Canada and the 301 Priority Watch List - “Now She's Hit the Big Time in the USA”

Canada has finally made it to the top level of the USA's “Special 301" list, as I have recently predicted. Here's the scoop, according to the USTR, which says that:

Canada is being elevated to the Priority Watch List for the first time, reflecting increasing concern about the continuing need for copyright reform, as well as continuing concern about weak border enforcement.

Canada is arguably the star of this year's report. Here's the portion on the Report featuring Canada:

Canada will be added to the Priority Watch List in 2009. The United States appreciates the high level of cooperation between our two governments in many important bilateral and multilateral IPR initiatives. The United States also welcomed the Government of Canada’s reaffirmation earlier this year of its 2007 and 2008 commitments to improve IPR protection and enforcement. However, the Government of Canada has not delivered on these commitments by promptly and effectively implementing key copyright reforms. The United States continues to have serious concerns with Canada’s failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties. The Unit ed States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada. Canada’s weak border measures continue to be a serious concern for IP owners. The United States hopes that Canada will implement legislative changes to provide a stronger border enforcement system by giving its customs officers the authority to seize products suspected of being pirated or counterfeit without the need for a court order. The provision of additional resources and training to customs officers and domestic law enforcement personnel would enhance IPR enforcement. The United States will continue to follow Canada’s progress toward providing an adequate and effective IPR protection and enforcement regime, including near term accession to and implementation of the WIPO Internet Treaties and improved border enforcement.

Meanwhile, it doesn't hurt to rhetorically ask again and again when the USA intends to:

1. Comply with and stop flouting the nine year old WTO Ruling as to its violation of the Berne Convention in the “s. 110" matter, by denying royalties to composers and authors for performances in countless small business establishments;
2. Get counterfeit merchandise off the street corners of midtown Manhattan; and,
3. Generally do something about the dozen or so ways in which American copyright law is weaker and worse than Canadian law, because Canada's is stronger and better, as I outlined at the Fordham Conference in 2008?

It's also useful to recall one of the last newpaper interviews given by the late, irreplacable and uniquely authoritative Sir Hugh Laddie who told The Times in a story on June 3, 2008 a few months before his death last year "Of course there is counterfeiting in China, but the same goes on in the US and Europe. Pro rata, the biggest source of pirated computer software in the world in the US.”

Canada is now in interesting company with China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Israel, Pakistan, Thailand, Venezuela.

Fortunately, Canada has traditionally taken this exercise with the appropriate grain salt:

In regard to the watch list, Canada does not recognize the 301 watch list
process. It basically lacks reliable and objective analysis. It's driven entirely by
U.S. industry. We have repeatedly raised this issue of the lack of objective
analysis in the 301 watch list process with our U.S. counterparts.

I also recognize that the U.S. industry likes to compare anyone they have a
problem with, concerning their IPR regime, to China and the other big
violators, but we're not on the same scale. This is not the same thing. If you
aren't on the watch list in some way, shape, or form, you may not be of
importance. Most countries with significant commercial dealings are on the
watch list.

(House of Commons, Standing Committee on Public Safety and National Security, No. 35, 1st Session, 39th Parliament (March 27, 2007), at 1150 (testimony of Nancy Segal).

As I've said before, it's too bad that the USTR can't put the USA on its own "Special 301" list. If analyzed objectively, I've little doubt where it would rank.

HK

Ticketing Ticketmaster?

The Government of Ontario yesterday introduced legislation to create an offence when related primary and secondary sellers make available for sale in Ontario tickets for admission to the same event.

This would presumably deal with the type of situations that gave rise to controversy earlier this year involving some of the Leonard Cohen concerts. It was alleged in some cases that “primary” market tickets were never effectively available to the public and that virtually immediately upon the release of the primary market tickets, or even allegedly beforehand, tickets were only actually available on the resale market through a related seller at drastically increased prices. Here's a news story.

Bill 172 was tabled yesterday by the Hon. Chris Bentley and is available here. It is short, sweet and even elegant in its conception. My concern, however, is that the maximum fine for a corporation is only $50,000. That's a large amount and would be a substantial deterrent if it applies per ticket, but certainly not in many cases if it applies only per event.

If that is the case, the maximum fine could be nothing more than a license fee - and a very small one at that - in many instances. For example, the Air Canada Centre in Toronto has a capacity of 19,800 seats in “full concert” mode. If only half of those seats were illegally resold at an average illegal markup of $200, that would be an illegal profit of $1,980,000 - i.e. almost $2 million. The reseller would presumably make even more from service charges. In such a case, a $50,000 fine would be barely noticeable and less than the cost of a one page ad in the Globe and Mail promoting the event in the first place.

A much higher fine may be needed, if this bill is to accomplish it purpose. Other Ontario statutes, such as the Consumer Protection Act, provide for corporate fines up to $250,000.

Ticketmaster doesn't seem too thrilled with with the Bill.

Another critical issue, moreover, is what the Competition Bureau is going to do about this. They didn’t even see an issue until their Minister Tony Clement told them to look at it. An update from the Bureau would be useful.

HK

Google Deadlines Delayed & Enter Antitrust

The Google settlement deadlines have just been delayed by about four months for the opt out and for the final fairness hearing.

Here's part of the press release:

NEW YORK, April 28 /PRNewswire/ -- The federal court overseeing the Google Book Search Copyright Settlement today extended the Opt-Out Deadline in the case from May 5, 2009 to September 4, 2009 (the "Extended Opt-Out Deadline"). The Extended Opt-Out Deadline is the new date by which class members must decide whether to remain in the Settlement Class and receive the benefits of the Settlement, object to the Settlement, or opt out of the Settlement.

The change in the Opt-Out Deadline has caused the Final Fairness Hearing date to be rescheduled, from June 11, 2009 to October 7, 2009. This is the new date of the hearing for the court to consider whether to grant final approval of the settlement. All other deadlines and key dates in the case remain the same, including May 5, 2009 as the date on or before which a book must have been scanned in order to be entitled to a Cash Payment.

PS:

The antitrust folks at the the US Department of Justice ("DOJ") have entered the fray, announcing, today, to nobody's great surprise, that they have begun an inquiry into the antitrust implications of Google’s settlement. According to the NY Times, there was a turf war (yet again) between DOJ and the Federal Trade Commission as to who would handle this. The DOJ prevailed - to nobody's surprise.

In Canada, we rarely have such competitiveness in antitrust matters between agencies. It could arise between the Competition Bureau and the CRTC - but rarely if ever has - because neither is very interested in antitrust enforcement in the telecom or broadcasting industries. Nor has the Competition Bureau ever exercised its mandate to become involved in Copyright Board matters. The Competition Bureau in Canada has basically taken a pass in recent years on anything involving intellectual property.

HK

The Specter Spectre

Sen. Arlen Specter's defection to the Democrats could be interesting for IP people.

He is said to like big pharma, which has a large presence in his state of Pennsylvania.

He was a bull on the IP Czar(ina) position and getting the FBI more involved in enforcement.

But he is bear on ACTA.

In other words, a "loose cannon" on IP.

Here's what Techdirt has to say about him.

The times in the USA just got a lot more interesting. Specter has always been interested in IP and it's possible that a subcommittee could be put in place to give him some scope.

HK

Google Agrees to Delay Settlement Deadlines

Google itself is indicating that a delay is desirable. Here's the CNET story with lots of links.

HK

"Three Strikes" Strikes Out in UK

UK Minister David Lammy has reportedly taken "three strikes" off the table, according to The Register:

The Government minister responsible for intellectual property has ruled out a 'three strikes' law denying internet access to illegal file sharers. David Lammy said cutting off users was not "the right road" for UK law makers.

HK

Canada Finally Guilty As Charged?

As we await in intense suspense the "Special 301" report from Washington, it is perhaps time for Canada to confess to its past piracy peccadilloes.

The NY Times has a dramatic exposé of Canadian piracy, counterfeiting, intermediary liability and cross border illicit commerce and piracy that has devastated the American music publishing industry by 50%. The American music publishers were sufficiently concerned that they held a three day conference about this "last week."

The thing is that "last week" was the first week or so of June, 1897. The technology involved was newspapers, the post office, classified ads and sheet music.

Here's the link to the NY Times story. See also below.

So, if the USTR can't come up with any current hard evidence for the "Special 301" blast we are expecting momentarily, or as a basis to check iPods and laptops and invade ISPs under ACTA, they can at say that Canada's piracy goes back at least to the 19th century.

Then, there are those who say that:

"The first American "pirate" was probably Benjamin Franklin (1706-90), who was, among other things, a Philadelphia printer who re-published the works of British authors in the eighteenth century without seeking their permission or offering remuneration."

The moral of the story may be that sometimes, maybe, you can step in the same river twice.

Or, that this is a new take on a "blast from the past."

HT to Cory and MG.

HK

Google Book Settlement Deadlines - May 5, 2009

For those who have not been following the Google Book Settlement saga, here is a reminder of the key deadlines:

* Claim your Books and Inserts: You can do this at any time, but in order to be eligible for Cash Payments for Books, you must complete your Claim Form on or before January 5, 2010.
* Opt out of the Settlement:Must be submitted online or postmarked on or before May 5, 2009.
* File an objection or notice of intent to appear at the Fairness Hearing: Must be postmarked on or before May 5, 2009.

There's a growing list of discontents that make strange bedfellows - ranging from Microsoft to the Internet Archive to Prof. Pamela Samuelson. Here's a posting with some good links.

Here's the latest from the NY Times, including reference to a request for delay of four months from the heirs of John Steinbeck and Arlo Guthrie.

The Hon. Marybeth Peters, US Register of Copyrights' comments are reported here.

Add to this a Quebec based publisher's lobby group, as advised by a colleague:

ANEL (Quebec's publisher lobby) issued a press release to instruct members not to take part in the Google Book settlement:

Of note, is this passage:
La position de l’ANEL est fort simple : depuis trois ans, les éditeurs de livres sont à pied d’oeuvre pour développer le marché du numérique selon les règles de l’art en matière de droit d’auteur. L’ANEL combat toute réforme de la loi canadienne qui permettrait une exception pédagogique « numérique »

Article on Barbara Ringer

(Library of Congress)

There's an article about the late Barbara Ringer in today's Washington Post.

HK

Thoughts Following the 2009 Fordham Conference

The annual Fordham IP Conference was held at Cambridge, England this year on April 15 and 16, 2009.

The plenary, copyright and trade sessions were interesting, though not as balanced as we have seen in the past. Moreover, there were several prominent absences of those who were expected to participate this year or who have done so frequently in the past. These included Francis Gurry, the new DG of WIPO, Hon. Marybeth Peters, US Register of Copyrights and Prof. Bernt Hugenholtz.

Hugenholtz is a leading European academic and was a consultant to the EC though his Institute for Information Law. Despite his credentials, his authoritative report recommending against sound recording term extension has been summarily discarded in favour of lobbyists’ positions by the same EC that commissioned it. One can read about this sorry episode here in an important posting by the IPKAT, including the report in question and a very trenchant comment from the late Sir Hugh Laddie who opined on August 22, 2008 shortly before his death:

I think it is worth pointing out that this refusal of the Commission to pay proper regard to the result of thoughtful and independent research is more than a blow to academics. What the Commission has done undermines all of us who support the European Union. One of the functions of the Commission is that of proposing legislation which benefits citizens of the Union as a whole. In that respect it is or ought to be part of the democratic fabric of our society. Commissioning work like that carried out by the Institute for Information Law allows the Commission to look beyond the interests of lobby groups and to take into account interests which do not have the time, expertise, organisation or immediate and direct financial interest to put counter views - including the interests of the public at large. What the Commission has done in this case is little less than a denial of its own responsibilities. Perhaps its motto should be "He who pays wins".

(emphasis added)

Speaking of Sir Hugh Laddie, who died of cancer on November 28, 2008, his absence from this conference was palpable and painful. His contribution was irreplaceable. He never hesitated to speak truth to power and did so often at the Fordham conference. When he spoke, he could not be dismissed, not only because of his position but because he had earned his position. When Hugh was only 29, he won the landmark ruling from Lord Denning that gave the world the “Anton Piller order.” This has proven to be one of the most positive and potent weapons that IP owners have ever possessed in their eternal war against infringement. When he later as a treatise writer and a High Court Judge, former High Court Judge and academic said that IP rights were becoming excessive and counterproductive, everyone had to pay attention. The IP world generally and the Fordham conference in particular has lost its leading advocate for balance and reason. He was only 62.

Anyway, back to Fordham @ Cambridge 2009. On the copyright and trade panels, after hearing repeatedly from several of the same USTR, USPTO, EC, IFPI and MPA people, it seems clear that:

• Enforcement is a major priority of the US government (“USG”) and EU. They will press forward on ACTA.
• Multilateralism, policy making and norm setting in long established institutional fora such as WTO and WIPO are currently obsolete. The USA, EU and Japan are engaged in situational diplomacy. Bilateralism and plurilateralism in ad hoc alliances such as ACTA are seen by the USA, the EU and Japan as currently best serving their immediate interests.
• The USA is doing its best to spin its mixed victory over China at the WTO. Meanwhile, it continues to flout a longstanding and unambiguous WTO finding of contravention of the Berne Convention and TRIPs in the “Section 110" matter. It will be recalled that the USA has exempted countless businesses from a requirement to pay many millions in royalties to composers and authors for public performance, as is the case in virtually all other WTO/Berne countries. But somehow still, the USA continues to preach to other countries about “respect” for intellectual property and international obligations.
• Canada was gratuitously mentioned many times as a problem and is clearly being targeted by these usual suspects - but with no apparent evidentiary basis.
• ACTA will cover parallel imports, if the content owners and the USG have their way. When an influential American lobbyist says the potential effect of ACTA on parallel imports would be a “marginal” problem, then you can assume that parallel imports could indeed be a focus of the ACTA efforts. Other comments suggested that the USA would favour the application of ACTA to parallel imports precisely because it would enable international price discrimination.
• If if ACTA is intended to exclude a "de minimis" number of unauthorized copies for personal use on iPods, laptops, cell phones, etc., border officials would presumably be authorized to make inspections to deterime whether that threshold has been crossed. And one can be quite sure that the RIAA's idea of "de minimis" will be quite different from that of millions of internet users. The RIAA is going after Joel Tenenbaum for just seven songs, and was awarded $222,000 for 24 songs in the Jammie Thomas case (under appeal). The RIAA has sued in is strenuously litigaitng against Joe Tenenbaum for just seven songs.
• Intense pressure will be brought on Canada to empower “ex officio” powers for border measures that have previously and properly been entrusted to the judiciary. This is probably one of the main goals of the USG, and could lead to intense anti-competitive abuse, the potential for which has been recently seen with respect to legit generic AIDS drugs being tied up in transit through the Netherlands.
• “Three Strikes” is a huge priority for the content owners and the USG and the content industries and will be a part of ACTA, if they have their way - notwithstanding the rejection of “three strikes” in every Western democratic country that has considered it to date.
• Despite the earlier promise (or at least the expectation) of a WIPO treaty for the rights of the blind, WIPO Deputy Director Michael Keplinger (whose appointment will shortly expire) indicated that no such thing was in the works. At best, we could expect “soft law.” Whether such an explicit statement reflects the wishes of the new WIPO DG, Francis Gurry, is not known because Mr. Gurry was not present. Of course, the WIPO Secretariat cannot unilaterally decide to launch a treaty process - such a mandate must come from the WIPO General Assembly. But the Secretariat can be very influential in such matters. One would think that a copyright treaty for the rights of the blind is about as close as one could get to a useful, necessary and relatively non-controversial multilateral issue. If WIPO is really unable or unwilling to press forward on this issue, there are bound to be more questions about WIPO’s future role in international norm setting and treaty making. Certain countries may think that they don’t need WIPO in such a role today or even in future. However, things could change very quickly in international politics and economics - especially when - not if - the “BRIC” (Brazil, Russia, India and China) countries (which were not represented on the faculty of this year’s Fordham conference and have not been invited to the ACTA table) assert the power that is rapidly shifting in their direction. Hopefully, the forthcoming SCCR meeting in May will shed some light and accomplish something more than calling simply for another semi-annual SCCR meeting at some presumably pleasant time in Geneva.
• Canada will likely make it to the top level (or bottom, depending on one’s point of view and sense of humour) of this years’ “Special 301" report - expected momentarily.

On the domestic Canadian front, there was an interesting reference in a presentation by an Australian grad student that confirmed that the Canadian library community is still apparently largely oblivious to the potential implications of the CCH v. LSUC decision, and has given it a “markedly muted reception.” This is hardly news - but interesting to hear from down under. The really interesting question is why there is still so little awareness five years after the fact of the potentially liberating results of that the decision. It’s becoming more and more clear that many Canadian librarians and educational administrators are not being fully and/or independently advised of the real significance of this decision.

BTW, if anyone wishes to pay $1,595 for a one day program (which does include lunch) to attend what promises to be an enthusiastic presentation of American government and American content owners’ points of view voiced directly and through Canadian lobbyists on some of the above topics, the Conference Board of Canada is hosting just such an event on May 29, 2009 in Toronto. Here’s the program.

HK

Bordering on Fiction

It’s interesting that the new U.S. Homeland Security Secretary, Janet Napolitano, believes that terrorists have routinely entered the United Sates through Canada — including the perpetrators of the 9/11 attacks. If such ill-informed, clearly harmful and inaccurate myths are really believed by high American officials, the resulting US Government demands could seriously impair ease of travel and increase shipping costs and inconvenience for Canadian businesses. Such measures could render cross border trade uncompetitive in some cases. So much for free trade. Could this all possibly be a disingenuous excuse for more protectionism? Trade lawyers would be shocked, shocked if such were the case.

Speaking of never letting a crisis (whether real or concocted) go to waste, it was apparent at last week's Fordham conference held at Cambridge, England that American USTR and Department of Commerce (USPTO) officials are similarly ill informed about piracy, counterfeiting and Canadian border and IP issues in general. This has clearly driven the USA ACTA and “Special 301" agendas.

The American officials actually do seem to believe that Canada is a major gateway for transhipping fake goods to the USA and that fake goods are actually made here in Canada in quantity. But where is the evidence for this? It seems that a key source of these allegations about Canada is that of Canadian based lobbyists for American content owner interests.

Don't be surprised if, based upon such “evidence”, Canada is promoted to the worst of the worst list on this year's “Special 301" report, expected any day now. Clearly, the Canadian lobbyists who act for their American bosses and profess to be interested in the cause of Canadian artists are getting a lot of traction. Even US Vice President Joe Biden now has Canada in his sights, along with China:

Biden blasted China, saying its intellectual property laws remain "largely ineffective" and will end up "strangling their own creative juices," and compared it to what he described as India's more effective anti-piracy regime. He singled out Canada, a close U.S. ally, as needing stronger laws; it never signed the treaty that led to the Digital Millennium Copyright Act, and a proposal to adopt anti-circumvention restrictions was never adopted.

I'd like to think that our Canadian government is doing its best to inform the US Government of facts, rather than passively letting special interest lobbyists feed unfettered fiction into the American policy making machine.

The fact is that Canada has long had in place very effective border enforcement mechanisms that operate under the jurisdiction of the courts, as they should. “Ex officio” measures that would empower Canadian border officials to decide matters on their own that should be left to the judicial process are not needed or even desirable in Canada. As I've pointed out before, Justice Roger Hughes, who has extraordinary experience as both a Canadian IP litigator and now as a Federal Court Judge, provided an important comment last year at Fordham that takes the wind out of the sails of those who advocate "ex officio" actions at Canadian borders:

Justice Roger Hughes of the Canadian Federal Court commented from the audience in response to Steve Metalitz’s suggestion that Canada lacks adequate and effective border measures and should provide “ex officio” seizures (i.e. seizures that bypass the Courts and let customs officials seize allegedly pirated or counterfeit goods). According to Mr. Metalitz, the current system doesn’t work. Justice Hughes pointed out that this was simply wrong and that judicial orders for seizures were readily available when appropriate – and that those seeking such a change should “stop whining” and just “roll up their sleeves” in order to use the current system. He indicated that he had signed three such orders at the request of Microsoft just in the last week.

The fact is that counterfeit and pirated products are not freely and openly available on the main streets of major Canadian cities, as they are in New York City, for example. Why blame Canada for a problem that the USA cannot or will not address even in mid-town Manhattan?

As to piracy and counterfeiting in general, the late Sir Hugh Laddie told The Times in a story on June 3, 2008 a few months before his death last year:

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

It’s time for facts about piracy, counterfeiting and what happens at borders. We need to move beyond lobbyists’ fabrications bordering on fiction.

HK

PS:

BTW, if anyone wishes to pay $1,595 for a one day program (which includes lunch) to attend what promises to be an enthusiastic presentation of American government and American content owners’ points of view voiced directly and through Canadian lobbyists on some of the above topics, the Conference Board of Canada is hosting just such an event on May 29, 2009 in Toronto. Here’s the program.

Notice of Vacancies at the Copyright Board

As expected, vacancies have been announced at the Copyright Board, and were posted in the Canada Gazette on April 18, 2009. Under the statute, terms are for a maximum of five years and can be renewed only once. Not all members have had their appointments renewed in the past. There can be up to five members, who can be full or part-time. The notice refers to a full-time position for the Vice-Chairman and Chief Executive Officer and part-time member positions, of which there could be up to two appointments.

This year, there could be up to four vacancies, including the position of Chairman. Interestingly, for the first time since the beginning of the “new” Copyright Board era in 1989, the Government is looking for “part-time” appointments for positions other than the Chairman and Vice Chairman. This may reflect the fact that live hearings are infrequent and have rarely involved more than three members.

The Chairman must be a sitting or retired judge of a superior, county or district court. The current Chairman is Justice William Vancise, a supernumerary judge of the Saskatchewan Court of Appeal, who was appointed five years ago. He could be reappointed for a second term.

It will, of course, be a challenge to the Government to fill the potential vacancies referred to in the Canada Gazette with available persons who are sufficiently expert on the one hand and who would be perceived as sufficiently impartial on the other.

The deadline for application for the vacancies referred to in the Canada Gazette is May 4, 2009.

HK

Notice of Vacancy for Commission of Competition

The Government has recently posted a notice of vacancy for the position of Commissioner of Competition. Here's an article about the departure of the previous Commissioner, Sheridan Scott. Since her exit, the Bureau has had an acting Commissioner.

This is an extremely critical position for the future of Canada's international competitiveness and for the operation of Canada's economy on an efficient and productive basis.

In recent years, the "Chicago School" seems to have been very influential at the Bureau, with the result that there has been little apparent interest in taking on major cases involving classic and basic antitrust issues, and virtually no interest in challenging excesses related to IP rights. Instead, the Bureau seems to have focused mainly on deceptive (tele)marketing practices, and false and misleading advertising cases. For example, the Bureau has apparently had little difficulty rationalizing the increasingly pronounced duopoly nature of the Canadian ISP industry, and the increasingly deep and complex vertical integration in broadcasting and telecom generally, much of which involves IP related issues. The last time I checked, which was a month or two ago, the Bureau has never once exercised its mandate under s. 70.5 of the Copyright Act to examine the hundreds (or more) of agreements involving collectives filed at with the Copyright Board in order to invoke immunity from the conspiracy provisions of the Competition Act.

This is an extremely difficult job to do well, because it requires not only a lot of experience and knowledge, but outstanding management and political skills and a high degree of independence. One would hope that in the current climate, where the dangers of excessive deregulation and forbearance have been so painfully exposed, that the Government will appoint someone with a sufficient skill set and sufficient independence to deal with some very imposing challenges.

HK

Barbara Ringer 1925-2008

Barbara Ringer, a legend in US and world copyright law has passed away. I didn't know her but people I do know did and had the highest regard for her.

Her death has brought Bill Patry out of his blogging retirement for only the second time, the first being the passing of Sir Hugh Laddie. Here's Bill's remembrance.

Bill, if you see this, hopefully your touching and learned eulogies to great copyright people will be few and far between. We do need your trenchant and important comments on a regular and frequent basis, now more than ever. As Sir Hugh himself said:

How terribly sad. In a world of ever more strident and uncompromising views, your blog was a beacon of erudition and common sense. It is a disaster that you have chosen silence even if the reasons for doing so are understandable.

As you will have seen from all the comments posted on your blog, there are many who will miss your insight and willingness to tackle the big issues without partisan bias.

The world of copyright will be the poorer for your decision.

However, I believe that I am like you in one respect. We are both optimists. For that reason I refuse to accept that this is the end of Patry Blog. This is just its suspension. I live in hope, and expectation, that the intellectual honesty which has driven you to make this wonderful contribution to copyright learning will force you back in the not too distant future.

Your brother - Hugh Laddie

HK

New Working Paper on US Statutory Damages

Pamela Samuelson and Tara Wheatland have just posted a "working paper" on statutory damages under American copyright law, available here. This is particularly timely, given the RIAA v. Tenenbaum case and the constitutional challenge being mounted by Prof. Charlie Nesson of Harvard.

Here's the abstract of the paper:

Abstract:
U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.

This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.

HK

UK Copyright Tribunal Consultation

The UK government has announced a consultation on how to improve its Copyright Tribunal, which has recently moved to London and put in place its first full-time Head of Registry.

Last year, I published a paper on certain aspects of Canada's Copyright Board and collective system, available here.

Justice Vancise, the current Chairman of Canada's Copyright Board has published several speeches concerning Canada's Copyright Board here.

HK

Vive la France

(BBC)

Vive la France!

"Three strikes" may have hit a home run in France. However, an EU level confrontation appears imminent, since the French law is apparently in stark contravention of EU policy.

So, French downloaders and file sharers beware. The French authorities are on the case.

As the late, great hero of the French resistance might have said:

Vive la résistance!
Vive l'internet libre!

HK

Satellite Radio Tariffs in Canada

The Copyright Board has today released its reasons for decision for its Canadian satellite radio services tariff. It also published a news release, which provides an interesting comparison to rates in the USA.

The Board consolidated the applications by three collectives into one hearing. The hearing took place in late November and early December of 2007.

We also eagerly await the decision in the K-12 reprography hearing that took place around the same time.

HK

PS - more on the US situation here and here and here.

Kindle Issue Flares Up Again

As reported in Publishers Weekly:

Some 200 people with print disabilities--physical impairments that restrict their ability to read print--protested in front of the Authors Guild headquarters in New York today, rallying against the Guild's attempt to get Amazon to disable the Kindle 2's text-to-speech function. The protestors, led by the National Federation of the Blind, chanted “We want e-books!” “Literacy for all of us!” and “Two, four, six, eight, the Authors Guild discriminates!”

See the rest of this story. It isn't going away soon.

See also Abraham Lloyd's Tweets reported here by Jamie Love and the use of the rather catcy expression:

“Stop the Greed! We want to Read!”

UNCITRAL and IP Security Interests

UNCITRAL is having another meeting about this on April 27, 2009, so it seems. I know about this only because a UK based blog specializing in this topic is upset that the UK government has given only two weeks notice for consultation. HT - as is frequently the case - to the IPKAT.

As far as I know, the Canadian government - which is very influential behind the scenes in this UNCITRAL process - has given no notice to Canadian stakeholders. In fact, a Canadian official from the Department of Justice has served as the Chairperson of the responsible UNCITRAL working group. As far as I know, I am still on the Canadian Department of Justice's email list for this - so I assume that I would have received anything sent out.

This UNCITRAL effort may or may not be useful and productive. But it seems that Canadian stakeholders will be among the last to know.

Even if the the problem with late distribution of documents lies with UNCITRAL, this is not the way to inform stakeholders and to get their ultimate acceptance of whatever may be the result of UNCITRAL's work.

I have noted the inadequate consultation by the Canadian government with Canadian stakeholders previously here.

PS - I have confirmed that IPIC , which is Canada's leading dedicated IP organization, has also not received anything or been consulted about the April 27, 2009 meeting.

PS #2 - The comment below appears to be from a senior person at UNCITRAL. The documents he refers to (without a link) are indeed available here. Although dated in January and February of this year, the PDF properties date for the substantive documents is March 17, 2009 - which suggests that they may have been posted as early as that date. The agenda for the April 27 meeting goes back to November and bears a PDF properties date of January 13, 2009. I don't know when these documents were actually posted.

While I'm pleased to pass along information such as this, Canadian stakeholders should not have to depend on my blog, much less foreign based blogs, to learn about these types of developments, esepcially when our Government is directly involved. Moreover, Canadian stakeholders would normally have input to this process only through the Canadian government. IPIC is not an NGO in this case, because it is not an international organization. This is consistent with traditional UN practice.

The issues inovlved in this UNCITRAL project are extremely complex and the docuemnts require a lot of time to digest, even for experts.

To its credit, WIPO recently held a day long program on March 10, 2009. However, as far as I know, Canada had no involvement and past Canadian work played no part in the program. Moreover, the private sector cannot simply jump on a plane and go to Geneva for a day to keep up to speed on issues such as this. That is why we depend on our government to represent our interests and and to inform us of current developments.

PS #3

"Spiros" below is presumably Mr. Spiros Bazinas spiros.bazinas@uncitral.org at UNCITRAL who posted this on the IP Finance blog:

Jeremy,

The April 2009 meeting of the Working Group is not the last meeting. The draft IP Annex should be completed by the Working Group early in 2010 and by the Commission in the spring of 21010. [sic] So, there is ample time for comment either to the UK or other Government, other IGO, NGO or directly to UNCITRAL.

This is useful, although it is questionable as to how effective any private sector submissions can be at this late stage. However, Mr. Bazinas, at least, to his credit seems amenable to communication and he kindly provided his email address, as noted above.

HK

Google Book Settlement - maybe not so fast?

It looks as if the venerable New York Law School is weighing in and asking Judge Chin of the SDNY to delay approval of the settlement until antitrust concerns are adequately considered. The first story on this is here.

Interestingly, the story also reports that:

Google foe Microsoft has agreed to contribute $50,000 to New York Law School to help fund a host of projects related to the book search settlement, including the friend-of-the-court brief, a symposium, and three white papers.

Grimmelmann said Microsoft will have no influence over the project, and his written proposal seeking funding from the software giant also spelled out that the work will be independent. "If Microsoft was to come back to us and try to put any pressure on how this comes out, we'd say, 'That's not how this works,'" he said.

More on Microsoft's involvement can be found here.

And now more in general about growing opposition as reported in the NY Times here.

Objections can be filed with the Court until May 5, 2009.

HK

Obama, the Queen and her new iPod

(The Guardian)

Not long after giving UK Prime Minister Gordon Brown a gift of DVDs that doesn't work due to region coding, President Obama has given Queen Elizabeth an iPod with 40 Broadway tunes that raises some complex questions according to Fred von Lohmann of the EFF. He raises issues concerning first sale, breach of contract and fair use for starters - and that's only under American law.

As Fred says:

Of course, no one thinks that copyright owners are going to send lawyers after either President Obama or the Queen over this. But none of us should want a world where even our leaders--much less the rest of us--can't figure out how copyright law operates in their daily lives.

Bill C-61 would have raised these types of questions - and then some. And ordinary Canadian citizens don't have crown immunity.

BTW, the President received a portrait of the Queen and Prince Philip. No batteries to wear out and no legal clouds involved. And likely to last a great deal longer.

The British have much more class than the MPAA and RIAA, both of which must be patting themselves on the back for the recent rather odd gifts from Obama to the UK.

HK

Movie Studios Fail To Report Record Revenues

The US movie industry is being unduly modest in its annual report. According the NY Times, it is not reporting its historically high revenues from last year:

“It’s nothing to apologize for,” Mr. Glickman told ShoWest attendees Tuesday morning, a comment that appeared calculated to debunk recent articles in the trade press that said he was reluctant to trumpet a strong box office for fear of further hurting the industry’s lobbying efforts in Washington.

Lawmakers stripped millions of dollars in tax breaks for Hollywood from the recent stimulus package, prompting some studio chiefs to blame Mr. Glickman, whose job makes him the industry’s top lobbyist.

Most of the data that this year’s report did contain are widely available from other sources. The global box office reached an all-time high in 2008 of $28.1 billion, a 5 percent increase from the previous year, the association said. The North American box office reached $9.8 billion, 35 percent of the worldwide total, a 1.7 percent increase.

(emphasis added)

Recall how Hollywood came into its glory and profited very well during the First Depression. After all, one wouldn't want the facts to get in the way of a good story for Congress.

HK