, still great!
Keep it up...
Gowers on UK Term Extension Capitulation
Here's the whole article in today's Financial Times.
Politicians often do and say silly things when they come into contact with celebrities.
So it was last Thursday when a star-struck Andy Burnham, Britain’s secretary of state for Culture, Media and Sport, showed up for a speech and photo-opportunity with the former lead singer of the Undertones, a punk-pop combo of the 1970s. In addition to the usual pleasantries about Britain’s creative industries, Mr Burnham set out a novel argument about the law of copyright protecting musicians’ work.
UPDATE & PS:
The UK secretary, Mr. Burnham, replies here.
Friday, December 12, 2008
More on Satire and Parody and the Need for Legislation in Canada
I think that Prof. D’Agostino and I agree that parody (she doesn't discuss satire) should be part of the law of fair dealing in Canada, but we disagree on whether to leave this to the courts or whether it should be dealt with by Parliament.
Here is what she actually said about "legislative intervention" on the parody issue in her two recently published papers.
At page 41 of her Canadian Heritage paper, she says:
In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the UK, Gowers recommended that the government should enact a new copyright exception for parody. Before CCH many scholars posited that parodies would be infringing in Canada. Post CCH’s liberal interpretation of the enumerated grounds, it could be argued that “criticism” could now encompass parody. Michelin no longer seems good law. Indeed, parody in the US is not an automatic. Parody still requires analysis of each of the four factors as well as some use of the target to be fair. This can now also be the case in Canada and would likely not require any legislative intervention. (Footnote omitted) (emphasis added)At page 359 of her McGill paper, which I had not seen until now, she says virtually the same thing:
In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the United Kingdom, Gowers recommended that the government enact a new copyright exception for parody. Before CCH, many scholars posited that parodies constitute infringement in Canada. In light of CCH’s liberal interpretation of the enumerated grounds, it may be argued that “criticism” could now encompass parody. Michelin no longer seems to be good law. Indeed, the protection of parody in the United States is not a foregone conclusion: parody still requires analysis of each of the four factors as well as some use of the target to be fair. Now this might also be the case in Canada, without the necessity of legislative intervention. In Canada, the issue may turn on the sufficient acknowledgment requirement (not present for research or private study, nor required in the United States). In the United Kingdom, where the same requirement exists, courts have been flexible in overcoming this hurdle in the case of criticism, review and news reporting. This flexibility or, indeed, dispensation with the acknowledgement requirement should be more warranted for parody. In parody, the link between the original and the parodic twin is often obvious since “the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” (Footnotes omitted) (emphasis added)Prof. D’Agostino seems to prefer more of a soft law approach of “best practices.” Unfortunately, one cannot count on this achieving tangible results in Canadian courts.
She mentions Prof. Peter Jaszi’s work on best practices. I have worked with him over the years and have the highest admiration for him. However, “best practices” initiatives as developed by him and Pat Aufderheide are likely to be more successful in the USA, where fair use is codified only in the most general terms and industry practices are more likely to be accepted by the courts as fair. Indeed, that’s part of the theory and practice of the American system. In Canada, we now have the CCH decision, which follows decades of restrictive literal reading of the mostly very specific and explicit exceptions, of which the “dry erase board” takes the cake. However, as enabling and liberating as CCH seems for users’ rights, it may not permanently throw the door wide open. There are concerted efforts by lobbyists that could result in significantly undoing it, including by some who should know better. Ironically, the efforts of educational community at the management level as exemplified by CMEC and the AUCC could have this result. They don’t seem to get the message from this decision, or if they do, they don’t seem content to rely on it in any possible future litigation.
A “best practices” initiative can’t hurt and may help - as long as any initiative in this respect does not take pressure off the need to legislate. Such "best practices" could be a "complement" to legislation, as Prof. D'Agostino recognizes, but should not be an "alternative" as she also suggests at page 361 of her McGill paper. Such an initiative might provide guidelines for acceptable satire and parody practices, but should not replace legislation needed to enable satire and parody in the first place. Indeed, Prof. D’Agostino is kind enough to give me credit me for an initiative to develop guidelines at page 361 of her McGill paper. This stems from my White Paper on film documentaries from 2006. However, in that same paper, I also explicitly recommended near the top of my list of recommendations a legislative change to establish a satire and parody right. On this issue, I’m taking a “belt and suspenders” approach.
We have had this parody impasse in Canada since the 1996 Michelin decision, which a lot of people believe may have wrong been then and even more wrong now in light of subsequent case law. But it wasn’t clearly wrong and still isn’t clearly wrong. It was a reasoned and lengthy ruling by a highly respected Federal Court judge. It was never appealed. And it’s still the law in Canada, at least in the eyes of Master Donaldson in the BC Supreme Court.
One of these days, we will have a functioning Parliament again. I hope that it does its job by passing clear legislation so that Canada doesn’t stand almost alone amongst comparable countries in rejecting a parody right in the name of copyright law. Even France, which is a civiliste and copyright “maximalist” country allows for parody.
Canada can’t tolerate years of uncertainty and an uncertain outcome if this matter is left to work its way through the development of best practices and further litigation.
Thursday, December 11, 2008
Parody Defence Not Available according to BC Court
This defense was struck out at a very early stage by a BC Supreme Court Master in this ruling that parody was not available as a "fair use" [sic] defense under the Copyright Act, based upon the Michelin decision of 1996. The Master's ruling is being appealed.
Prof. D'Agostno has publshed a lengthy analysis of the SCC's CCH decicsion in which she twice states that, in light of the 2004 CCH judgment from the SCC, the Michelin decision "no longer seems to be good law." Unfortunately, the Courts don't seem to be agreeing with her.
I hope she is right and there is, indeed, recent SCC jurisprudence since her paper boosting freedom of expression in Canada in the defamation context.
But I disagree with her that the CCH decision means that no legislation is necessary. I've published a paper recently entitled "Why Canada Needs Parody Parity and Comedy Comity: Copyright Control of Canadian Humour" in Vol. 20 No. 3 (October 2008) of Les Cahiers De Propriété Intellectuelle in which I said:
I strongly disagree with Prof. D'Agostino's position that we do not need legislative intervention in this instance. It is primarily the responsibility of Parliament, and not individual litigants, to take the necessary steps to provide clear and predictable laws in Canada. The current Bill C-61, for example, would provide a dream list of new, overreaching and unnecessary rights for content owners. Unfortunately, there are no highly paid lobbyists fighting for creators and users who strongly need a satire and parody right in Canada. When Parliament proceeds with copyright revision, a satire and parody right should be included. It would even be justifiable on its own, if a larger package does not proceed in the near future.
Test case litigation is not an answer in this situation. There are major costs risks in seeking a ruling from the Federal Court of Appeal or another appellate court that parody is now included in fair dealing and is therefore a user's right in Canada. While there is reason to hope that this would be the result of such litigation, one cannot count on this being the case. There were serious splits on copyright doctrine that were exposed in the Supreme Court's Kraft decision in 2007.
Moreover, the recent retirement of Justice Bastarache and the imminent appointment of new Justice on the Supreme Court thereby ensure even more post-Kraft unpredictability if the case were to get that far. Furthermore, well and thoroughly fought copyright litigation is quite rare in Canada and there is no guarantee that the "right" case will arise in the foreseeable future. In terms of how it may arise, it may not be necessary to wait for a lawsuit to be launched by an aggrieved rights holder, since pre-emptive litigation is now possible in principle. However, pre-emptive copyright ligation is rare, risky and expensive. In any event, resolution of the parody issues in the Canadian courts at an appellate level will take several years from whenever a test case is started.
The Great Canadian CD Levy Inrease - 2008
Hopefully, Calgary's most currently famous politician, the Right Honourable Stephen Harper, was listening. Or will be.
To paraphrase Mr. Shakespeare, "What's in a name? That which we call a tax by any other name would smell as sweet." Or otherwise. Everyone except the courts calls this levy a tax.
It's future is uncertain. Blank CD sales are declining as the format becomes obsolete. Ironically, this levy increase may hasten the decline of this medium in Canada. The music industry is seriously divided over the future of their own ill conceived creation.
Wednesday, December 10, 2008
Music As Torture- and the Bands Played On
Many musicians are upset about this. Some think it's great.
I blogged about the unpaid royalties a few months ago here and here and here.
I have a new somewhat tongue in cheek suggestion. If the US really wants to ratchet up the pain level, they should try the using the new CBC Radio 2.
For those outside of Canada, that's Canada's highly subsidized once magnificent public radio network that is now being run into the ground.
I'm serious about how painful the "New 2" is to those who care about classical music, culture and professional quality broadcasting. To slightly twist a couple of CBC's undoubtedly expensive new slogans, the "New Two" might well be described as:
Everywhere Music Aches You.
A Music Mix You Won't Hear Anywhere Else - Thank God!
BTW, the estimated advertising costs alone of the launch this very unpopular purge of a noble 7o year tradition are well over $2,000,000 to date. The CBC is refusing ATIP (access to information) requests on this issue.
The additional SOCAN and NRCC royalties that will be generated by all of the additional commercial music that is now being played at the expense of public domain classical music are likely to be several million dollars a year, as I pointed out some months ago here.
Thank goodness we can turn CBC Radio 2 off, as countless hitherto long loyal listeners have done. I can't imagine being forced to listen to it for any length of time.
Trademark Info Corp - Don't Pay These People
At first glance, this document looks like an invoice.
There is NO GOOD REASON for anyone to pay any money to these people. Any Canadian registration is already recorded and can be viewed at the Government of Canada's official website for the Canadian Intellectual Property Office, which is here.
Remember what P.T. Barnum is said to have said - "There's a sucker born every minute."
Tuesday, December 09, 2008
Suggestion for Obama Foreign Policy on IP
Here's the conclusion:
Whoever becomes Obama's U.S. trade representative must re-evaluate our IP foreign policy and reassess how much foreign infringement affects U.S. interests. The USTR should examine whether protecting Hollywood and some established companies is handicapping innovative industries.
Hollywood should direct movies — not trade policy. The USTR shouldn't be pressured to adopt extreme views on copyright, including harsh unbalanced IP enforcement rules in trade agreements, particularly since these policy preferences find little support in economic data.
We need a balanced IP agenda that shows other nations what's good about American culture, yet respects theirs, and that doesn't discriminate against the Internet. We won't have a 21st century IP policy until we question why national security and foreign trade interests are taking a back seat to securing profits for some well-connected companies.
The author is Ed Black, who s president and CEO of the Computer & Communications Industry Association.
Friday, December 05, 2008
According to the certified tariff:
(3) The Copyright Act requires that the Copyright Board set aThe Board's decision dated December 5, 2008 and the certified tariff dated December 6, 2008 and other material are available here.
tariff for the years 2008 and 2009. However, in a correspondence
of November 14, 2007, and in a press release of December 18,
2007, the Canadian Private Copying Collective (CPCC) indicated
its intention not to collect any increases in levies retroactively
when the certified tariff for 2008-2009 is issued.
Anyone still using blank CD-R, CD-RW, CD-R Audio, CD-RW Audio or MiniDisc media may want to try to stock up before the increased levies are passed through.
Ironically, due the the levy scheme, the price of blank DVDs, which hold about seven times more data than blank CDs, is now much lower in many cases than blank CDs. This is because there is no levy on blank DVDs, that battle having been won in the 2003-2004 hearing and not renewed.
The Copyright Board's decision at the outset of this tariff hearing to proceed with a tariff on iPods and other digital audio recorders, etc. was quickly and decisively quashed by the Federal Court of Appeal on January 10, 2008. This leaves the CPCC with blank CDs as the only significant source of levy income. The CPCC clearly still hopes to impose a levy on iPods, etc. via a change to the Copyright Act. There are significant internal battles in the music industry about the levy. In the aforesaid court case that quahsed the hearing on an iPod levy, CRIA actually intervened against the CPCC.
Disclosure - I've been involved for years in opposing the levy scheme in Canada both at the Copyright Board and in the Courts.
Thursday, December 04, 2008
Lord Justice Jacob on Patent Law and the Pied Piper
Patents and Pharmaceuticals - a Paper given on 29th NovemberThe paper is available here. The video of his presentation is here.
at the Presentation of the Directorate-General of Competition's
Preliminary Report of the Pharma-sector inquiry
Follow the links to see the connection with the Pied Piper story.
This is an important, interesting and frank paper and serves to illustrate the usefulness of appointing expert and experienced judges and hearing from them on important policy issues outside of their rulings on actual cases.
Hat tip to the IPKat.