The Thawing Out of Robert W. Service

On the stroke of midnight tonight, it will be legal in Canada to reproduce the rest of this iconic poetic tale by Robert W. Service, (January 16, 1874 – September 11, 1958):

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.

HK

PS

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.

Les Miserables - Free At Last?

It's good to learn that moral rights have expired in France in Hugo's Les Miserables - a mere 123 years after his death. A French Court has so declared, after a suit by some heirs concerning sequels for about $1 million and an injunction

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.

HK

PS: UPDATE

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.

HK

RIAA Abandons Mass Litigation? - The Good and the Bad News

There’s a story today in the Wall Street Journal that the RIAA is about to “abandon” its mass litigation campaign that has so far scored, scared, and/or scarred some 35,000 individual victims (technically described more accurately as “defendants”) to date. According to the article, "The RIAA said it plans to continue with outstanding lawsuits."

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?

HK

More Copyright Consultations in UK...

(Tod Baker, CC License)


(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?

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?

Answers are due by February 9, 2009.

HK

Google and Lessig on Net Neutrality

Is Google changing its tune on net neutrality? The Wall Stree Journals seems to be so so suggesting in a widely linked and discussed artcicle:

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.
...

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."

Barack Obama

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.

Is the Internet going to become more and more like cable and pay TV?

PS - UPDATE: Google's answer to this can be found here.

HK

Congrats to Paul Schaeffer, C.M.

This great Canadian performer has just been awarded the Order of Canada and has now been the band leader on the David Letterman Show since 1975 - the year I started law school.

Hard to believe how time flies. Mazel Tov, Maestro Schaeffer!

Still hip, still cool, still great!

Keep it up...

HK

Gowers on UK Term Extension Capitulation

Mr. Gowers is not impressed by the British Government's capitulation to the record industry on term extension for sound recordings:

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.

Here's the whole article in today's Financial Times.

UPDATE & PS:

The UK secretary, Mr. Burnham, replies here.

HK

More on Satire and Parody and the Need for Legislation in Canada

Prof. D’Agostino has posted a thoughtful comment, with which I respectfully disagree, on my posting from yesterday on the BC parody case. It merits a sufficiently lengthy reply to require a new entry.

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.

HK

Parody Defence Not Available according to BC Court

The Tyee reports on a copyright case involving alleged infringement of a Canwest newspaper in which the defendant pleaded that the material was a "parody."

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.

I'm afraid that the BC ruling illustrates my point. This issue is much to important to be left to the vague uncertainties of the trial courts and the often limited resources of defendants. Legislation providing a satire and parody exception is necessary and should be an important part of whatever copyright bill may emerge in these uncertain times.

HK

The Great Canadian CD Levy Inrease - 2008

I was interviewed today at some length by the Calgary radio station AM 770 CHQR about the levy increase. Hear it here at about 07:30 minutes into the segment. Go to December 10, 2008 at 8:00 PM local Calgary time.

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.

HK

Music As Torture- and the Bands Played On

The use of music as torture by the Americans is still going on, according to this article.

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.

HK

Trademark Info Corp - Don't Pay These People

An organization named Trademark Info Corp is sending out a document to Canadian registered trade-mark owners offering "publication of protected trade-marks on the internet" for the fee of CDN $1330. The website of this organization is here.

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."

HK

Suggestion for Obama Foreign Policy on IP

Here's a provocative op-ed in the Mercury suggesting that the new US Obama administration should be less aggressive on IP in US foreign and trade relations.

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.

HK

Levy Increase

The Copyright Board has raised the levy on blank CD-R, CD-RW, CD-R Audio, CD-RW Audio or MiniDisc to $0.29 from $0.21 each.

According to the certified tariff:

(3) The Copyright Act requires that the Copyright Board set a
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.

The Board's decision dated December 5, 2008 and the certified tariff dated December 6, 2008 and other material are available here.

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.

HK

Lord Justice Jacob on Patent Law and the Pied Piper

In the honourable tradition of expert British Judges who speak their mind when helpful on public policy issues, Lord Justice Jacob - who had considerable expertise and experience in patent and trade-mark law before his appointment to the High Court and Court of Appeal - has delivered a public paper on patent policy on November 29, 2008 entitled:

Patents and Pharmaceuticals - a Paper given on 29th November
at the Presentation of the Directorate-General of Competition's
Preliminary Report of the Pharma-sector inquiry

The paper is available here. The video of his presentation is here.

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.

HK

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.