Copyright Term Extension Notwithstanding the Evidence?

Concerning term extension of sound recordings, the UK government as per Minister David Lammy has decided to ignore the Gowers Report that it had commissioned. This follows the volte face of the European Commission, which has has likewise decided to ignore the independent analysis it had commissioned from Prof. Bernt Hugenholtz et al. Once again, lobbying trumps logic.

An impressive who's who of UK academics has signed an open letter dated February 24, 2009 to Minister Lammy challenging him to present "any evidence" on which the Government's policy reversal is based. This should bevery interesting because virtually all of the credible and independent evidence points the other way.

The letter concludes:

There has been some talk of 'moral arguments' for extension but it is hard to discern a compelling 'moral' case for a proposal whose prime effect is to benefit major label shareholders and a few, already highly successful, artists while imposing significantly greater costs on new creators, the general listening public and the custodians of our cultural heritage.

As Gowers concluded, and the Government has until now consistently reaffirmed, policy-making in this area should be evidence-based and designed to promote the broader welfare of society as a whole. Policies that appear to reflect nothing more than lobbying will only perpetuate the "marked lack of public legitimacy" which the Gowers report lamented — and discourage those who wish to contribute constructively to future Government policy-making in these areas. We therefore call on the Government to present any evidence that has led to this change of policy.

(emphasis added)

And by the way, if a group of academics in the UK can get together and sign a joint open letter on an important public policy issue, as we also sometimes see in the USA, why has this never happened in Canada?

HK


PS: Here's a video of Becky Hogge of Open Rights Group addressing EU MEPs:


Becky Hogge: Speech at Sound Copyright conference in the EU Parliament 27.01.09 from Open Rights Group on Vimeo.

RIAA RIP?

This blog normally doesn't deal with rumours. But this one about massive RIAA layoffs and possible reorganization and merger with IFPI and a rethinking of its failed strategies is getting some serious coverage in Wired and Techdirt.

The stories seem to trace back to this posting.

Could it be that the major labels are finally realizing that there is something called the internet that could be beneficial to them and there are people called customers who should not be sued and/or deprived of their internet access?

Maybe its time for Hope and Change...

HK

Authors Guild Views on "Kindle Swindle"

Roy Blount, the President of the Authors Guild, has an op-ed in today's NY Times enticingly entitled "The Kindle Swindle?" It concerns the latest version of Amazon's portable book reading device that can read aloud using a computer synthesized voice (choice of male or female), in contrast to a classic "audio book" that will be read by one or more professional actors or the author. Previous Kindles were designed primarily for reading from the screen.

The new Amazon Kindle can "read" the book using speech synthesis technology, which is hardly a new development as such. However, the Authors Guild is concerned about its deployment in the very user friendly (except to blind people) Kindle format:

Blount says:

What the guild is asserting is that authors have a right to a fair share of the value that audio adds to Kindle 2’s version of books. For this, the guild is being assailed. On the National Federation of the Blind’s Web site, the guild is accused of arguing that it is illegal for blind people to use “readers, either human or machine, to access books that are not available in alternative formats like Braille or audio.”
...

The guild is also accused of wanting to profiteer off family bedtime rituals. A lawyer at the Electronic Frontier Foundation sarcastically warned that “parents everywhere should be on the lookout for legal papers haling them into court for reading to their kids.”

For the record: no, the Authors Guild does not expect royalties from anybody doing non-commercial performances of “Goodnight Moon.” If parents want to send their children off to bed with the voice of Kindle 2, however, it’s another matter.

HK

Three Strikes Now Into Overtime in NZ

The "three strikes" battle is now into overtime in New Zealand. Suddenly, the odds have turned around from what seemed like a done deal.

The overwhelming protest against the the "three strikes" legislation due to take effect in NZ on February 28, 2009 has caused the Government to delay its implementation.

Prime Minister John Key said today that its implementation date would be pushed back to March 27 to see if the sector can come up with a workable code of practice.

“We are hoping that by that time we will have come up with a voluntary code of practice,” said Mr Key.

If one could not be agreed then the section in question would be suspended, he said.

Here's the report from 3News.

While this ain't over 'till it's over, this is already a sobering lesson to any government that thinks it can painlessly implement "maximalist" copyright "made worse in Canada" legislation based upon American law and the whining of American lobbyists or their Canadian proxies.

It is well known that the American entertainment lobby was very unsatisfied with Canada's proposed "notice and notice" regime, one of the few sound, balanced and "made in Canada" aspects of Bill C-61. In fact, this is one of the reasons why the IIPA (basically an emanation of a boutique Washington law and lobbyist firm representing certain major IP trade associations, including the RIAA and MPAA) has accorded Canada the honour of being nominated to the USTR's 301 "Priority Watch List" for 2009, as it has since Canada was promoted from the more plebeian mere "Watch List" in 2007.

The Americans have been trying to plant "three strikes" in NZ and elsewhere (e.g. France, UK) for some time. Let's hope that the Canadian government doesn't give this the time of Minister of International Trade Stockwell Day.

HK

Cutting at NRC & CISTI

The Ottawa Citizen reports that the the NRC is cutting up to 300 jobs. NRC is Canada's acclaimed National Research Council. The cuts will affect its very important library and its publishing arm will be privatized:

...the Canada Institute for Scientific and Technical Information (CISTI), the country’s national science library and a leading publisher of scientific information, is to be streamlined into a smaller unit. The Research Press, the publishing arm of CISTI, could be turned into a private company.

It's too bad when things that the government has done so well for so long get cut and privatized. The NRC has been a good advocate for research, innovation and access to STM knowledge.

Rumours of the eventual privatization of the CBC - another producer of intellectual property that the private sector cannot or will not do nearly nearly as well - are becoming more and more credible.

Certain areas of research and culture are "public goods" and "public services." There are many things in government that could be more efficient. Cutting public goods and services and handing them over to private interests should be a last resort - especially when important STM and cultural IP are involved.

HK

Cameras in the Courts

There is a big debate in the First Circuit (Boston) over whether proceedings in the RIAA v. Tenenbaum case should be webcast. A hearing is scheduled on the webcasting issue for April 7, 2008 in the First Circuit Court of Appeals.

No doubt, the O.J. Simpson trial in 1995 and the antics of the lawyers and even the way the judge handled that case have set the cause of cameras in the court room back many years in the USA.

However, civil proceedings are not the same as criminal proceedings. Most aspects of a civil proceeding are very technical and often less than electric in terms of excitement, to put it mildly. Grandstanding and theatrics usually backfire badly when used in front of experienced judges.

The RIAA has spent years seeking publicity for its so called "antipiracy" efforts against some 30,000 ordinary citizens in the USA. Now, in the face of the involvement of Prof. Charlie Nesson of Harvard, they want to put a lid on this publicity. Anyone who has seen Charlie in action knows that he has a certain flair and charisma. But the RIAA has some of the best lawyers in the country - some with far more actual courtroom experience than Professor Nesson. (Actually, now, one of their very best - Don Verrilli - is no longer available because he is now at the DOJ, but that's another story.) The RIAA is hardly at a disadvantage. It has nothing to fear - other than potential exposure of the dissection of its many legal Achilles' Heels.

The Courts are opening up in Canada - witness the wonderful development of live webcast and overnight archiving by the Supreme Court of Canada, launched just this week.

The internet should enable greater access to justice. Transparency and open courts are very important in that respect. Let's hope that the trend to webcasting proceedings of great importance - especially civil and appeallate - continues.

HK

A Responsible Journalism Defence in Canada?

(revised and updated)

A landmark libel case was heard today in the Supreme Court of Canada ("SCC") , argued by a broad range of media interests and a bunch of very impressive counsel. Richard Dearden acted for the appellant and Ronald Caza acted for the Respondent. There were several interveners' counsel.

It involved Danno Cusson, a former OPP constable, who became famous and then infamous right after 9/11 when he went to ground zero with his dog to assist in the search for survivors. The Ottawa Citizen raised questions as to whether Cusson had misrepresented himself as an RCMP officer, whether he and his dog were trained for such K-9 rescue work, and whether he may have actually hampered the rescue effort, etc. Cusson won $100,000 for libel at trial. The Ottawa Citizen lawyer today repeatedly referred to Cusson's dog as a “pet”.

The Ottawa Citizen lost at trial and on appeal, but scored a huge victory on appeal by getting recognition in principle of the "responsible journalism" defence, albeit with a ruling that it couldn't be applied in the circumstances and on the record of this case because "the standard of responsible journalism was simply not litigated at this trial." The Citizen appealed. The issue of whether there is an adequate record for the SCC to decide these weighty issues in this instance is clearly important and contentious.

Big questions coming out of this include how far Canada will go towards the more liberalized standard for journalists now in effect in Australia, New Zealand, UK and - of course - the USA where the NY Times v. Sullivan "absence of malice" standard has ruled for more than 40 years. An important new decision that was the talk of the town today from the House of Lords (the Jameel decision, per Lord Hoffman) was rendered after the trial and before the appeal in this instance, although the previous House of Lords decision (Reynolds) on which Jameel was based came before this litigation was commenced. The Reynolds/Jameel defence is known as the “responsible journalism” defence. It doesn't go quite as far as NY Times v. Sullivan but goes significantly farther than Canadian courts have gone before. It basically gives the “right to be wrong” to a journalist acting responsibly in reporting a matter of public interest.

Of course, NY Times v. Sullivan goes even farther and held that holds that a public official cannot recover damages for defamatory statements relating to his or her official conduct without proof of actual malice, namely, that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. It is often said that without that 1964 decision Woodward and Bernstein would never have been able report their Watergate Story and Nixon would never have had to face the consequences of the cover up. However, for better or worse, NY Times v. Sullivan doesn't seem likely to be the law in Canada just yet - the Supremes flat out rejected it only fourteen years ago in the Hill v. Scientology case.

“Public interest” on one extreme would include questions such as whether a Member of Parliament had been bribed. At another extreme, counsel seemed to agree the affairs of soccer players' wives are not matters of public interest.

Can statements on matters of public interest that may turn out to be incorrect be published to the world at large as long as a "responsible" standard was involved? If so, does this defence replace or complement the ancient and honoured but much more limited defence of “qualified privilege”?

And a burning question for lots of bloggers, which repeatedly arose today, is whether the Court should allow any new defence to be available to anyone, and not just a "journalist" (whatever that means any more) working for a traditional media outlet. Interestingly, all of the appellants who represented vested media interests and are urging a significant liberalization of the law of libel the refrained from limiting the potential new defence they seek to traditional "accredited" type journalists.

Another interesting question to watch will be the Supreme's take on why the law has evolved as it has in the UK, which may have less to do with the evolution of the common law and much more to do with the incorporation the European Convention for the Protection of Human Rights and Fundamental Freedoms into U.K. law. The result so far seems fairly clear. On the one hand, the "responsible" journalism" defence has opened up and liberalized the law of defamation in the UK. But on the other hand, the newly constitutionalized right of privacy under the Convention has enabled a very public figures such as Max Mosley to successful sue for the the publication of very embarrassing but perfectly true private information. It is doubtful that Mosley would succeed in such a claim in Ontario, at least. Freedom of expression for the press is not necessarily that clear in the UK today. Cusson's counsel emphasized that there was no evidentiary basis to change the common law or to render a Charter based decsion and that European law was not persuasive.

Interestingly, British Columbia now has a Privacy Act that might - note the emphasis - provide some relief to a plaintiff in a Max Mosley situation. It has some interesting cross references to defamation law. Ontario has no such statute. So we could, in principle, see a situation in which the same article would be illegal in the Vancouver Sun but legal in the Toronto Star - with both clearly visible online throughout Canada. Privacy is not a right guaranteed by the Canadian Charter, unlike it is now in Europe.

We may also see situations where different provinces may yield different results in defamation that is published on the internet. Clear and decisive reasoning from the Supremes would go a long way towards resolving such potential conflict of laws problems that could seriously impede communication and freedom of expression in Canada. There still remains of the problem of internatioanl conflicts and a treaty may someday be necessary to solve the libel tourism problem

We will be surely be living in interesting times in respect of defamation and privacy laws in the years ahead. Some principles change slowly if ever. But sometimes the law lurches forward for better or worse. The SCC is now faced with a classic double dilemma of deciding whether the law of defamation needs to be changed in Canada, and if so, whether that change can come from the Courts throught the common law (and what about Quebec where the Civil Code prevails?) or can only come from the legislatures?

From an advocacy standpoint, it was interesting to note the unusual (for a Supreme Court case) reliance on "facts" by the Appellant (the Ottawa Citizen), including the use in reply of a large mounted stand up poster of then Constable Cusson in an RCMP uniform. This had been put in the record just a few days before the hearing.

Here's a good summary by Kirk Makin, veteran Supremes watcher.

And in a wonderful new development, the Court has begun webcasting. This is a very appropriate case to launch this practice. Congratulations to my old friend Daniel Henry, a great lawyer at the CBC, who appeared today for CBC and who has been fighting the good fight for cameras in the courtroom for about 30 years. Above all, congratulations to the Supremes themselves for making this happen - along with many other innovations and benchmarks for the rest of the judicial system.

Libel law is very complicated. It always was. Now, it is intersecting in interesting ways in Canada with the Charter and the internet. This case is difficult to call. We should know the answer - which may not be unanimous - in about six months, if the Supremes are true to form.

PS:

And in a clearly related development, the Supremes today granted leave to appeal in Grant v. Toronto Star, a libel case involving a wealthy businessman and friend of Premiere Mike Harris and contributor to the Ontario Conservative Party. According to the SCC summary:

On the date of a public meeting called by the Minister of Natural Resources with respect to the proposal, the Toronto Star published a front page article regarding the proposed golf course expansion. Inter alia, the article quoted a cottager, who said, “Everyone thinks it’s a done deal because of Grant’s influence – but most of all his Mike Harris ties”. Grant sued the newspaper for libel, claiming that the newspaper suggested that he had used political influence to circumvent the concerns of local citizens and to bypass the normal approval process.

Grant won at trial, lost on appeal and now has been granted leave to appeal by the SCC on an expedited basis. He was an intervener in the Cusson case on Cusson's side. Clearly, the Court has connected these two cases as sometimes happens and the judgments will likely appear back to back.

(rev. Feb. 19, 2009)

RIAA Propaganda - Grades 3-8

In a school propaganda campaign that actually makes the late and unlamented Captain Copyright caper by Access Copyright seem almost reasonable by comparison, the RIAA is after little kids from Grades 3 to 8 - where "piracy" apparently rules.

Dear Parent: Your child is participating in Music Rules!, an educational program designed to help lay the foundation for respecting all forms of intellectual property, especially music recordings. Made possible by the Recording Industry Association of America, this program also promotes musical and artistic creativity and encourages children to use computer technology responsibly.

In school your child is learning the rules against “songlifting” – a new term for making copies of music recordings without paying for them. Like shoplifting, songlifting is illegal, and as your child learns why, he or she will also learn the basic principles of copyright protection and how they apply to all types of intellectual property.

This campaign introduces the concept of "songlifting" and the notion that any unauthorized download is a $0.99 loss. That's a good exercise in arithmetic to train these emerging scholars, isn't it?

I invite readers to take lots of GRAVOL® and go through this to extract and disseminate the most ridiculous and offensive material. How do we count the ways?

It's hard to imagine how any conscientious school officials or teachers could be complicit in the dissemination of such propaganda.

I hope that the CRIA isn't getting ideas from this. So far, it seems to have been somewhat more subtle. After all, this is Canada.

HT to Ray Beckerman for ruining may appetite for lunch today.

HK

National Federation for the Blind and the Authors Guild

Here's the American NFB (National Federal of the Blind press release re Kindle 2.0 and the Authors Guild statements.

Re the Authors Guild, the NFB says:

Dr. Marc Maurer, President of the National Federation of the Blind, said: “The National Federation of the Blind supports all technologies that allow blind people to have better access to the printed word, including the ability of devices like the Kindle 2 to read commercial e-books aloud using text-to-speech technology. Although the Authors Guild claims that it supports making books accessible to the blind, its position on the inclusion of text-to-speech technology in the Kindle 2 is harmful to blind people. The Authors Guild says that having a book read aloud by a machine in the privacy of one’s home or vehicle is a copyright infringement. But blind people routinely use readers, either human or machine, to access books that are not available in alternative formats like Braille or audio. Up until now, no one has argued that this is illegal, but now the Authors Guild says that it is. This is absolutely wrong. The blind and other readers have the right for books to be presented to us in the format that is most useful to us, and we are not violating copyright law as long as we use readers, either human or machine, for private rather than public listening. The key point is that reading aloud in private is the same whether done by a person or a machine, and reading aloud in private is never an infringement of copyright.

Re Amazon, they say:

“Amazon has taken a step in the right direction by including text-to-speech technology for reading e-books aloud on its new Kindle 2,” Dr. Maurer continued. “We note, however, that the device itself cannot be used independently by a blind reader because the controls to download a book and begin reading it aloud are visual and therefore inaccessible to the blind. We urge Amazon to rectify this situation as soon as possible in order to make the Kindle 2 a device that truly can be used both by blind and sighted readers. By doing so, Amazon will make it possible for blind people to purchase a new book and begin reading it immediately, just as sighted people do.”

This all sounds pretty sensible to me. Hopefully, Canada will be active in promoting a WIPO treaty for rights of the blind.

HK

Arts Funding Fiasco Redux?

Many believe that the Conservatives would have had a majority government last year but for certain comments about arts galas and a relatively small (in the grand scheme) but highly noticed announcement of a $45 million cut in cultural funding.

The recent budget announcement of $25 million in federal funding for grand international arts competition that would presumably put Toronto - already "centre of the universe" in Canada - over the top as "centre of the universe" in the world cultural world - appears to be backfiring on all cylinders.

See here, here and here.

John Barber of the Globe and Mail says:

One can certainly understand the Prime Minister's frustration. He scorns black-tie galas and he gets pasted. Contrite, he offers an endless succession of black-tie galas sprinkled with international celebrities to the city that most values such events. And he gets pasted.

This is shaping up to be perfect - and once perfectly avoidable - storm at the perfectly worst of all economic times. It involves Quebec v. Rest of Canada, Toronto v. Ottawa, good economics v. not so good economics, good partisanship v. good or maybe bad policy - and simple human issues such as envy and need.

And apparently dozens of the most esteemed "partners" in this grand project organized by Messrs. David Pecaut and Tony Gagliano had never heard of it when it was proudly announced in the recent budget.

There are real Canadian artists who really do need real help to tour and promote their work and their country. We already have - or at least once had - working programs and institutions run by real professionals that once helped make this happen.

This new initiative may attract a lot of attention - for mostly the wrong reasons. But it won't help the Canadian artists who desparately need help the most in these desperate times.

I have no doubt that the current Government means well with this initiative. Maybe they could have used or still could benefit from some better advice to make every available dollar for the arts in Canada really count and deliver.

And to rescue the CBC from being run into the ground and what's left of it ultimately being privatized. That's another story, albeit not at all unrelated.

HK

Copyright and Canada's Trade Deficit - Cui Bono?

Speaking of international trade, Canada has now posted its first trade deficit in 32 years. The amount was $458 million. It's interesting to note that on the cultural services front, including copyright royalties, Canada has perennially run a deficit which at recent report was over half a Billion dollars a year according to Statistics Canada.

It's also interesting that Canada has 36 copyright collectives - more than probably any other country - which take in almost half a Billion dollars a year, much if not most of which leaves Canada directly or indirectly. While Canada is quite properly respectful of both adequate and effective copyright protection and the principle of national treatment, it would seem somewhat foolhardy to take deliberate steps to exacerbate the deficit in cultural services.

Perhaps it is time to take a harder look at implementing laws and setting tariffs that continue to needlessly increase this outflow of payments, which in many instances derive from rights and tariffs that either don't exist in the USA or effectively operate at far lower rates.

Perhaps it is time for policy makers to note that the most strident whining for excessive copyright protection in Canada invariably comes from certain trade associations whose major membership consists of US based entertainment companies, which would tend to have little interest in Canada creators and rather more interest in their members' stock prices and profits.

Always remember: Cui bono?

HK

Protecting Against Protectionism

A few days ago, I raised the question of whether America's promise that its "Buy America" provisions in its stimulus package will "be applied in a manner consistent with United States obligations under international agreements" should satisfy Canada.

Well, it seems that trade Minister Stockwell Day is happy. David Akin provides more detail. Minister Day says:

If the bill in its final form which is presented to the President, if it has the language that says clearly from the President's point of view that nothing in that agreement should in any way violate their international agreements with us or with anyone else, then that will be some comfort to us.

Does this mean "mission accomplished"? Does this mean that we can all breathe easier now, knowing how deeply committed the US Congress is to international law and free trade? (As if!)

Fortunately, Prime Minister Harper seems to be a bit more skeptical.

Let's see what unfolds with President Obama's visit to Canada this week.

HK

More Multiplicity of Multiple Copyright Tariffs?

Last year, the Neighbouring Rights Coalition of Canada (“NRCC”) filed a proposed tariff that raised more than a few eyebrows. It seeks money from broadcasters for the communication to the public by telecommunication of sound recordings embodied in cinematographic works and from motion picture theatre operators for the performance in public of such recordings . SOCAN gets paid by these same folks for these same activities, So why would anyone object to the basis of the tariff for the NRCC? After all, NRCC has been playing catchup with SOCAN for years, and the Copyright Board has basically accepted that it can do so, subject to such inconvenient little details as the eligible repertoire requirement, which in theory keeps much of the neighbouring rights payments in Canada. Moreover, multiple tariffs for the same activity are nothing new in Canada.

The reason several major parties did a double take is that the definition of “sound recording” in the Copyright Act explicitly excludes a “soundtrack.”

The definition of “sound recording” is this:

"sound recording" means a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work;
(Emphasis added)

The definition of “cinematographic work” is this:

"cinematographic work" includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack.

One might well ask “What part of the these definitions is not clear”?

The NRCC filed for a tariff, notwithstanding the above apparently clear wording. Despite the apparently clear wording, the Board published the proposed tariff, which forces parties to engage in a costly objection process. Some major parties have objected at the outset on the obvious jurisdictional basis that the definition of sound recording explicitly and clearly excludes the soundtrack in a cinematographic work.

In a procedure remarkably reminiscent of the “iPod tax” tariff case from 2007, the Board has required the parties to make submissions on this jurisdictional issue and to potentially hold an oral hearing to determine whether the tariff can proceed. The NRCC has filed a 30 page memo with references to law from the USA, UK and mostly Australia - and relatively little about Canada. Perhaps this is because the Canadian statute clearly speaks for itself in this instance. Interestingly, the Supreme Court of Canada has twice recently refused to follow Australian copyright precedents that were essential to the arguments being advanced by ultimately unsuccessful plaintiffs, notably in the CCH and Kraft cases. The Australian copyright statute is very different than Canada's. Although they descend from statutes that once were first cousins or maybe even siblings, the family resemblance between the recent generations of these two statutes is no longer easy to discern, following many legislated and judicial mutations.

Whatever the Board decides will likely end up in the Federal Court of Appeal (“FCA”), as it did in the “iPod Tax” decision, in which I was involved. Without specifically commenting on the merits of the NRCC position and the points in its memorandum, I will say that it is entirely possible that the FCA might be comparably "brusque" in this instance, if the Board decides that the hearing should go forward based on the NRCC arguments. Moreover, if NRCC is right in this case that its position is based on a “plain reading” of the Canadian statute, one wonders why it took eleven years to figure this out. The law that NRCC relies on came into force in 1997.

HK

Read My Lips: Don't Move Your Lips While Reading in Public

Perhaps we need an annual award for the most excessive copyright claim of the year. Surely a contender for 2009 would be the Authors Guild assertion that the new Kindle device from Amazon that reads a book you have bought and paid for out loud via computer synthesized voice infringes copyright by creating a derivative work and a performance in public. We are not talking about the unlicensed use of an actor's or author's reading. We are talking about a computer synthesized speech to text device, which is old technology. Here's an article on the Author's Guild assertion.

The Authors Guild should not be taken too lightly, however. They led the charge against Google for its book digitization project. In this case, however, they appear to be in a realm of fantasy.

It didn't take long for bloggers and reporters to begin to wonder what if they are right.

Here's just some of what might happen:

1. It would be illegal to read bed time stories to your children. They will have to read to themselves, once they learn to read. Which may be difficult in the Authors Guild scheme of things.

2. It would generally be illegal to read out loud. Anywhere, but particularly in a public place. If the Authors Guild is right about what is “in public”, everyone should avoid even moving their lips when reading on trains, planes, buses and in parks or on the beach. A good lip reader might be able to free ride. Come to think of it, it's a good idea in any event not to move your lips when you read.

On a seriously serious note, the Author's Guild assertions would render illegal technology long relied upon by the blind and visually handicapped.

HK

Fair(ey) Use of Obama Photo?

New York Times, Mannie Garcia/Associated Press

Here's a good article about the preemptive law suit (complaint is accessible through the article) started by Shepard Fairey, the artist of the famous Obama poster that was based on an AP Photo (both shown above). Interestingly, the photographer, Mannie Garcia, says that he and not AP owns the copyright in the photo and he has no problem with Fairey' creation.

"I feel very proud that I made the photograph," Garcia said. "I never would have imagined that it became what it is, and it's pretty cool. The AP is being very aggressive with Fairey, and I don't want to be a part of that. My last conversation with the AP was that I own the copyright, and that's what I'm maintaining."

Mr. Fairey is a very lucky man to have some heavy hitting legal talent behind this claim, including Anthony Falzone of the Stanford Law School Center for Internet and Society and Mark Lemley, renowned Stanford Professor and litigator of important cases.

While the fair use issues are fascinating and important, the interesting short term question from a procedural standpoint will involve AP's reaction, especially in view of the photographer's assertion that AP doesn't even own the copyright.

The NY Times also has a good article here.

PS - it seems that the renowned and/or notorious Mr. Fairey is getting a lot of publicity on other legal fronts, having been prominently arrested in Boston the other day on the way to a major opening of his show at the Institute of Contemporary Art in South Boston. The Boston Globe reports on the kerfuffle, which could be considered pretty impressive performance art.

If, as some say, all publicity is good publicity, then Mr. Fairey is doing exceptionally well.

Mr. Fairey may become Mr. Fair Use.

HK

Is Canada Protecting Itself From Protectionism?

The Toronto Star is reporting that Stockwell Day is essentially already claiming victory in the business of the nearly trillion dollar “Buy American” bill.

Speaking in Toronto this morning, he also said Ottawa must remain vigilant as the legislation moves forward.


"This shows the importance of and the power of diplomacy," Day told a Bay Street audience of about 100 people at the Toronto Board of Trade.


He emphasized that Ottawa's "full-court press" to counter growing protectionism in Washington is being successful. The minister said there has been "enormous pressure" on Ottawa to enact retaliatory legislation against U.S. business, but he and Prime Minister Stephen Harper resisted, preferring the diplomatic route.


"Prime Minister Harper was the first world leader to raise this issue and speak against it," he said.


Noting that Canadian firms ship $11 billion in steel to the U.S. annually, Day warned that a "Buy American" policy on Washington's stimulus spending projects would have severely hurt Canada.

If Minister Day and the Prime Minister really believe that a clause to the effect that the bill will be "applied in a manner consistent with U.S. obligations under international agreements” will make this issue go away, we could be in big trouble.

Canada got seriously outsmarted on IP negotiations (particularly on the pharmaceutical patent file) and many other issues with the Americans in the FTA and NAFTA, which set the stage for the WTO agreement and much that has happened since. Now, the Americans have their sights on copyright.

Besides, we don't want to have to start a NAFTA or WTO dispute to figure out what “in a manner consistent with U.S. obligations under international agreements” means on the basis of a particular case or potentially thousands of them. These cases take many years, cost a fortune to prosecute, and have uncertain outcomes. Moreover, when the Americans don't like the outcome, they basically ignore or even flout it.

If Canada and other major G-20 powers stick together, President Obama will have not only the basis but the necessity to play hardball with Congress and to veto a protectionist bill. If Canada runs off and declares victory on the basis of something as flimsy as this, we will have played right into the protectionists' hands.

And we may never know what was discussed in the corridors that led to The Star reporting that:

He [Day] emphasized that Ottawa's "full-court press" to counter growing protectionism in Washington is being successful.

Besides, we should be entitled to assume that American law will be applied "in a manner consistent with U.S. obligations under international agreements." What else have the past 2.5 decades of trade negotiations been about? That's hardly a concession.

In Canada, at least, there is a presumption that all statutes, both federal and provincial, do comply with international treaties and should be interpreted in such a way as to ensure compliance. Thus, the kind of language that Minister Day seems so happy about would add nothing to the meaning of a Canadian statute. I would be surprised if things are different in the USA.

The new wording is at best redundant and political. More likely, it is a smoke screen. Minister Day ought to be very careful about proclaiming what amounts to "Mission Accomplished" at this stage. Once again, "it ain't over 'till its over."

HK

Verrilli to DOJ - Three Strikes?

President Obama has just appointed another big time content industry lawyer to DOJ.

Donald Verrilli, of Jenner and Block, who fought and won the Grokster case for the music industry in the US Supreme Court along with many other important caess, has been named as associate deputy attorney general. This follows the recent appointment of Tom Perrelli of the same firm as associate attorney general.

This also follows the appointment of Neil MacBride of the BSA, who was the person responsible for the BSA's highly successful but ethically troubling "snitch" reporting program that encourages disgruntled employees to find and report illegally installed software with a view towards retribution and reward.

This makes three appointments to senior DOJ positions of very competent and potentially very hawkish enforcers who have served the music, motion picture and software industries very well indeed.

Does this portend a greater policy and/or enforcement role for DOJ in IP?

Will we see the appointment of someone with a record of serving the user side or the public interest side in IP?

Or do these three strikes now establish a pattern to be continued?

HT to Michael Geist, who is now BTW, the number one ranked political blogger in Canada.

Update February 5: Declan McCullagh has a more thorough analysis of Verrilli's involvement with policy sensitive files such as the Jammie Thomas, Viacom and Cablevision cases that are all very much "live" and in which DOJ has played or could play a key role. Declan also says:

During the campaign, when CNET News asked Obama for his views on copyright, he replied: "As policymakers, we are in a constant process of examining our laws to ensure that the protections we place on intellectual property are sufficient to encourage invention without hindering innovation that builds on previous work or unfairly limiting consumers from using the goods they purchase in a way that is fair to creators."

That was, unfortunately, rather vague. Now it's a bit more clear where he stands.

HK

Our Neighbour and Neighboring Rights

Billboard reports that:

As expected, the Performance Right Act has been reintroduced jointly to Congress today with Senator Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, and Senators Orrin Hatch (R-UT), Dianne Feinstein (D-CA), Bob Corker (R-TN), and Barbara Boxer (D-CA) submitting it in the Senate, while in the House by Representatives, it was sponsored by Rep. John Conyers (D-MI), chairman of the House Judiciary Committee, and Representatives Howard Berman (D-CA), Darrell Issa (R-CA), Marsha Blackburn (R-TN), Jane Harman (D-CA), John Shadegg (R-AZ), and Paul Hodes (D-NH).

While radio already pays songwriters for songs they broadcast over the air, the bill would require royalties to also be paid the artists and musicians performing the songs and master recordings copyright owners, as well.

Now, it's easy to cheeky and point out how the lack of legislation to date in the USA on these rights shows once again how much stronger and better Canadian copyright is than American, as I've done elsewhere.

But, if the Americans ever get around to enacting real neighbouring rights, it could cost a lot of money to Canadian broadcasters and others whose liabilities are currently limited by the lack of automatic national treatment for neighboring rights under the Copyright Act. S. 22 provides a mechanism whereby the Minister "may" grant national treatment or material reciprocity under specified circumstances. There would be a lot of pressure on the Minister to declare that the Americans would be eligible for national treatment. While s. 22 says "may", there may be considerable pressure to treat "may' as "must".

In any event, if we ratify WPPT, there would be a mandatory requirement to provide national treatment to the Americans on these rights if they have enacted similar provisions.

There are big bucks at stake here...

HK

Peeking at ACTA

KEI has unearthed some proposed ACTA documentation, with excerpts available here.

Jamie Love has a piece on it in the Huffington Post here.

Michael Geist has some analysis about where this is going here.

It looks pretty scary. And its just the tip of a potential iceberg.

For example, the proposals as quoted would criminalize some common behavior that is currently legal in Canada, even if there is " “no direct or indirect motivation of financial gain” and some of the targeted behavior might well otherwise be fair dealing.

The proposals would apparently empower a border official to provide potentially extremely confidential information to "rights holders" concerning shipments of goods that may turn out to be perfectly legitimate grey market or parallel imports. When expert IP lawyers and even the Justices of the Supreme Court of Canada can't agree on the time of day as to whether some goods are legitimate grey goods or infringing goods (e.g. Toblerone chocolate bars), how is a border guard supposed to know the difference? This is why we have Courts to deal with such matters, why we may need legislative reform, and why we most certainly wouldn't want to delegate such extraordinary powers to border officials.

A case in point is that some countries are trying to "to increase enforcement on goods in transit and blur the line between generic and counterfeit medicines at international organisations such as the Brussels-based World Customs Organization, the World Health Organization, and the Universal Postal Union" according to the reliable IP-Watch. Generic v. counterfeit? Parallel v. pirate? It's absurd to allow border officials to make these determinations.

Let's see if President Obama believes in "change" on this front both in terms of the the Americans' apparently intended substance of the agreement, and in the transparency of the negotiating process itself.

HK

Free Trade Fiasco?

The possibility of a trade war with the USA is heating up. The Democrats' first major piece of legislation in the 111th Congress concerns almost a trillion dollars worth of “stimulus”. It is H.R. 1. It includes a highly protectionist "Buy American" provision for iron and steel. Reports are that the Senate could make this bill even worse, going beyond iron and steel to all manufactured goods.

Most experts agree that there are extremely serious issues for the USA under NAFTA and WTO - presumably involving such inconvenient details as national treatment, Most Favoured Nations (“MFN”), and government procurement provisions. However, it seems that Congress believes that the USA can simply flout international law. That might be good politics for practical and political purposes in the short term, but such thinking led to the “Great” depression.

Canada is rightly protesting the “Buy American” provisions in the massive stimulus bill now before Congress. However, there are persistent reports in reliable media such as here and here that Canada is seeking a special deal. That could be very problematic, even though the short term politics might seem attractive to the current Canadian Government.

First, such a deal may incur the wrath of others such as the Europeans, Japanese, and the BRIC block (Brazil, India, China, and Russia) with all of which Canada also enjoys important trade relations and whose good will Canada will need in the future as it rightly attempts to wean itself away from dependency on US trade.

Such a deal might also be illegal as such because of WTO MFN and other provisions.

Some are suggesting a "Buy North American" provision, that would include Mexico and presumably solve any NAFTA issues. However, that would not likely go over well in the rest of the world.

Moreover, what would be the most likely secret price of such a deal? Would it include a promise not to curtail oil and gas supplies to the USA, or not to fight about water, to stay longer in Afghanistan, or - and this where this gets quite relevant to this blog - to enact a DMCA North version of American copyright law satisfactory to the American entertainment industry? It is common knowledge that the Democrats have always been close to Hollywood and the music industry, and Obama's appointments to date indicate no “change” in this respect.

President Obama must veto the bill if it is as bad and as illegal as the experts say. Otherwise, his halo will be irreparably damaged, along with the whole international trade system. Canada and her allies should stand united on this front.

UPDATE:

February 4, 2009

President Obama has been saying reassuring things about this that are being reported at the moment mostly in non-American media. However, stuff can happen quickly and unpredictably in the American Congress. And whether Congress will listen to the new President at this stage and whether the new President would ultimately veto such a landmark bill if Congress does not listen, remain to be seen. Some influential Democrats, such as House Transportation and Infrastructure Committee Chairman James Oberstar (D-MN) are today, according to Inside US Trade, reportedly threatening to oppose the package unless their desired protectionist provisions are included.

When it comes to American legislation, it's safe to assume, in the words of that great American pundit Yogi Berra, that "It ain't over 'till it's over."

Moreover, in the US Congress, it's never really "over."

PS:

ICTSD has a very good analysis - the best I've seen to date - here.

HK

Unfocussed GBS, HD, & the Christopher Plummer Legacy

George Bernard Shaw (1856-1950) was perhaps the greatest English language playwright since Shakespeare. His works were full of biting social comment, much of which rings as true today as it did in the late 19th and early 20th century when he was at his peak. His published work is now, of course, in the public domain in Canada, since Canada has sensibly stuck to a life plus 50 year copyright term.

So, Shaw’s copyright in Canada, at least, is one thing that the producers of the magnificent Stratford production of Shaw’s Caesar and Cleopatra starring the incomparable 78 years young Christopher Plummer and the new American star Nikki James didn’t have to worry about. The play dates from 1901. It’s all about how to manage empires and enemies, and many other topical things. Bush and Cheney really should have read it before they blundered into Iraq.

CTV/Bravo has produced a high definition recording of the recent Stratford production by artistic director Des McAnuff.

It was a thorough delight and filled dozens of Cineplex theatres across Ontario this past Saturday January 31, 2009 at more than $20 a seat. This goes to show that people are quite prepared to pay well for digital value.

However, and I don’t mean to sound petty or ungrateful, much of the production was quite literally out of focus. Mostly, and ironically, it was the shots of Plummer that were blurry. Since none of the reviewers mentioned this, I was tempted to think that the fault may have been with the local projectionist or equipment. But on reflection, this was not the case because much of the production was indeed perfectly well in focus. And I’ve seen numerous Metropolitan opera productions in the same Cineplex Coliseum theatre in Ottawa that were perfectly in focus and otherwise perfectly presented. The Cineplex people know what they are doing and are very responsive to audience feedback, including in this case when I asked about the focus.

This is really too bad. With all of the usual Canadian film subsidies listed in the credits, and with the need to leave a legacy of Christopher Plummer worthy of his extraordinary work, one would have expected more technical competence. The Metropolitan Opera has been doing HD live - and I mean really literally live via satellite feed - for two years now and hasn’t flubbed a single shot. A Metropolitan opera production is much more complex in terms of HD production than a Stratford play. The Met uses virtually invisible remotely operated cameras that don’t disrupt the audience experience and get shots as close and in focus as can be imagined and then some.

This Stratford performance was taped with nine large cameras, mixed and edited afterwards. So, there can be no excuse for “out of focus” in this digital day and age. Certainly not for great events like Plummer playing Caesar. Not even for a Stéphane Dion video.

Plummer himself got producer credit for the production, along with the celebrated Canadian entertainment lawyer, agent, and otherwise polymathic and highly competent Michael Levine. So, although Shaw’s copyright term in Canada, at least, is not something that the producers need to worry about, they really do need to focus on getting this otherwise magnificent production in focus.

HK