Thursday, December 31, 2009

UK 3 Strikes to Cost £500million and add £25 a year to ISP Bills

The Telegraph reports that UK 3 Strikes to 'will cost consumers £500m' and add £25 a year to ISP Bills according to UK Gov impact analysis

Here's the Government's own impact analysis document....

HT to IP Kat...


Sunday, December 20, 2009

VANOC Disrespects IP amd Creators in 2010 Vancouver Olympic Games

VANOC has shown that it can disrespect intellectual property - actual intellectual property - and its actual creators - just as much or even in a faster, higher and stronger way than the so-called "ambush" marketers who dare to combine such generic words as "Vancouver" & "Games" or "2010", etc., and thus potentially offend the very odd statute that VANOC managed to get enacted.

It apparently wanted to pre-record the Vancouver Symphony Orchestra's version of a performance for the opening ceremony and then have someone other than the VSO and its actual and much esteemed conductor, Bramwell Tovey, pretend to perform the recorded performance. In other words, deception and "passing off" on an Olympic scale.

Pre-recording is one thing - and it was necessarily done during President Obama's inauguration because it was about -20 degrees celsius outside and Stradivarius fiddles and 'cellos and Leblanc clarinets and Steinway pianos don't work too well or last very long in such conditions. But at least the real performers were present and got credit.

Here's the story.

Tovey, to his great credit, refused this offer. He said:
"In our field, for you to plagiarize somebody else's recording - to mime it and pretend that it's you - is absolutely on a par with Ben Johnson's fraud. ... It's non-Olympian in spirit and VANOC really should have known better."
VANOC has backed down, apologized, and made a presumably much more legitimate proposal to the VSO, which has been accepted.

This follows reports earlier this week that professional singer-songwriter Nicole Scoffield was told she had to assign her copyright to VANOC before her song was even looked at for potential use in the Vancouver Olypmic Games in 2010. Oops, I did it again - combining all those words.

Actually, one useful aspect of the special statute is that it provides "clarification" that using all of these words together for criticism or parody isn't illegal because it's not "use" according to trade-marks law principles. Thank goodness they got that much right!
s. 3(5) For greater certainty, the use of an Olympic or Paralympic mark or a translation of it in any language in the publication or broadcasting of a news report relating to Olympic Games or Paralympic Games, including by means of electronic media, or for the purposes of criticism or parody relating to Olympic Games or Paralympic Games, is not a use in connection with a business.
So, let the criticism and parody continue at an even faster, higher and stronger level.


Tuesday, December 15, 2009

US Takes Postive Step Towards Possible Treaty for the Blind

The US Delegation in Geneva at WIPO - notably and interestingly led by the very capable Prof. Justin Hughes - has just delivered as very positive statement on a possible treaty for the blind....

The US is clearly open to the possibility of a multilateral treaty. And the USA is specifically suggesting "a properly-limited international rule of exhaustion in relation to special format copies made under existing national law exceptions for persons with print disabilities."

This is good news.

Here is the US opening statement, courtesy of Jamie Love. Even Jamie is impressed....and his tweets say the EU "is beginning to look pretty bad, in comparison to US statement."

World Intellectual Property Organization
Standing Committee on Copyright and Related Rights (SCCR)
Nineteenth Session
December 14-18, 2009

United States of America

Statement on Copyright Exceptions and Limitations for
Persons with Print Disabilities

As Delivered

December, 2009

Geneva, Switzerland

Thank you, Mr. Chairman.

The United States is proud to have a series of specific exceptions and
limitations in our copyright law, including for education, libraries,
and persons with print disabilities.

The law of the United States has these exceptions because we believe
access to information, cultural expression, and ideas is essential and
we know that governments have a role to play in facilitating that access
and reducing barriers to information, education and full participation
in a democratic society. So while the United States believes profoundly,
in the words of our Supreme Court, that copyright law is “the engine of
free expression,”1we are also committed to policies that ensure everyone
has a chance to get the information and education they need and to live
independently as full citizens in their communities.

Because education and civic engagement can be severely limited when
information is not available in accessible formats, under US copyright
law qualified non-profit organizations and government agencies are free
to reproduce and distribute published literary works under copyright in
specialized formats for use by blind persons or persons with other print
disabilities. We acknowledge that more is needed, but we are proud of
what this copyright exception has achieved. One of the main providers of
materials under this exception, the National Library Service,
distributes two (2) million Braille and audiobook copies of works to
nearly 800,000 users each year. And we have had this provision in our
law since 1996.

Of course, the United States is not alone in serving those with print
disabilities through carefully crafted limitations and exceptions in
copyright law. As we all know, over 50 countries have specific statutory
exceptions addressed to the needs of the visually-impaired and persons
with print disabilities. Other countries like India are in the midst of
thoughtful deliberations on their own national exceptions.

So the United States is pleased that WIPO is addressing this issue. We
believe that WIPO can move forward on this issue meaningfully and

In that respect, the United States wants to first acknowledge the WIPO
Study on Copyright Limitations and Exceptions for the Visually Impaired,
prepared by Ms. Judith Sullivan, and presented to the Standing Committee
in 2006.2 This Study represents the kind of thorough comparative work we
must always do as a foundation for the development of new norms in
international copyright law. We also recognizes the on-going work of the
WIPO Stakeholders' Platform, which continues to explore in detail how
the needs of persons with print disabilities can be better addressed
through trusted intermediaries, new technologies, better formats, and
improved "best practices" in the publishing industry.

The United States also wants to acknowledge and express our appreciation
for the draft treaty language prepared by the World Blind Union and
submitted as a formal proposal at the last session of the Standing
Committee by our colleagues from Brazil, Ecuador, and Paraguay.3 We want
to recognize the tremendous work on that draft that was done by the
World Blind Union, the International Federation of Library Associations,
the DAISY Consortium, and several other groups and individuals. The WBU
treaty proposal will help the Standing Committee focus on this problem
and find the right means of addressing access to materials for people
with print disabilities through well-crafted exceptions to copyright
protection that can become an integral part of the international
copyright system.

As we explained in the last meeting of the Standing Committee, the
United States has been engaged in a process of understanding the
problems that confront persons with print disabilities in our own
country. This has been a joint effort of the U.S. Patent and Trademark
Office and the U.S. Copyright Office with leadership from the White
House. This process included a Notice of Inquiry in March 2009 that
generated numerous public responses; a public roundtable in May with
many stakeholder representatives presenting different perspectives on
making copyrighted works accessible to persons with print disabilities;
a further public comment period in October and December that included
specific questions on the WBU treaty proposal; and, just last week, an
informal White House meeting of representatives from our country’s
leading organizations for the blind and visually-impaired, our library
community, and our copyright industries.

Those of us working on this issue in the U.S. Government believe that we
are genuinely studentsof this problem; we are still in the process of
learning. But we are committed to doing our homework and doing it well.

Having said that we are still learning and studying, the United States
comes to this meeting with greater clarity and conviction in our views
on how the international copyright community should proceed in
addressing the needs of those with print disabilities.

Our commitment to reaching an international consensus

on copyright exceptions for persons with print disabilities

First, the United States believes that the time has come for WIPO
Members to work toward some form of international consensus on basic,
necessary limitations and exceptions in copyright law for persons with
print disabilities. This international consensus could take multiple
forms, including a model law endorsed by the SCCR, a detailed Joint
Recommendation to be adopted by the WIPO General Assemblies, and/or a
multilateral treaty. The United States is open to discussing and
exploring all these options.

The United States believes that the initial most productive course of
action may be a work program that begins with a series of serious,
focused consultations aimed at producing a carefully-crafted Joint
Recommendation of the Berne Assembly and the WIPO General Assembly. We
further believe this initial Joint Recommendation could be a step toward
the development of a treaty establishing basic copyright limitations and
exceptions for persons with print disabilities.

The first goal of international consensus in this area

In our consultations and review it has become clear to us that the most
pressing problem – the one identified repeatedly by experts – is the
cross-border distribution of special format materials made for persons
with print disabilities, whether these special format materials are made
under copyright exceptions in national law or special licensing
arrangements. Therefore, the United States believes that our first goal
should be to reach international consensus on the free exportation and
importation of special format materials for persons with print
disabilities in all countries.

We are confident that this body, the Berne Assembly, and the WIPO
General Assembly have the expertise, wisdom, and resolve to find a
suitable solution to this problem. We are prepared to work with other
countries to explore creative solutions to this problem, including, but
not limited to, [a] the establishment of a properly-limited
international rule of exhaustion in relation to special format copies
made under existing national law exceptions for persons with print
disabilities and/or [b] an international legal norm that trusted
intermediaries and non-profit organizations working for persons with
print disabilities must be able to exchange special format copies
without fear that copyright law bars such activities.

We believe that a solution to the problem of cross-border distribution
of special format materials, properly delineated to prevent abuses,would
solve the foremost problems identified by the print disability and
visually-impaired communities.

Further international consensus on basic exceptions for print

The United States is also prepared to participate in a WIPO work program
to establish further international consensus on specific exceptions and
limitations for persons with print disabilities that should be part of
national copyright laws.

As a practical matter, we believe that this project will take longer
than finding common ground on the cross-border distribution of special
format copies made under existing national exceptions. First, any such
consensus should acknowledge the diversity of established national laws
in this area and the diversity of successful experiences with copyright
exceptions for persons with print disabilities that WIPO Members have
had. Second, any such consensus should ensure that WIPO Members retain
the flexibility to craft copyright exceptions and limitations to meet
changing social, economic, and technological conditions that affect the
print disability community. Third, the specific exceptions and
limitations that emerge from such a process should acknowledge – as many
in the visually impaired and print disability communities have told us
-- that market practices can often help to solve problems of access to
materials and that mandatory exceptions are most needed to address
market failures. Finally, consensus on basic copyright exceptions for
the print disability communities can and should be reached within the
framework of the Berne acquis; Berne Article 9(2); and the corresponding
provisions of TRIPS, the WCT, and the WPPT.

A balanced system of international copyright law

We recognize that some in the international copyright community believe
that any international consensus on substantive limitations and
exceptions to copyright law would weaken international copyright law.
The United States does not share that point of view. The United States
is committed to both better exceptions in copyright law and better
enforcement of copyright law. Indeed, as we work with countries to
establish consensus on proper, basic exceptions within copyright law, we
will ask countries to work with us to improve the enforcement of
copyright. This is part and parcel of a balanced international system of
intellectual property.

Thank you.

# # #

Monday, December 14, 2009

Weapons of Mass Distribution Redux? - The White House Summit

While the environment evaporates in Copenhagen and the rights of the blind are being blindsided in Geneva, rest assured that intellectual property enforcement activity is alive and well in Washington, DC. Variety reports that:
Vice President Joseph Biden is leading a roundtable on Tuesday with Hollywood CEOs, music industry execs and legal experts in what is being billed as a first-of-its-kind discussion on piracy.
Everybody who's anybody in the US entertainment business will be there.

Lots of top government officials, including Attorney General Eric Holder, Homland Security Secretary Janet Napolitano, Commerce Secretary Gary Locke, FBI director Robert Mueller and Secret Service director Mark Sullivan.

Among the private sector, those present will include Sony's Michael Lynton, Warner Bros.' Barry Meyer, Viacom's Philippe Dauman, NBC Universal's Jeffrey Zucker, Warner Music Group's Edgar Bronfman, Harper Collins CEO Brian Murray, Universal Music Group's Zachary Horowitz, the MPAA's Dan Glickman, the RIAA's Mitch Bainwol, IATSE's international president Matthew Leob, AFTRA'S Kim Roberts Hedgepeth, DGA president Taylor Hackford, DGA exec director Jay Roth and SAG's David White.

Curiously, somehow, I dont' see anyone from EFF, Public Knowledge, or the Consumer Electronics Association on the White House list.

Would it be surprising if those present find "overwhelming' and "convincing" evidence - or words to that effect - of the existence of weapons of mass distribution in "rogue" nations such as Canada, or words to that effect?


PS - Dec. 15

here's Gigi Sohn's Statement on behalf of Public Knowledge:

For Immediate Release:
December 15, 2009

The following statement is attributed to Gigi B. Sohn, president and co-founder of Public Knowledge:

“We were extremely disappointed to learn of the White House meeting to be held later today on the issue of intellectual property and ‘piracy.’ It is unclear why three cabinet officers, several subcabinet officers, the directors of the Federal Bureau of Investigation and the U.S. Secret Service are needed to tend to the worries of the big media companies, particularly the motion picture industry which is completing a year in which it will set box-office records.

“Although the meeting with Vice President Biden purports to bring together ‘all of the stakeholders to discuss ways to combat piracy in this rapidly changing technological age,’ some stakeholders are noticeably missing. Many representatives of media companies will be there. No consumer or public-interest groups, technology companies, technology associations or Internet Service Providers are on the guest list. No one who questions the need for Draconian governmental policies on behalf of the privileged special interest group for whom this meeting is being held is on the guest list.

“If Vice President Biden is truly interested in learning more about intellectual property, we hope he will continue his consultations with a group of people who share a wider range of views than those with whom he will meet today.

“We also question the propriety of having Attorney General Eric Holder attend a meeting with top officials of NBC when it is quite possible the Department of Justice will have to rule on NBC’s unprecedented merger with Comcast which would combine those two media giants.”

The White House announcement, with entire guest list, is here.

Wednesday, December 09, 2009

SOCAN & Sotto Voce Retroactivity & Pending Litigation

Michael Geist has outed the curious special treatment given to SOCAN’s submission to the recent copyright consultation process, which is available only by specific request. If you do request it, you will get it right away delivered by email as an inconvenient non- searchable PDF. From a technical standpoint, this entails a minor sacrifice of privacy and a major compromise in transparency, since there is no conceivably valid reason why SOCAN’s submission to the confutation process should be given special treatment in contrast with the more than 8,000 other submissions. And as many have pointed out, this means that SOCAN’s lobbying efforts in this forum won’t show up in search engines. It was made clear from the outset that submissions would be publicly posted. In any event, it is available here courtesy of Jon Newton in spite of SOCAN’s efforts. (SOCAN should look into the “Streisand Effect”, if it is unaware).

Ironically, the submission is in locked down PDF, so one can’t easily cut and paste. Under Bill C-61, it would be illegal to try to get around this TPM. Here's a TPM-free version.

The more interesting issue is why SOCAN wants to keep this hidden from prying eyes, assuming Michael’s report is accurate. After all, SOCAN has normally been one of the more transparent collectives - though that is only relative to the others which offer varying degrees of greater opacity in their lobbying, administration, governance and even at the Copyright Board. They have collectively convinced the Board to permit few and only innocuous questions about the internal workings of these organizations with monopoly power and virtually no effective member democracy that collect almost $500,000,000 a year in Canada.

In this case, there’s at least one plausible possible reason why SOCAN might have wished to keep its submission away from public scrutiny.

SOCAN is asking for an amendment to retroactively “clarify” that there is and always has been a “making available right” in Canadian law that would presumably apply to the “communication right” in such way as to include activities as the delivery of ringtones or online music distribution. In this case, the retroactive aspect of the demand could prove to be very controversial. Retroactive legislation is usually controversial, but especially so when it interferes with pending litigation.

The communication issue has already been determined in SOCAN’s favour by the Federal Court of Appeal (“FCA”), after the ring tones objector group (led by BCE) inexplicably, and in my view very unwisely, conceded the issue before the Copyright Board and then changed its tune and its lawyer in the FCA. No surprise - they lost downstairs and upstairs. The Federal Court of Appeal politely refrained from highlighting the inconsistency in the objectors positions below at the Board and on judicial review in the FCA. But the objectors lost anyway and, quite predictably, the Supremes wouldn’t hear an appeal.

However, various parties are trying once again to prevail over SOCAN on this “communication” issue in the FCA in the current judicial review of the Copyright Board’s 2007 decision on SOCAN’s Tariff 22A, which deals with online delivery of music. To say the least, this will not be easy, in light of the FCA’s decision in the ringtones case.

I explained the tie in between ring tones and Tariff 22A in a blog here more than two years ago and talked about the dangers of layering and overlapping tariffs.

But if SOCAN gets its way with its extraordinary request for retroactive clarification, the questions now before the Courts could become moot, if such legislation comes into force before the Courts are finished with this case. If the legislation comes into force after the Courts have finished with the litigation and Courts have ruled against SOCAN, the judicial determination would probably be undone.

Governments are naturally loathe to legislate in the middle of litigation in favour of one side or another - unless the litigation results from a really glaring deficiency in the law and the results clearly create an unexpected and serious injustice.

There have been three relatively recent notable corrective surgeries in copyright law in Canada. The most controversial was the 2002 fix in the JUMP TV imbroglio which involved legislation to plug what was arguably a loophole that was found in the statute that would have enabled internet retransmission of TV signals at an extremely low license rate intended for cable companies. . There was also the case of the SOCAN amendment in 1993 that “clarified” the definition of a “musical work”, which successive bureaucrats failed to amend, despite a decision of the Supreme Court of Canada from 1968 that clearly exposed the problem.

But the most notorious fix - which was done in the midst of protracted Copyright Board and judicial proceedings - was the 1971 legislation that removed the possibility of the record industry enforcing a “sound recording license” (what we now call “neighbouring rights”), arguably then an unexpected result from thoughtless drafting of decades earlier. The music industry has since gotten even with a vengeance with the broadcasters for this amendment, and several times over. These industries have long memories. The saga was well documented by Jacques Alleyn in the Phonographic Industry Deprived of its Performing Right in Canada, 6 C.P.R. (2d) 258

But there is no current deficiency in drafting with respect to the communications rights which could result in a major and unjustly uncompensated use - as was arguably the case in past. The issue now is rather a question of interpretation and of how many times over do rights owners need to paid for the same transaction and how many layers and tariffs will pile up and wait in line for eventual disposal at the Copyright Board years later, usually with subsequent judicial review. All of this will ultimately be paid by the Canadian public, which has no effective voice in this process when costs are simply passed along. Especially in the case of oligopolistic objectors, the incentive to fully fight these tariffs and to change this system is limited if all of these suppliers face the same costs, which will be passed on the powerless public.

Retroactive “clarification” of the law is a very drastic technique that requires a very strong justification - because it basically bypasses the judicial process. This is particularly serious when it is done during the course of ligation.

Here’s an excerpt from SOCAN’s sotto voce submission, which SOCAN may not want to see widely discussed:
In our opinion, Bill C-61 (if reintroduced) needs to be changed if MAR [making available right] for authors is to be recognized, without question, as already forming part of the Act.

We are of the view that language appropriate for this purpose can be derived from the Bill C-60 definitional provision mentioned above to clarify the meaning of the section 3(1 )(f) communication right (either in section 3(1 )(f) itself or in section 90), together with clear wording to establish that the meaning has always been the case (and not just dating from the coming into force of this Bill). For example, an amended section 3(1 )(f) could read as follows:

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication; for greater certainty, it is deemed always to have been the law that a person who makes a work available to the person in a way that allows members of the public to access it by telecommunication from a place and at a time individually chosen by them communicates it to the public by telecommunication.

In our opinion, this clause (or one of similar import) would confirm that the right of communication to the public by telecommunication in our Act includes, and has always included, the MAR right for authors.
(emphasis added)
Retroactive “clarification” of something that doesn’t cry out for such extraordinary treatment is a last resort for legislators. In the case of copyright revision, acceding to SOCAN’s request in this instance could set a disastrous precedent.

Next in line would be the Canadian Private Copying Collective (“CPCC”) - which has been smacked down twice by the FCA for trying to get a levy on iPods when the legislation clearly applies only to “media” and not to “devices.” I can just see an absurd proposed amendment that would “clarify” that “it is deemed always to have been the law that the word “medium” includes “device.”

This ever thickening morass of layered rights needs legislative simplification, since neither the Copyright Board nor most of the copyright bar have any apparent inclination to kill this golden calf of confusion arising from redundant rights that the public pays for so dearly and uniquely in Canada. The US courts repeatedly deny such attempts at layering. A judicial commission will probably be necessary because of the complexity involved and absence of any effective institutional voice with sufficient will and resources to adequately represent the public interest.


Tuesday, December 08, 2009

Copyright Capitulation - Solution to Canada/US Trade Issues?

There was a very interesting international trade event on The Hill yesterday - very capably and even-handedly hosted by the Hon. Scott Brison, PC., M.P. Lots of MPs, Senators and trade policy types. Some very senior level speakers. Mr. Ignatieff was there listening and said a few words. The Right Honourable Joe Clark, former Prime Minister, was the main keynote lunch speaker and spoke eloquently about Canada-Africa trade, despite inexcusable bungling by the Hill technical people of his slide presentation. He was witty and wise.

Anyway, the highlight for me was the astonishing statement that was made by Maryscott (“Scotty”) Greenwood, who is an energetic figure in on the Canada/US relations front. Among other things, she is Executive Director of the Canadian-American Business Council (“CAB”).

She is also a sometimes controversial lobbyist, who worked for and now with Gordon Giffin, a former US Ambassador to Canada under the Clinton administration from 1997 to 2001.

The CABC is big on such issues as the “Buy American” controversy that is hurting so many Canadian SMEs, such as Hayward Gordon (a 57 year old pump technology company), whose President, John Hayward, spoke so eloquently yesterday.

Greenwood’s remarks unfolded like a slick Hollywood movie leading to an unstoppable, inevitable and unbelievable conclusion.

After a lot of very intelligent talk by her and others about the “Buy American” problem and the long history of Canada/US relations, she said that the solution is very simple.

You could feel the punch line coming when she was concluding her remarks just before questions were taken by indicating that she “loves linkages” (trade policy jargon for the linking of two often unrelated issues, which can result in the giving away of one sector’s interests to benefit another's).

Her conclusion was then a predictable climax, in which she actually came out and said that Canada could solve most if not all of its current trade problems with the USA - and particularly the “Buy American” issue - by simply “fixing copyright.” These problems would then be solved “tomorrow.”

Yep - the Canada/US file is now all about copyright, according to her. All we have to do is do what the US Government and the American lobbyists say. It doesn't matter how wrong the USA may be about “Buy American” and countless other trade irritations. Or even if the USA is the most flagrant scofflaw at the WTO in international copyright law.

Never mind that Canadian copyright law is already stronger and better in more than a dozen ways than US copyright law - some of which provide a lot of money to American interests.

Never mind all of this, we should just do as they say.

So I asked a question - admittedly with something of a preface to set the context - about why Canada would even discuss copyright with the USA when:
• the father of the American father of the DMCA, which is the model we are supposed to follow, (Bruce Lehman) has disowned it;
• there was no evidence of serious counterfeiting and piracy in Canada and no basis for the 301 listing, other than that of a few lobbyists’ recycled back-of-the envelope musings;
• the most obvious source of counterfeit and pirated goods are the street corners of midtown Manhattan; and,
• above all why Canada would be discussing a secret treaty called ACTA that would make the border even more sticky and inefficient than it already is.

The Moderator, Colin Robertson is a DFAIT diplomat who is on loan to the Norman Paterson School of International Affairs, which has generally been very supportive of Canadian foreign policy and big business interests.

Mr. Robertson was the first to mention Canada's place on the US piracy list yesterday. He clearly didn't like my question, or the context setting remarks. Ms. Greenwood - to her credit - answered it, however briefly and unsatisfactorily. I didn’t get a follow up. Her answer was that Canada should fix its copyright law in the manner suggested by the USA because this would be better for Canada or words to that effect. Isn't it touching that American lobbyists are so concerned for the best interests of Canada?

Anyway, some influential folks were quite interested in my question and it clearly took many by surprise who were unaware of ACTA, its trade implications, the secrecy attached to it, and the general sensitivity of the copyright account.

Yesterday was clearly another example of US government and entertainment industry lobbying and policy laundering at its finest. Let us hope that some, at least, saw through it.

Above all, let’s not see Canadian competitiveness in education, commerce, research, and innovation traded away at all, much less with insufficient understanding of the real costs to Canada. Rest assured that certain lobbyists know the costs very well because they know what their clients stand to gain, which is why copyright is getting such persistent and well-funded treatment and has now risen to the number one issue up for “linkage” and trade-off. What these lobbyists want to win will result in a significant economic, political and diplomatic loss for Canada, and even further diminution of Canada's international prestige.


PS - the Globe and Mail confirms the above.

And Techdirt picks up....

And a bright Ph.D. student named Blayne Haggart comments from a trade policy perspective...

Monday, December 07, 2009

AUCC and Excess Access Copyright

In the past, the Association of Universities and Colleges of Canada (“AUCC”) has usually been less aggressive in its dealings with Access Copyright (“AC”) than many would have liked to see. Things may now be changing.

Publicly available figures indicate that AC apparently receives about $11 million a year from post secondary institutions. AC distributes less because it has substantial administrative expenses of more than 18% of its revenues. By far, most of this comes from coursepacks. But close to $2 million appears to come from per capita FTE payments from colleges and universities. Much or most of this would come from universities - and in turn from the pockets of university students, since virtually all of the course pack costs ($0.10) per page are passed on to students, as are usually the per FTE (full time equivalent) student charges - currently $3.38 per year.

Those concerned with Canada's competitiveness may wish to note that there is no similar mechanism or payment requirement in the USA, to take the most obvious example. Another minus for Canadian competitiveness and a plus for those associated with AC particularly managers lawyers, and consultants.

Fears in the post-secondary world that AC would attempt to parlay its recent victory at Copyright Board in the K-12 (CMEC) case into vastly greater demands on the post-secondary sector are being confirmed.

According to an AUCC memo dated December 1, 2009 that I have obtained, even back in 2003 AC tried to boost these figures to $15 per FTE student per year (the “Part A” license) and $0.276 cents per age (the Part B license) - a whopping 444% and 276% respectively of the current amounts - and that was in 2003!

Since 2003 two important events have occurred:
1. The watershed CCH v. LSUC was rendered by the Supreme Court of Canada on March 4, 2004, which greatly expanded the potential reach of the fair dealing exceptions in Canadian copyright law, and made clear that they are “users’ rights” which must be given a “large and liberal” interpretation and should be looked at in preference where possible to the many specific little exceptions that follow in the legislation.

2. Notwithstanding that decision, and based upon an arguably very inadequate record before it, the Copyright Board issued a decision more than doubling the previously negotiated rate in the K-12 system to $5.16 per FTE, notwithstanding that the rate was negotiated prior to CCH v. LSUC and the decision was issued more than five years later on June 26, 2009. I've blogged about this before. One might have thought that the rate should have gone down after the CCH v. LSUC decision - but that's not what happened. Instead, as indicated, it more than doubled. Moreover, quite apart from problems with the evidentiary record such as those resulting from CMEC’s too late recognition of the significance of the CCH decision, the Board also made several sweeping and arguably incorrect legal pronouncements. An application for judicial review of this Board decision will be heard by the Federal Court of Appeal in the weeks or months ahead. (I should disclose that I have recently filed a motion for leave to intervene in this application on behalf of the Canadian Association of University Teachers.)
Now, it seems that AUCC may be seriously questioning AC. It has sent out the above mentioned memo to Access Copyright License Administrators in the universities outlining the current status of the AC university licensing situation. The memo points out that AC will likely be asking for even more money than in 2003. This is, course, notwithstanding the CCH decision and presumably buoyed by the unfortunate Copyright Board decision from earlier this year. From what I’ve seen, it seems that AC also wants to enforce a sampling regime for the Part A license - which would mean even more copyright bureaucracy in post secondary institutions and fodder for a Copyright Board confrontation. So far, in its one contested case, AC has done extremely well at the Copyright Board.

AC also wants to license digital activity that would normally be fair dealing or otherwise allowed - in which case no license is needed, thank you very much. However, licensing - or attempting or purporting to license - that for which no license is necessary and/or for which AC has no rights has always been a key element of AC’s business plan. AC is also backing away from its controversial “indemnity” scheme which, whatever one can say about it and the very awkward questions it raised, had a certain appeal to some copyright administrators.

The AUCC memo points out the importance of CCH and refers to many new alternatives to dealing with AC. The memo includes a questionnaire that asks some very pertinent and perceptive questions indeed:
Question 1

Are copying practices for teaching and research in your institution evolved significantly away from photocopying and towards the use of digital resources?

Question 2

Is photocopying still an important activity for teaching and research?

Question 3

Could your institution substitute the use of licensed digital works, open access journals, and the Internet for photocopying under the Access Copyright licence?

Question 4

Does your institution still need a Part A and/or Part B licence from Access Copyright?

Question 5

Is it feasible for your institution to operate without a Part A and/or Part B licence? Would your institution be prepared to do so?
Given the great concern in the post-secondary realm about AC’s strategy and next moves following its K-12 victory at the Copyright Board, AUCC’s initiative in, among other things, questioning AC’s relevance and necessity is both an interesting and timely development.

Could it be that the times, they are a'changin at AUCC? And that excessive demands by Access Copyright on the educational sector will begin to meet more effective resistance?


Sunday, December 06, 2009

Canadian Proposal for ACTA Secretariat

The indispensable Jamie Love has posted a much more convenient version of an earlier leaked “non-paper” from Canada which proposes an ACTA “Council”, i.e. secretariat, that would stand apart from WIPO and the WTO.

Let us assume that this document is authentic. If it isn't, Canada should promptly say so.

This document not only suggests that ACTA will be a fertile turf for cultivation by ambitious bureaucrats and lobbyists but that Canadian officials may be treating ACTA a lot more seriously and enthusiastically than Canadian Ministers realize or care to admit. I, for one, would like to take Minister Clement at this word when he says that ACTA will be “subservient” to Canada’s domestic law and policy.

Anyway, here’s what the leaked Canadian document is all about in its own words:

During the informal meeting of the Anti-Counterfeiting Trade Agreement (hereafter
referred to as ACTA, or “the Agreement”), in Berne, Switzerland, on March 11-12, 2008,
negotiating partners discussed a number of institutional issues to be eventually
considered under Chapter Five of the Agreement (“Institutional Arrangements”), such
as, inter alia, monitoring and evaluation, dispute settlement, and accession, as well as
the various options to address them. In giving consideration to how these issues could be
addressed, Canada offered to prepare a non-paper outlining the various options that
negotiating partners might like to consider.

It is noted that the various issues to be addressed under the Agreement will require some
level of administrative commitment from each of the Parties, and have been enumerated
in view of Parties’ existing IP and enforcement-related requirements, arising from both
treaty obligations and from domestic law, with a view to reducing the overall
administrative burden on each Party. As such, it is noted that this list is non-exhaustive,
and in that light, Canada welcomes the input of other ACTA partners to develop a more
comprehensive review of the various options available under the Agreement.

This might even lead to a permanent new institution located somewhere:

Negotiating partners may wish to consider where meetings of the Council of Parties
will be held. For example, will meetings be hosted on a rotating basis by Parties to
the Agreement, or will these be hosted permanently in one location?

Ambitious, yes. Necessary, not.

Several other documents are available here. Jamie invites one and all to judge for themselves if these documents threaten US national security.

Given the leaks we have seen, the secrecy is entirely understandable but not for “national security” reasons. It’s really all about negotiating a supra-sovereign international IP regime that no country would democratically accept, not even the USA. According to Jamie, who recently talked with US Ambassador Ron Kirk:
Kirk didn't want people “walking away from the table,” which would likely happen if the text was public, he said.
How would we as Canadians in a democratic country react to a proposal to drastically rewrite Canadian IP law wihtout tabling the various readings of the legislation, holding the committee debates in secrecy, sharing drafts only with a few lobbyists, and letting the public in only when its about to be proclaimed in force?

Not very well, I suspect.


Saturday, November 21, 2009

USA Treaty Priorities?

It's been widely reported via Reuters that:
Somalia has announced it plans to ratify a global treaty aimed at protecting children, leaving the United States as the only country outside the pact, UNICEF said on Friday.

Somalia and the United States have long been the last hold-outs to the Convention on the Rights of the Child, adopted by the United Nations General Assembly exactly 20 years ago.

The most widely ratified international human rights treaty, it declares that those under 18 years old must be protected from violence, exploitation, discrimination and neglect.
(emphasis added)
Maybe the only explanation for the US being the last holdout from this worthy sounding treaty that even Somalia will ratify is that it is just too busy protecting the obsolete business models of the RIAA and MPAA through the secret ACTA treaty process and doesn't have enough time or resources to worry about lesser priorities, such as protecting children.


Monday, November 16, 2009

Longer Copyright Term and Disincentives

Here's an economics paper by Francisco Alcalá (Universidad de Murcia) and Miguel González-Maestre (Universidad de Murcia) that is getting much attention and that concludes that longer copyright terms may actually be a disincentive to new production by emerging artists.

Here's the abstract:

Abstract Promoting high-quality artistic creation requires sorting the most talented people of each generation and developing their skills. This paper takes a professional-career perspective in analyzing the determinants of artistic creation. The paper builds an overlappinggenerations model of artists with three features: (i) the number of highly talented artists in a given period is positively linked to the number of young artists starting the career in the previous period; (ii) artistic markets are superstar markets; iii) promotion expenditures play an important role in determining market shares. In this framework, the paper analyzes the consequences for high-quality artistic creation of changes in the length of the copyright term, increases in market size, and progress in some communication technologies. It is shown that increasing superstars’ returns do not always increase the expected return to starting an artistic career. As a result, in the long run, longer copyrights do not always stimulate artistic creation.

For those who actually would like to see some logic rather than lobbying on the issue of copyright as an incentive to creativity, there's also a wonderful book published in 2003 by a brilliant elder statesman of industrial economics and the economics of technological change and IP named F.M. Scherer entitled Quarter Notes and Bank Notes: The Economics of Music Composition in the Eighteenth and Nineteenth Centuries about the rise of copyright in the how copyright protection may have actually discouraged production - and apparently did in the case of Verdi, which he looks at very closely. Not that Verdi was unproductive - he just slacked off a lot as he got quite rich due to the ever increasing power of copyright.

I leave it to her fans to decide if the artistic legacy of Britney Spears, another example of a superstar who benefits from copyright , is in decline or whether the incentive theory works for her... and if there's any correlation with her royalties.


Sunday, November 15, 2009

Scary Friday the 13th Interview

Here's a seriously scary ill-informed interview on CTV Power Play ironically on Friday the 13th at about the 3:30 mark with with former Liberal & Tory Minister David Emerson and interviewer Tom Clark.

Somebody has misinformed Clark a lot about Canadian law - and fed him lots of property talk about "theft" and "stealing."

Tom Clark wonders why we can't bring in a law to "prevent theft" and why this is a "delicate" matter and who are the stakeholders?

Tom Clark states that "one example I was given" would be that if a container arrives in Halifax labelled "Counterfeit Louis Vuitton bags", it would be "perfectly legal" in Canada and that one can steal off the internet and sell to North Korea or words to that effect. Emerson says "That's right.."

I wonder who briefed Tom Clark.

Emerson, for his part, thinks that Canada is involved in negotiations with the US and "3 or 4" other countries to "create and IP agreement intended to be the most rigorous in the world".

Clark wonders "whether we should allow crime to continue to poke the eye of the Americans?

Emerson sounds somewhat more intelligent than Clark and even says some intelligent things about the purpose of copyright law but then was was a Minister of Industry, and Foreign Affairs and International Trade.

Sorry if I didn't transcribe with 100% accuracy. My stenographic skills are rusty.

If such a smart former Minister and such a high profile TV journalist can be so misinformed and get so much wrong in such a short interview on such a high profile subject, it's really scary - even by Friday the 13th standards.


Thursday, November 05, 2009

Canadian Copyright Collectives and the Copyright Board After 20 Years: Does the System Serve its Purpose?

The following is my article in somewhat more convenient form on the above subject from the Hill Times Policy Briefing on Copyright published on November 2, 2009 and available from the Hill Times website here.


OTTAWA - This is the 20th anniversary year both of the Hill Times and also its neighbour across the Sparks Street Mall, Canada's Copyright Board. "The Board" is a specialized quasi-judicial tribunal located at the iconic address of 56 Sparks Street in Ottawa, one floor up from the fabled USC Canada, which was founded by Dr. Lotta Hitschmanova in 1945 as the Unitarian Service Committee of Canada.

The USC and the Copyright Board are both, ironically, involved in the redistribution of Canadians' money. However, unlike the volunteer contributions to the USC, Copyright Board tariffs have the force of law and are often referred to as "taxes". Many of these tariffs are deeply hidden but lucrative such as those on broadcasters or businesses that utilize "background music". Others are far more visible, such as the recent surprisingly costly tariff of $5.16 on every full time student in Canada's K-12 educational system outside of Quebec, which also entails a whopping additional retroactive liability of about $40 million, $16 million of which arises in Ontario. Questions will be asked about how such an expensive tariff arose and why so much money is being paid for windfall photocopying royalties and not on more productive and innovative purposes such teachers, books and computers. As is often the case, there is no such tariff in the USA.

Canadian government policy has deliberately encouraged and even subsidized this collective system on the assumption that these tariffs will actually help actual creators. If so, these tariffs would take the heat off the beleaguered subsidy system for Canadian culture. But copyright tariffs work best for those who are already commercially successful and the collectives' lawyers, consultants and managers. Much if not most tariff money leaves the country as a result of international treaty obligations. Subsidies, however, can be narrowly targeted and kept in Canada.

Canada has about 36 active collectives with annual revenues approaching $500,000,000. Contrast this with only about a half dozen counterpart collectives in the USA. Canada's Copyright Board, which has a staff of 13 plus up to five full time members, is by far the largest such organization anywhere.

There are many good things about the Canadian collective system, which has grown exponentially in the last 20 years from the previous part-time regime that existed for about five decades. This growth has, however, created some issues that need to be addressed. Here are some examples.

The costs of Copyright Board hearings have become absurdly and unnecessarily high. This actually benefits collectives, because it drives many potential objectors away. Besides, these sole purpose collectives recover their costs from the tariff payments, which means from ordinary Canadian businesses, consumers and taxpayers who invariably have many other things to worry about besides copyright. There should be serious consideration of a cost recovery mechanism, as is found at the CRTC.

Although there are usually only a handful or so of actual hearings each year at the Board, these usually take several years to reach fruition and the delay in issuing the decision can be 18 months or more. This pace contributes to the enormous expense of the hearings and to the very real problem of significant, lengthy and costly retroactivity, such as recently seen in the educational and background music sectors. The Board's jurisdiction to award such retroactive tariffs may be vulnerable to challenge. The "mother" of all Board hearings, SOCAN's internet Tariff 22 for music on the internet, is still unresolved after 15 years with the end nowhere near in sight.

The lack of transparency of the collective system needs to be addressed through mandatory public filings of data disclosing such information as costs of administration, aggregate salaries, legal and consulting fees, etc. and how much is left over for actual creators. Canadians and collective members themselves also need to know the mean and average distribution per member within each collective, since that is a key indicator of the efficacy of the system. For example, the Canadian Private Copyright Collective has spent over $25 million on lawyers, consultants, experts, administration, public relations, travel etc. over the last ten years. But the average distribution to actual beneficiaries of the blank media levy is only about $160 annually and probably far less in most cases involving the actual musicians who do appear on the collective's radar. And many musicians don't. The Government needs to be able to evaluate the collective system though verifiable data and not just anecdotal "feel good" info provided by lobbyists.

The Board needs to revisit basic legal principles of evidence. It puts far too much reliance on opinion evidence presented by supposed experts, although it usually does not formally "qualify" these experts as such. Some of these witnesses who appear regularly before the Board have close economic ties if not outright dependency on the party calling them, and may be effectively playing a management and/or advocacy role for the collective. The Board has shown great reluctance to permit any questions relating to the independence of these "experts" or going to the weight of their testimony.

The Board should not be expected to take upon itself the job of filling what its Chairman William Vancise calls "gaps" in the legislation. Arguably, the Government has left far more to the Board than was prudent on issues such as retransmission and the blank media levy in order to avoid making tough decisions that have been taken in other countries for better or worse. The result was a far more expensive retransmission regime than was envisaged with costs passed onto Canadian cable subscribers. The basically blank regime for the blank media levy has led to an extraordinary situation in which the Federal Court of Appeal ("FCA"), which reviews the Board, has twice had to tell the Board that the legislation does not allow for a levy on digital audio recorders. This has prompted some very unusual and unusually explicit public criticism of the Court by Chairman Vancise, who described the Court's most recent ruling by Justice Karen Sharlow as "six turgid paragraphs." He describes the previous ruling by Justice Marc Noël as "obiter" and a "throw away line that has had extreme consequences, not the least of which is at least 10's of millions of dollars in royalties that have not been paid to authors, composers and performers and threatens to destroy the private copy regime." (Full disclosure - I argued successfully against the Board's view in both of these instances at the FCA).

Collective administration is essential for copyright, but it does not follow that more and more inefficient collectives and more protracted and expensive hearings are better for public policy. It was a prescient Judge James Parker who effectively created the predecessor to the current Copyright Board with his landmark 1935 report. It is time once again for a judicially led commission to solve some of the difficult problems now facing Canadian collectives and the Copyright Board that others, including the Board itself, seem unable or unwilling to confront. Otherwise, Canada's current collective system will largely benefit only a handful of lawyers, consultants and managers of collectives and fail in its purpose of rewarding actual creators and protecting the public interest.

Howard P. Knopf


Macera & Jarzyna, LLP

Ottawa, Canada

Note: The above is based upon the author's paper for the Law Society of Upper Canada in 2008. It reflects solely his own views, and not necessarily those of any of his clients.


ACTA - Certificate of Entitlement

Wednesday, November 04, 2009

ACTA - Time to Walk Away?

David Gonczol, Ottawa Citizen

Here's Jamie Love in the Huffington Post on the ACTA leaks story broken by Michael Geist.

This is going into the main stream.

If all or indeed any substantial portion of the rumours about ACTA (three strikes +, DMCA +, WIPO+, border searches of iPods, cell phone etc, for MP3s, etc.) are true, and if Canada goes along with this "agreement", then Canada will forfeit its sovereignly to determine its own IP policy. For starters, this summer's mammoth copyright consulation will have been for nothing.

So if there is substantial truth to these rumours, then Canada needs to seriously consider walking away from this secret treaty/agreement process. Maybe sooner rather than later.

We know that there is unprecedented secrecy over this process. Neither the WTO nor WIPO ever worked this way. There is no reason or justification for this. Absolutely none other than industry induced secrecy. You can be sure that the RIAA and MPAA know exactly what is going on here.

We know that Canada has very limited ability to influence the Americans. As Trudeau said, when a mouse gets in bed with an elephant, it is the mouse that needs to worry about being rolled over.

Canada has long since lost much if not most of its honest broker status in international IP and other diplomatic circles. We likely don't have the clout any more to stand up to the Americans in a negotiating room or to broker some more moderate IP arrangement. If we really think we can do that, maybe we should remain at the ACTA table for a while. But if we can't, maybe we should just walk away. And maybe sooner rather than later.

Walking away could preserve Canadian sovereignty to do what is best for Canada, which is what we really ought to care about. It might help Canada to regain international credibility and bargaining strength.

From what we have seen in the leaks to date, there is really nothing in the proposed ACTA that would benefit Canada. We do not have a serious piracy or counterfeiting problem here unless one believes the recycled and circular back-of-the-envelope “evidence” from the usual lobbyists. One has to look very hard to find fake Rolexes or pirate CDs or DVDs in Canada. I have frankly never seen this stuff in Canada. Compare mid-town Manhattan where these things are “in your face.” Claims about counterfeit medicines and health and safety issues, etc. are a smokescreen for the real agenda here, which is an ultra strong copyright and trade-marks regime, with huge “ex officio” powers given to border guards, who will be informed and educated by industry “experts.” Such ex officio action has recently resulted, for example,. in scandalous delays of perfectly legal generic AIDS drugs en route through The Netherlands to developing countries. In any case, one does not need ACTA to deal with any issues involving fake medicines or counterfeit Christmas tree decorations.

People don’t like surprise attacks on their civil liberties - and ACTA could be a very big surprise indeed, resulting in cut-offs of internet service and warrantless searches of electronic devices at the border for copyright infringement - i.e. downloaded songs and movies.

Anyone who doesn't believe that the US is serious about this should look at a recent bulletin dated August 20, 2009 from U.S. CUSTOMS AND BORDER PROTECTION CBP DIRECTIVE NO. 3340-049 which begins as follows:
PURPOSE. To provide guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices, encountered by U.S. Customs and Border Protection (CBP) at the border, both inbound and outbound, to ensure compliance with customs, immigration, and other laws that CBP is authorized to enforce.

These searches are part of CBP's long-standing practice and are essential to enforcing the law at the U.S. border. Searches of electronic devices help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography. They can also reveal information about financial and commercial crimes, such as those relating to copyright, trademark and export control violations. Finally, searches at the border are often integral to a determination of admissibility under the immigration laws
(emphasis added)

And this is BEFORE ACTA. This US will expect this and more from other ACTA partners.

That's right. Copyright “violations” (whatever that may mean) are right up there with terrorism and child pornography. Take no comfort in promises of a “de minimis” exception policy. First of all, I'm sure that RIAA and MPAA and their Canadian branches, CRIA and CMPDA, will lobby hard to make sure that “de minimis” means some truly low number such as five or ten MP3 files or one or two movies for which the traveller can't prove “ownership” on the spot. And do we really want border guards detaining us for hours and our devices for up to days, weeks or months while they determine whether we are “de minimis” or not? And what about songs that we have legally ripped to our iPods, according to the RIAA and CRIA. from CDs that we have bought and paid for? What if the customs agent doesn't believe that we own the CDs? And don't bring any children with you on your travels. (Unless you want to leave them in the care of border officials!)
They are notorious “pirates.”

If Canada remains in this negotiation in order to try to moderate the extremists, the minimum price for so doing should be complete transparency and immediate publication of all draft texts, as has been the normal practice at the GATT, WTO, WIPO and elsewhere for decades. That is the only way that moderation can hope to be achieved. And we should still be prepared to walk away.


PS - November 6, 2009: This is front page news in today's Ottawa Citizen.

Tuesday, November 03, 2009

Chairman Vancise on the Courts and Copyright Policy in Canada

(Copyright Board of Canada)

The Chairman of the Copyright Board, Justice William Vancise, gave what has become his traditional annual speech to the Intellectual Property Instate of Canada's summer course on copyright held at McGill University on August 11, 2009. It has now been made available online here.

He had some interesting things to say about what he believes should be addressed in the next copyright bill:
First, we have to recognize that sometimes a strange brew of copyright, ubiquitous technology and traffic control creates real privacy issues. Copyright should not be the means by which control is exercised in the private sphere. Copyright should therefore continue to focus on professionals and on the public sphere.

Second, we will have to recognize market failures where they exist. Where they do, tough choices will have to be made. In some cases, the law will have to allow uses for free and copyright owners will have to live with it. In others, it will be possible to monetize copyright uses either voluntarily or through compulsory regimes. To do so, it may become necessary to impose liability on some participants in the chain of copyright consumption who currently enjoy immunity: just as it was possible to make the case that blank CD manufacturers should pay a levy for the copies of music made by those who use their CDs, it should be possible to make the case that Internet service providers should pay a levy for their clients’ use of copyrighted works.

Third, parliament will have to be consistent in the choices it makes. It may be politically expedient to monetize the use of music on the Internet but not to monetize the use of movies. To do one without the other makes no sense. It also makes no sense to impose a private copying levy on blank CDs but not on iPods: either you impose a levy on both, or you remove it from both. The removal of both would potentially mean the end of the private copying regime. It seems to me that only if parliament shows such consistency, will it be able to convince consumers and others that the law makes some sense.
He also had frankly unusual and unusually frank comments about the Supreme Court of Canada and Federal Court of Appeal. On the former, he says:
The Supreme Court is “doing” more copyright law than Parliament. One may ask: is this the Court’s domain? Fair minded persons may disagree on this. Professor Daniel Gervais, for one, argues that in effect, things are moving so fast in the copyright world that absent parliamentary action, the court feels it necessary to fill in the gaps. I might add, this is not unusual. Courts frequently move to fill vacuums when the legislators fail to act. Two notable examples are gay rights under Human Rights legislation and abortion in the field of criminal law.
On the Federal Court of Appeal, which reviews the Copyright Board, he says:
The Supreme Court is not the only court attempting to fill perceived gaps in the Copyright Act. The Federal Court of Appeal has attempted on at least two occasions to reconcile the wording of the Act with the contemporary reality (means of consuming protected works or objects of copyright).

In 2004, the Court ruled the Board was wrong to conclude that the permanently embedded or non-removable memory, incorporated into a digital audio recorder or the device itself, was “an audio recording medium ordinarily used by individuals to copy music”.

In 2007, CPCC tried again and the Board was asked to determine whether the recorder itself was a recording medium as defined in the Act. It said yes in a long and well reasoned decision. The Federal Court of Appeal, once again on judicial review, overturned the Board. This time, the Court in six turgid paragraphs found its decision of 2004 dealt with the matter and was binding on the Board. I still wonder how the Federal Court of Appeal came to that conclusion when the question of whether the device itself was subject to a levy had not even been an issue in the previous decision and the comments of Noel J.A. were obiter and contained in what can only be called a “throw away line.” A throw away line that has had extreme consequences, not the least of which is at least 10's of millions of dollars in royalties that have not been paid to authors, composers and performers and threatens to destroy the private copy regime.
(Full disclosure - I argued successfully against the Board’s view in both of these instances at the FCA).

I highly recommend reading the entire paper. Chairman Vancise also provides very brief summations of what he sees as the essential holdings of several recent Copyright Board decisions. It is unusual for a Canadian judge or tribunal Chair to be this explicit in stating his or her views on specific cases and policy issues. The Copyright Board, which he chairs, has great oversight power over almost half a billion dollars per annum worth of copyright tariff payments in Canada. Therefore, his views require attention from everyone interested in copyright law in Canada.


The Future IP Czar

A hearing will take place tomorrow at 2:00 PM to confirm the appointment of Victoria Espinel, nominated to nobody's surprise by President Obama to be his IP "Czar". This is a position created by the Bush administration under intense content industry pressure. Her job is to deal with "enforcement."

The question is not whether she is qualified. She is and will almost certainly be confirmed. The question is what she will be able to do, with all of those folks out there from USTR, Commerce, the Copyright Office, DOJ, etc. with huge resources and turf with very deep roots. Not to mention Congress, where the real power lies and most of the action really takes place on IP.

BTW, those who think that Canada is alone or unfortunate in having more than one source of power in government IP policy making should look carefully at how the US system works (or sometimes doesn't work).

And even though she may be nearer to the President than others in terms of proximity, she will not have much in the way of resources and he has a few other more pressing things on his mind than incessant whining by the usual sources about piracy and counterfeiting everywhere in the world it seems other than in mid-town Manhattan.

This hearing will be webcast and may be worth watching to see if she talks about what her job will entail.


UNCITRAL security interests consultation update

Canada is off once again to Vienna to chair the UNCITRAL initiative on security interests. The Canadian delegation is now in Vienna from November 2 to November 6, 2009.

Canada has provided the Chairperson for UNCITRAL'S Working Group VI, which deals with Security Interests since its first session in New York in 2002. She is Kathryn Sabo of the federal Department of Justice. This is the 16th session of Working Group VI. All of the meetings have taken place in New York and Vienna.

Working Group VI has come up with a basic “Guide” document dealing with security interests generally. The main document is here. Don't be in a rush to hit “print”. It's over 500 pages long.

The supplementary material, currently under consideration, and which seems to deal mainly with IP, is inconveniently split up into small chunks, is here.

Even though these latest draft papers date from July of 2009, the consultation by telephone took place only last week on October 29, 2009.

IPIC (Intellectual Property Institute of Canada) took part in the consultation and has prepared some good written commentary. It has an active and well informed committee. It provided suggestions on acquisition financing, continuous filing, the “ordinary course” rule, and choice of law relating to royalties. IPIC also provided detailed comments back in April. Without the prodding of IPIC and perhaps my occasional blogs, I doubt that there would have been any consultation.

The problem for most readers of this blog, and even its author, is that these several hundred pages of documents are written in very inscrutable international bureaucratese about very technical stuff at the edge of IP, bankruptcy, insolvency, licensing, and banking/lending law. Even if one has the time to read all of the documents, this is very tough going. There are probably only about a couple of dozen people in Canada who can make much sense out of them, and probably less than a handful of people who have serious expertise in all of the necessary areas.

We struggled with all of this almost a decade ago when the late lamented Law Commission of Canada looked at the issue - and we did come up with a perfectly readable book that I edited, still available here.

But the current landscape is quite unreadable. Given the undoubtedly large investment made by Canada in the time and travel costs of providing a Chairperson and three experts to advise her for this UNCITRAL Working Group VI efforts over the several years, I would have thought that Canadians could be provided with a few pages of explanatory documents about what is going on and how it may affect them.

I've been told that the UNCITRAL soft law initiative is consistent with Canadian law. That is not without irony because Canadian law is not exactly very clear on lots of fundamental questions, as anyone who reads my book will quickly see. Little has changed since that book was published in 2002. The UNCITRAL efforts will presumably provide a framework for other countries thinking of legislating in this area. This will supposedly benefit Canadians seeking to do business in such countries. If this is so, is it too much to ask that our government inform Canadians what this is all about in language that Canadian lawyers, bankers and other stakeholders can understand?

These issues are potentially very important for those in sectors such as film, sound recordings, software, and high tech generally where financing deals can readily involve IP as collateral, if there is sufficient expertise to do such deals. Indeed, most of the discussion at last week's “consultation” concerned acquisition financing, presumably a hot topic in these sectors. There was considerable confusion about what version of the latest document from UNCITRAL will be “official” on this issue.

Unfortunately. the Department of Justice, which is leading Canada's participation, has no interest in providing any explanation of the UNCITRAL documents to Canadians and the consultation effort has been invariably been passive, infrequent (only two or three occasions of which I am aware) and on the eve of any of the meetings in New York or Vienna, Consultation requires more than providing a link to UNCITRAL's website.

One would hope that Canada's expert team could provide a brief of a few pages outlining what this Guide and its IP Supplement will do, Canada's role in this process, and why Canadians should be interested. Above all, we need to know the main features of the proposed soft law regime. Surely with all of the expertise our delegation has, and the fact that we Canada has invested hundreds of thousands of dollars or more in providing the chair and other support for this effort, the provision of an explanatory document is not too much to ask. It might even foster investment and innovation.


Monday, November 02, 2009

The 10th Anniversary of the WIPO UDRP

Congratulations to WIPO and DG Francis Gurry and Director Erik Wilbers on the 10th anniversary of WIPO's UDRP ("Uniform Domain Name Dispute Resolution Policy") initiative.

We take the UDRP now for granted because it was and is a simple, elegant and efficient method of dealing with a very pressing problem, namely the registration and use in bad faith of domain names that are identical to or confusing with a trademark or service mark in which the complainant has rights and where the registrant has no rights or legitimate interests in respect of the domain name. But it was not an obvious solution at the time and WIPO deserves much credit.

WIPO under Francis Gurry and Erik Wilbers came up with and implemented a solution that worked - and all without a treaty. This was critical to establishment of ICANN and ICANN's initial credibility. Indeed, ICANN did not yet exist when WIPO started its UDRP consultation process in 1998. The WIPO Arbitration and Mediation Center has now processed more than 16,000 decisions to date - a truly remarkable record. They have very tight schedules and deliver speedy, fair, efficient and inexpensive justice. I'm pleased to have been involved in some of these cases as a panelist.

A very recent positive development approved by ICANN on October 30, 2009 concerns the WIPO "eUDRP" process, will will do away with paper filings - except for the original service of the complaint notiice, which will be done in paper to a physical address as a safety valve to ensure proper service.

Also in the works is a "Fast Track" procedure that will provide a more summary determination in obvious cases, while still preserving full recourse to a full three person panel determination. This will account for the fact that about 25% of cases are settled and 75% of the rest proceed by way of default.

Here's Francis Gurry talking about the past, present and future of the UDRP at the recent conference celebrating the tenth anniversary.


Hill Times Policy Briefing on Copyright

The Hill Times has a policy briefing on copyright available here.

This includes statements from both Ministers and pieces by Charlie Angus, Michael Geist, Simon Doyle, Giuseppina D'Agostino and myself.

Mine is entitled "Canadian Copyright Collectives and the Copyright Board After 20 Years: Does the System Serve its Purpose?"