Balanced Copyright Teaching Resource - for the USA

v.v.

The amazing EFF has come out with a balanced and informative teaching resource about copyright, with materials for teachers and students.

Unfortunately, we don't have such a thing in Canada. We did have Captain Copyright, who was fortunately euthanized by his creator, Access Copyright, before he could do any damage. He is gone but not forgotten.

We still have Copyright Matters! in Canada by Wanda Noel and Gerald Breau, published by CMEC, which is aimed at teachers and which, as I have noted before, is overly cautious and was obsolete at the time of publication of the second edition in 2005 - because it does not mention or appear to even take into account the landmark 2004 decision of the Supreme Court of Canada in CCH v. LSUC that opens the door to fair dealing for purposes of research or private study. It will be recalled that CMEC attempted to tout Noel and Breau's work as as being an "accurate and reliable" resource for use by teachers and students:

We disagree as well with Access Copyright’s assertion, also in the said August 9, 2006 letter, that there are no tools available to educators to help them teach their students about copyright. There are a number of accurate and reliable resources on copyright for use by teachers and students, such as the publication Copyright Matters!, which is now in its second edition.

We could use a balanced teaching program, not only for Canadian students but for the educational and library community, which largely continues to be afraid of its own shadow in this country - though there is some hope of potential empowerment and better leadership. In the meantime, the best source of information for teachers and librarians that I know of is book by Laura Murray and Sam Trosow, which I've reviewed here.

However, "balance" in the copyright context is becoming increasingly difficult if not impossible to achieve, as we witness certain content owner lobbyists going to more and more extraordinary lengths (for example, as just reported by Michael Geist) to control and manipulate public discussion and the public interest itself.

HK

Charlie Angus' New Net Neutrality Bill

Charlie Angus has a new net neutrality bill, private members Bill C-398.

The main differences from his previous bill on the same subject are the addition of the word "extraordinary" and the change of terminology from "network operator" (which is defined) to "telecommunications service providers", which isn't defined.

Frankly, it suffers from the same problem as before - which is that it puts the fox in charge of the chicken coop - allowing Bell, Rogers and/or whichever other likely duopolistic ISP ultimately controls your bandwidth to"manage", i.e. "throttle", in order, inter alia to:

• "relieve extraordinary congestion"
• "handle breaches of the terms of service"

Do we really want the likes of Bell and Rogers to determine what is "extraordinary congestion" - or to unilaterally impose, change and adjudicate breaches of self serving terms of service? Should the fox in the chicken coop be allowed to decide when he is suffering from "extraordinary" hunger?

As well, there is no explicit consumer remedy provided - which may be something of a Freudian slip, since it's unlikely that there would ever be a violation found according to the terms of the bill.

Charlie Angus has done great work on the copyright file and other issues, but I'm afraid that this bill won't help and would probably do far more harm than good to consumers if it somehow gets enacted.

HK

Good News From Geneva

As I said, things may have been more nuanced than appeared.

No details yet but a little tweet from Jamie says that:

WIPO sccr18. Text is now out. The proposal for a treaty "will be discussed at the nineteenth session of the SCCR."

So - the proposal will move forward and isn't dead.

Sounds like progress to me.

HK

PS - William New of IP Watch reports today - May 30, 2009 that:

The committee negotiated intensively on the chair’s text of the meeting conclusions, going through three drafts (IPW, WIPO, 29 May 2009) before reaching final agreement.

The committee’s late night outcome put the visually impaired treaty proposal – along with any other proposals or contributions on limitations and exceptions - on the agenda for discussion at the next SCCR, the date for which is not set. It also keeps on track a secretariat-led initiative to bring stakeholders on the visually impaired question together through a “platform”.

The final SCCR meeting conclusions text is available here [pdf].

BoingBoing Call to Action re WIPO Treaty for the Blind

Cory Doctorow - Canadian expat author and BoingBoing founder extraordinaire says:

I don't often ask readers to do things like this, but please, forward this post to people you know in the US, Canada and the EU, and ask them to reblog, tweet, and spread the word, especially to government officials and activists who work on disabled rights. We know that WIPO negotiations can be overwhelmed by citizen activists -- that's how we killed the Broadcast Treaty negotiation a few years back -- and with your help, we can make history, and create a world where copyright law protects the public interest.

Here's his posting, provocatively entitlted "USA, Canada and the EU attempt to kill treaty to protect blind people's access to written material".

I don't know yet what Canada has actually said - it may be more nuanced than what is being reported. The issue appears to be whether there will be movement directly towards negotiations for a treaty or will there be endless discussions with no treaty in direct contemplation. Nothing focuses the mind like the prospect of a diplomatic conference - even if a long way off. That, of course, is something that only the General Assembly can decide. Neither the SCCR nor the Secretariat can make that call - but they can be very influential if they so wish. Admittedly, the tabling by Brazil et al of a draft treaty proposal from the World Blind Union at the last moment this week was unlikely to create an immediate consensus.

The WIPO Secretariat's work with "Stakeholders" on rights for the visually impaired can be reviewed in this detailed document.

HK

Obama Admin Seeks Blocking WIPO Treaty for Blind

Jamie Love is reporting from WIPO that:

This evening the United States government, in combination with other high income countries in "Group B" is seeking to block an agreement to discuss a treaty for persons who are blind or have other reading disabilities.

Disappointing but not surprising. Not exactly "change."

We'll have to wait to see where Canada stands on this.

PS:

I've just discovered a tweet from Manon Ress from a few hours ago that says:

Canada is opposing the treaty for the reading disabled.

I hope she's wrong, but I can't recall that she has ever been wrong before on these kind of things. Maybe there's more to this than meets the eye. Let's hope.

HK

PS - May 29, 2009 7:45 AM - Jamie Love tweets that "WIPO #sccr18: Group B acting badly on treaty: EU plus Australia,Canada,Japan,New Zealand,Norway,Switzerland,the Holly See,United States"

PS: Cory Doctorow @ BoingBoing says "Update 3: Canada is upset with me. That's fine, I'm upset with Canada."

PS: This is going to be the first seriously Twittered SCCR. For those with accounts, check out "#sccr18"

Conference Board Volte Face

In a stunning and positive development, the Conference Board of Canada has “recalled” three reports: Intellectual Property Rights in the Digital Economy; National Innovation Performance and Intellectual Property Rights: A Comparative Analysis; and Intellectual Property Rights—Creating Value and Stimulating Investment.

It says today on the front page of its website:

An internal review has determined that these reports did not follow the high quality research standards of The Conference Board of Canada.

This is in stark contrast to the reported statements only yesterday of the Conference Board's Vice President Gilles Rheaume, who recites the now recalled report's main conclusion:

"Basically what is happening is that we are a major laggard when it comes to protecting intellectual property rights on the Internet. That is a big issue for us," said Gilles Rheaume, vice-president, public policy at the Conference Board. "We are the illegal file swapping country of the world - the leading country, when you look at Canada compared to other OECD countries.

"It is certainly an issue when we deal with Americans; it is something that is a sore point for them."

One particular point should be made right away. While I am sure that there will be a lot of fall out and follow up from this unfortunate episode, I do hope that the there are no unfair repercussions for whoever at the Conference Board had the good professional sense to retain Professor Jeremy de Beer in the first place. That was a good call. That his good work was subsequently reportedly ignored was not a good call.

Both Professors Geist and de Beer should be commended not only for their substantive work on these issues but for bravely speaking truth to power. We need more of this from other Canadian academics, who should also learn from Michael and Jeremy's outstanding contributions here.

HK

Broadcasters' Rights Redux - Decade Long Discussion Continues

Gurry/Liedes/Musungu/von Finckenstein

The indispensable IP-Watch reports (subscription required) in on the first day of the current SCCR meeting in Geneva that:

WIPO Director General Francis Gurry stressed at the outset of the 25 May information session that it was intended to be informational only and not a negotiation on a former proposed treaty strengthening IP rights for broadcasters that collapsed in the negotiation process in 2007 (IPW, WIPO, 22 June 2007)

Mr. Gurry is apparently seeking to lower expectations that there will be a WIPO Broadcasters' Rights Treaty. The current and long standing Chair of the SCCR, Jukka Liedes, has made is clear for a decade that he is personally committed to such an outcome and has gone to great lengths to make it happen. Despite his failure to deliver a treaty, and his clear preference on the issue, he is still the chair, perhaps because nobody else has seriously stepped forward to change the guard.

It may be noted in Canada that broadcasters are now currently trying to make a case to the CRTC that they should be paid a "fee for carriage" for "free" over the air basic channels. This has interesting copyright analogies and implications. This is clearly causing much consternation at the CRTC, resulting in its normally unflappable Chairman, Konrad von Finckenstein, now doing back flips. These issues get very touchy when so much money is involved. I wrote about this two years ago here.

At any rate, the initial day of expert presentations apparently included a lot of push for such a treaty and a presentation on the public interest perspective and a call for balance from Sisule Musungu, who is someone to watch. Presentations from the event are available here: Alberto, McFall, Mohan, Mohotty, Musungu, and Vermaele [ppt].

HK

Rupert's Revenge?

World Economic Forum Davos 2007

Google News has been down this afternoon for a while - can't ever remember that before.

As I have pointed out on May 17, 2009, one of Rupert Murdoch's honcho's and others have been going on lately about Google News and other news aggregators as “parasites or tech tapeworms in the intestines of the Internet”.

Could this be Rupert's Revenge ;-)
???

HK

PS - back in business when I just checked at 5:15 PM - thanks Rupert, or whoever...

Conference Board of Canada Controversy & American Based Copyright Lobbying - the Substantive Issues

Those who wish to pay $1,595 to attend a Conference Board of Canada conference this Friday May 29, 2009 that is reportedly being funded in the amount of $15,000 by Ontario taxpayers, according to ITBusiness, at which a controversial Conference Board of Canada report will be presented can find out more information about the Conference here. Prof. Geist has described this as a "deceptive, plagiarized rerport" and there's a front page article about all this in today's Ottawa Citizen.

While there are some good speakers on the list of this Conference Board Conference, the program and speaker list are seriously imbalanced in my view. It is regrettable that prestigious institutions such as the Public Policy Forum last year and the Conference Board of Canada this year allow themselves to be used in this way by lobbyists.

Those wishing to read the 2008 American IIPA lobbyist's report from which the Conference Board report has allegedly taken portions of its content can read it for free here.

These reports on Canada are prepared with the considerable input of a well known Washington lawyer named Steve Metalitz.

As it happens, I debated this very report with Mr. Metalitz at the 2008 Fordham conference, where I presented a paper entitled WHY CANADIAN COPYRIGHT LAW IS ALREADY STRONGER AND BETTER THAN THAT OF THE USA - AND WHY THE USA SHOULD LOOK IN THE MIRROR RATHER THAN AT ITS “SPECIAL 301" WATCH LIST.

This paper shows 15 ways in which Canadian copyright law is already stronger and better than American copyright law. None of those points have been refuted. These include a number of provisions that generate substantial amounts of money that benefit - in some cases mostly and significantly benefit - American interests, and for which the USA has no equivalent counterpart provisions. Here's a simplified "baker's dozen" list of examples from my paper:

1. Payment by broadcasters for "ephemeral rights"
2. Payment for public performance by small business establishments
   
3. Neigbouring rights for sound recording producers and performers
4. Theatrical exhibition rights for composers and authors
   
5. Blank media levies
6. Far higher reprography payments per capita - particularly in educational sector
   
7. Moral rights
8. No compulsory mechanical license
9. About 36 copyright collectives (about six or seven times more than USA)
   
10. Largest copyright tribunal infrastructure of any country that I know of
    
11. No parody right
12. No time shifting exemption
13. Crown copyright, which results in private sector monetization.
    

So - in the current debate, which ironically involves allegations of plagiarism in the context of copyright lobbying - let us not lose sight of the basic underlying issues:

1. In many ways which involve a lot of money flowing out of Canada to US interests, our Canadian copyright laws are already stronger and better than American laws.
2. The USA remains the world's longest and most flagrant outstanding adjudicated international copyright scofflaw, as determined by the WTO now 9 years ago.

HK

Conference Board of Canada Copyright Material Controversy

Prof. Michael Geist has raised in a posting this morning some allegations concerning, inter alia, plagiarism with respect to a report concerning Canadian IP law entitled “Intellectual Property Rights in the Digital Economy” published by the prestigious Conference Board of Canada. I take no position on the substance of these allegations, other than to note the obvious fact that they will be of interest to those concerned with IP and trade policy in Canada and elsewhere. This has been picked up by others, including the very widely read BoingBoing. This issue may well find its way into the main stream media.

The Conference Board, for its part, has published a lengthy defence of its report in a reply to Prof. Geist here entitled "Conference Board defends IPR report". The opening words of the Conference Board response are "In a blog posting today, Michael Geist charged the Conference Board with publishing a deceptive, plagiarized report."

Michael has followed up with a reply to the Conference Board's reponse.

Those who wish to pay $1,595 to attend a Conference Board of Canada conference this Friday, May 29, 2009 at which the report in question will be presented can find out more information about the Conference here.

HK

PS - This has hit the main stream media. See Sarah Schmidt's Canwest story here, which leads off as follows:

OTTAWA — The fight between consumers and the entertainment industry over reforms to Canada's copyright law escalated Monday when one of the country's leading experts on the issue accused the Conference Board of Canada of plagiarizing from a U.S. lobby group's documents to wrongly paint Canadians as the file-swapping capital of the world.

L’Oréal and parallel imports

Anyone who seriously does not think that attempts will not be made to use ACTA to get at parallel imports should look at the recent UK decision involving L'Oreal and eBay, which is almost 500 paragraphs in length and in the end refers several questions to the ECJ. The case concerns both counterfeits and parallel imports. While the judgment confirms that "a trade mark owner cannot request border control measures in respect of parallel imports" in the EU, it does show that major trade-mark owners regard both parallel imports and counterfeits as illegal and will what they can to stop both. It would be natural for the EU to "policy launder" though ACTA a change in its own law. Policy laundering is arranging for policy that is too controversial to legislate domestically being adopted in a treaty or agreement that "must" be implemented domestically.

Here's the decision from Justice Arnold of the UK High Court and some preliminary commentary from my friends at the IP Kat and IPWars.

HK

WIPO Copyright Meeting - May 2009

Following the recent Fordham Conference, I posted this comment on April 25, 2008 on the question of whether there could be a WIPO treaty for rights of the blind in the works:

• 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.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting in Geneva next week. Here are the documents. Hopefully, we will see if WIPO can make any progress on this issue and whether Mr. Keplinger's comment was indeed reflective of the Secretariat's views.

For many reasons, WIPO has been unable to achieve any notable successes in international substantive law norm setting since the 1996 Internet treaties. Even these treaties, which are now almost thirteen years old, have yet to be ratified by major developed countries apart from the USA, Japan, Switzerland and Australia - the latter under intense American pressure and the profoundly American-deferential leadership of former Prime Minister John Howard. (The ratification by Belgium is regarded as something of an anomalous accident, since Belgium is part of the EU and the EU has not yet ratified).

The troubles of WIPO under its former DG, Kamil Idris, certainly didn't help. The result has been a wave of bilateral and plurilateral initiatives that have ignored WIPO and even the WTO. It will be recalled that the TRIPs agreement in the 1994 WTO Uruguay Round treaty was arguably a rebuke to WIPO, which under the late Arpad Bogsch had taken a rather purist approach to IP that was largely insulated from such worldly concerns as economics, trade policy and the needs of developing countries.

The potential apotheosis of plurilateralism may be the current ACTA initiative, which is a significant threat to a sustainable system of international norm setting in IP law.

WIPO needs a new and positive milestone and the world needs a newly renewed WIPO. The pieces and the players are in place, particularly Francis Gurry, the new DG at WIPO who has fully earned the significant respect and confidence he enjoys. If ever there was an issue around which well-intentioned countries could rally, a treaty for the rights of the blind could be that issue.

Next week, we may see a draft treaty or a proposal tabled by Brazil, as the Irish Times reports. Also, look to leadership from Jamie Love and his very worthy KEI NGO. Here's one of his blogs.

Finally, we await with interest where Canada will stand on all of this.

HK

PS: William New of IP Watch reports that:

A group of Latin American and Caribbean countries have declared their intention to support discussion of a proposal to negotiate a World Intellectual Property Organization treaty ensuring an exception to copyright for visually impaired readers who lack access to protected reading materials. The proposal is expected to be brought to the floor of a key copyright committee meeting this week.

Mr. New also reports on other aspects of the forthcoming meeting, including this:

The committee will elect a chair for the meeting. In the case of the SCCR, unlike any other WIPO committee, the same person has been chair for as long as a decade: Jukka Liedes of Finland. He has generally shown sympathy for developed country – especially European – perspectives. It is unclear why developing countries do not push an alternative candidate for the chairmanship.

Right to Repair

Cars are increasingly computerized. Consumers are increasingly dependent upon even captive to their "authrorized"new car dealers for repair of these cars when the warranty expires because independent repair facilities do not have access to the information, tools, diagnostic codes, computer programs and other products and services necessary to service today's complex vehicles. IP and competition law are major issues here.

In Canada, there is a private member's bill intoduced by Mr. Masse as Bill C- 273, which is receiving much attention.

In the USA, there is a similar but more detailed bill, H.R. 2057 that is also getting some attention.

One of the notable differences between the two bills is that the American bill provides explicit remedies.

The EFF is suggesting that the concept apply accross the board to all consumer products and points out how the DMCA gets in the way of a the consumers' "right to repair".

All of this comes in interesting times for the major automobile companies.

HK

Levies Then and Now

$3.00 Each???

$2,800 each???

There's a story out that the capacity of a blank DVD could be boosted to 1.6 terabytes, which would make the "levy" sought by the CCPC back in 2002 of $2.27 seem fairly small on a capacity basis. However, that proposed levy on blank DVDs was shot down (yes - I was involved) and has not been resuscitated because the CPCC apparently (though I'm sure reluctantly) recognized that these products are not "ordinarily used" to copy music. That said, the $2.27 proposed levy then sought on blank DVDs is now about 10 times the retail price, if you buy them in any quantity and get a good deal. They are now cheaper by far in many cases than blank CDs (which have only about 15% of their capacity at best), because the latter have a $0.29 "levy" (commonly referred to as a "tax"), which is what is keeping the CPCC in business and supporting its overall more than 10% expense/revenue structure. The CPCC has still not published its 2008 financial figures, though we are well into 2009.

Speaking of 2002 proposals, the CPCC then proposed a levy "of $21 per gigabyte of of memory in each non-removable hard drive incorporated into each MP3 player or into each similar device with an internal hard drive that is intended for use primarily to record and play music." In other words, the current 120 gig iPod "Classic" that sells for under $300 would have had a levy of $2,520 if the CPCC had succeeded. Yes - we stopped that too, though the CPCC and Copyright Board had to be told twice by the Federal Court of Appeal that it wasn't on.

All of this shows that today's quickie proposed legislative solutions and oft inflated tariff proposals to deal with supposedly serious crises arising from copyright and new technology are potentially tomorrows' absurdities or even nightmares.

HK

More on Maple Leaf

Even if the Toronto Maple Leafs are out the picture, the official Maple Leaf is not. There's an update of the story of the battle imbroglio about Canada's Maple Leaf in the EU, which I commented on the other day.

Here's Peter O'Neil's Canewst story of May 20, 2009.

Kahle on Google Book Settleemnt

(Internet Archive)

Brewster Kahle, who is the founder and director of the quite amazing Internet Archive, and has somehow managed not to be sued himself as far as I know, has come out explicitly opposing the Google Book Settlement, especially because he believes that it will give Google a monopoly on the exploitation of orphan works. He believes that courts should prevent and not confer monopolies and wants to see legislation instead.

Read this for sure in today's Washington Post.

HK

Intimates™ at INTA

Elle Macpherson Intimates™ @ Liverpool Daily Post

Trade-mark (CDN spelling) colleagues from around the globe, including my firm, are gathered in Seattle, inter alia, to hear Elle Macpherson deliver an undoubtedly interesting keynote address at this years' INTA (International Trademark Association) conference.

The ever vigilant, diligent and long suffering scholars at IPKat report on her disquisition. She is said to have spoken "eloquently and fluently of her brand -- Elle Macpherson Intimates™." Despite Ms. Macpherson's appearance, IPKat advises that it was "the lovely Richard Heath [picture omitted, speaking about domain names] who melted all our hearts with talk of expanding private/public partnerships, putting the can on ICANN so far as introducing more general top-level domains is concerned, establishing regional councils and coordinating their assault on counterfeiting, and so on." Trade-marks lawyers and agents are indeed true professionals and always focus first on policy priorities.

In the interest of research on brand exposure, innovation and protection, you may wish to pursue further study of Ms. Macpherson's website here. which uses "Flash" techniques in more than one sense. I must say that the Fordham Conference was never quite like this.

I, however, missed out on all of this stimulating intellectual excitement. Patriot that I am, I remained here in Ottawa to celebrate Victoria Day.

HK

Woody Allen Scores Successful Settlement (+ Canadians in the news)

Woody Allen has scored a 5 million settlement - half of the $10 million he had demanded from American Apparel for the unauthorized use of his image as seen above, apparently taken from that lovely old film Annie Hall. No bad indeed from his viewpoint, taking everything into account.

Here's the BBC take on it.

The unhappy founder and CEO of American Apparel is Dov Charney, a Canadian. Charney claims his insurance company made him settle. It would have made an interesting trial, to be sure.Here's Charney's interesting press release

Charney and his company (which he has sold but still runs) have been reported as having other legal problems as well. See also here. And lots of other places. Here's the NY Times take on the settlement and Mr. Charney's other troubles. According to the NY Times, "Mr. Charney, who has admitted in interviews to sleeping with employees, has faced several sexual harassment lawsuits since 2005."

Speaking of creative Canadians whose business involves IP, Conrad Black is no doubt pleasantly surprised to learn that he will get his day (actually an hour) before the US Supreme Court on the issue of:

Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.

For those that follow these things, here are some links:

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

And here's David Akin's perceptive take.

HK

News Aggregators as "Tapeworms"

There was much hyperbole at the recent Fordham conference about how news aggregators are, in the words of one of Rupert Murdoch important lieutenants and the editor of the Wall Street Journal, “parasites or tech tapeworms in the intestines of the Internet”.

My attempt to ask exactly how news aggregators that index and link to stories in online newspapers infringe copyright was, regrettably, not answered.

Google News, for example, provides links to countless stories that one would never find otherwise. Although the newly made over format is inexplicably worse in some respects than it was before, it can still be used - albeit with much more difficulty - for such useful purposes as finding the "latest" story on a particular topic of interest. Any source site can, as I understand, opt out. Few do - presumably because the exposure is more often than not beneficial.

I don't know whether or not Google "reproduces" on its servers the stories to which it links, and if so whether ephemerally for indexing purposes, or more permanently. If the reproduction is ephemeral, I don't know how long it lasts and how it works. If there is "reproduction" involved, I would imagine that there is an even better fair use argument under American law than is the case in the litigation which is now in limbo in the Google Book Settlement saga. The obvious difference is that there are significant chunks of scanned books available on Google servers, whereas Google News normally provides only a few words, the occasional thumbnail picture, and a link to the actual source.

What I do know is that, in most cases, the link on Google takes me directly to the Toronto Star, San Jose Mercury, Washington Post or whatever site to which it points - where I just might click on an ad and generate some revenue for one or more parties. I have access to the most famous and most obscure newspapers from around the world - with aggregation based on a vast choice of country based templates. Since few people subscribe to more than one paper, and even libraries can't subscribe to all papers, this is surely a useful and economically productive development.

For example, Google News took me to this op-ed in the Washington Post dated May 16, 2009, which is essentially an attack by a couple of Washington lawyers (Bruce W. Sanford and Bruce D. Brown) on Google News. Among other things, they suggest:

-- Bring copyright laws into the age of the search engine. Taking a portion of a copyrighted work can be protected under the "fair use" doctrine. But the kind of fair use in news reports, academics and the arts -- republishing a quote to comment on it, for example -- is not what search engines practice when they crawl the Web and ingest everything in their path.

-- Federalize the "hot news" doctrine. This doctrine protects against types of poaching that copyright might not cover -- the stealing of information not by direct copying but simply by taking the guts of the content. While the Internet has made news vulnerable to pilfering because of the ease of linking from one site to the next, the hot-news doctrine has limited use because it is only recognized in a few states.

Both of these are frankly regressive suggestions that would serve to perpetuate a business model that goes back more than a century and is doubtlessly much beloved by Rupert Murdoch. Much as I disagree with this article, I never would have found it without Google News.

The battle over whether the providers of news aggregation services and other "information location tools" need to be made explicitly subject to copyright liability or explicitly sheltered from it is bound to loom large in Canada and elsewhere.

But, whatever is killing newspapers, I have yet to understand how Google News is part of the problem.

HK

The Full Meaning of "Fulsome"

(Speaking of "cash" and "fulsome", this is Folsom Prison, made famous by Johnny Cash. Different spelling, different context).

The word "fulsome" has come up lately in much news and comment, for example here.

"Fulsome" is a very ambiguous and imprecise word that is best avoided in the legal realm. Its meanings range from “abundant" or "copious” or "comprehensive"on the one hand to “excessive” or “offensive” or "disgusting" or "insincerely lavish" on the other. Therefore, it ought to be used with great care, if at all, especially with a witness who is wont, at suitable times, to answer a question only in the most precise, limited and literal meaning that the witness can construe. Such a witness could respond to a request to provide a "fulsome" answer in quite different and not necessarily predictable ways, any or all of which may well fit the definition of "fulsome."

Here are two dictionary entries for "fulsome":

Merriam Webster:

Main Entry:

ful·some

Pronunciation:

\ˈfu̇l-səm\

Function:

adjective

Etymology:

Middle English fulsom copious, cloying, from full + -som -some

Date:

13th century

1 a: characterized by abundance : copious fulsome detail — G. N. Shuster> <fulsome bird life. The feeder overcrowded — Maxine Kumin> b: generous in amount, extent, or spirit fulsome in praise of the plane's crew — Don Oliver> fulsome victory for the far left — Bruce Rothwell> fulsome, the farewells tender — Simon Gray> c: being full and well developed fulsome, limpid voice — Thor Eckert, Jr.>2: aesthetically, morally, or generally offensive <fulsome lies and nauseous flattery — William Congreve> fulsome rogue — George Villiers>3: exceeding the bounds of good taste : overdone fulsome chromium glitter of the escalators dominating the central hall — Lewis Mumford>4: excessively complimentary or flattering : effusive fulsome — A. J. Liebling>

— ful·some·ly adverb

— ful·some·ness noun

usage The senses shown above are the chief living senses of fulsome. Sense 2, which was a generalized term of disparagement in the late 17th century, is the least common of these. Fulsome became a point of dispute when sense 1, thought to be obsolete in the 19th century, began to be revived in the 20th. The dispute was exacerbated by the fact that the large dictionaries of the first half of the century missed the beginnings of the revival. Sense 1 has not only been revived but has spread in its application and continues to do so. The chief danger for the user of fulsome is ambiguity. Unless the context is made very clear, the reader or hearer cannot be sure whether such an expression as “fulsome praise” is meant in sense 1b or in sense 4.

Random House:

–adjective
1. offensive to good taste, esp. as being excessive; overdone or gross: fulsome praise that embarrassed her deeply; fulsome décor.
2. disgusting; sickening; repulsive: a table heaped with fulsome mounds of greasy foods.
3. excessively or insincerely lavish: fulsome admiration.
4. encompassing all aspects; comprehensive: a fulsome survey of the political situation in Central America.
5. abundant or copious.
Origin:
1200–50; ME fulsom. See full 1 , -some 1

Related forms:
ful?some?ly, adverb
ful?some?ness, noun

Usage note:
In the 13th century when it was first used, fulsome meant simply “abundant or copious.” It later developed additional senses of “offensive, gross” and “disgusting, sickening,” probably by association with foul, and still later a sense of excessiveness: a fulsome disease; a fulsome meal, replete with too much of everything. For some centuries fulsome was used exclusively, or nearly so, with these unfavorable meanings.
Today, both fulsome and fulsomely are also used in senses closer to the original one: The sparse language of the new Prayer Book contrasts with the fulsome language of Cranmer's Book of Common Prayer. Later they discussed the topic more fulsomely. These uses are often criticized on the grounds that fulsome must always retain its connotations of “excessive” or “offensive.” The common phrase fulsome praise is thus sometimes ambiguous in modern use.

Usually, when lawyers say "fulsome", they really mean "full." I trust that the foregoing has been a full if not fulsome explanation.

HK

P2P & the (skinny) Long Tail Theory

(Wikimedia)

There's an interesting looking new paper from the in-house economist at PRS and Eric Garland of Big Champagne on the P2P and the Long Tail theory.

Here's the abstract:

The theory of the Long Tail first came to light in
Wired Magazine in October 2004, as legal digital
music services like iTunes and eMusic were
taking off. However, illegal music services like
Napster, Grokster or Kazaa had been around,
providing digital music fans with a massive
choice of music catalogue long before such
choice was legally provided. As a result, the
well-known anomaly of the digital music world
was reinforced - legal services constantly play
catch-up with illegal services, and the
enforcement of copyright persistently lags
advances in technology. With these issues in
mind, and the infamous Pirate Bay still very
much in the news (and still on folks’ desktops),
what does the Long Tail distribution profile of
hits and niches look like in the world of massive
choice that is P2P? Will Page teamed up with
BigChampagne's Eric Garland to figure it all out.
The following Insight paper is a bit longer than
those previously released by PRS for Music.
As such, we thought it best to give the reader,
upfront, a sense of where we are headed. In the
first section of this Insight paper, we will be
releasing the results of a critical inquiry into the
music usage patterns within file-sharing
networks. Particularly, would a so-called long
tail or a pinhead pattern describe the relative
popularity of music files within these networks?
In the second section of this paper, we will dig
into the 'Wherefores' - particularly issues of
supply and demand - underlying the usage
pattern we found. In the final section, we will
consider long-term trends in P2P activity
alongside some new behaviours that seem to
be emerging. We will then wrap this discussion
up with a few final thoughts on the 'paradox of
choice'.

HT to the 1709 blog.

HK

Justice Vancise Reappointed to Copyright Board

Justice William J. Vancise, who has shown considerable enthusiasm in his role as Chairman of the Copyright Board of Canada for the last five years, has been reappointed as Chairman for another five years. Here's the official news release.

HK

Bono Bonanza - Three Strikes and Three Bonos

MSNBC European Voice US Congress

It seems that Guy Bono (above, centre), Socialist Member of the European Parliament from France, doesn't like the "three stikes" bill and will fight it from Brussels.

BTW, here's the best description I've seen to date of the French HADOPI law, naturellement from IP-Watch.

Meanwhile, there's another Bono, the rightly renowned leader of U2 and proponent of many worthy causes. The manager of that band is prominently on record that:

The French government should be congratulated – it is proposing a law that is a workable solution to the problem of online piracy. It has brought together ISPs and content industries in a way that will effectively protect music and film rights, while respecting important consumer freedoms.

Then, there's the late Sonny Bono, musician and congressman, who also had some interesting thoughts on strong copyright, according to his widow, Congresswoman Mary Bono:

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.

Sonny probably would have loved "three strikes" - and extended the ban on internet access to "forever", in the interest of consistency.

So, I'm left to wonder about the answer to the proverbial question - cui bono?

Of one thing readers may rest assured - this blog is emphatically undertaken pro bono.

HK

Vive la France?

"

"Three strikes" has just hit a home run in France. But count on extra innings with the EU, where confrontation is imminent.

So - French downloaders, file sharers, and other "pirates" and anyone wrongly accused thereof three times along with their entire household will soon be in terror and hiding from the French authorities. Inspector Clouseau will be tracking "les pirates".

What would that great freedom fighter Charles de Gaulle have said? Perhaps:

• Vive la France!
• Vive la résistance!
  
• Vive l'internet libre!

HK

PS: don't miss Ed Felten's brilliant take on this, HT to MG.

The Maple Leaf Forever? - Maybe not in Europe

Well, the fur is flying fast in Europe and it’s all about Canada.

My esteemed fellow feline fanciers and IP afficionados at IPKat have brought to world attention the case of the attempted appropriation of the Canadian Maple Leaf - an “official” national emblem - by a private company called American Clothing Associates SA (ACA). It seems that ACA sought registration in the EU for the mark above as a Community trade mark for ‘leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery’ (Class 18), 'clothing, footwear, headgear’ (Class 25) and ‘tailoring; taxidermy; bookbinding; dressing, processing and finishing of skins, leather, furs and textiles; photographic film development and photographic printing; woodworking; fruit pressing; grain milling; processing, tempering and finishing of metal surfaces’ (Class 40).

Whether ACA sells seal skins and fur from Canada is unknown. Could that be the reason it covets our maple leaf?

To make a long story short, the examiner and the first Board of Appeal rejected registration for both classes on the basis that article 6ter of the Paris Convention protects national emblems. To everyone’s surprise, however, the Court of First Instance (CFI) allowed registration for services - on the basis that the Community legislation did not forbid it and that legislation was not inconsistent with the Paris Convention in the CFI’s view.

The case is now before the European Court of Justice (ECJ) and the Advocate General’s opinion has been published, which is available here. These “opinions” are not judgments but are usually followed by the Courts. The Advocate General would reverse the CFI and deny registration both for goods and services. My friend and fellow cat fancier Jeremy feels that this may be good policy but not necessarily a literally correct reading of the legislation and the treaty. He says:

The IPKat suspects that, on policy grounds if for no other reason, the Court would prefer to reach the conclusion regarding service marks that has been proposed by the Advocate General, but wonders how sound his arguments are. What we have here is really an argument that you have to give effect to the essential function of the Convention, which is defined by the broad terms of its preamble rather than the narrower substantive provisions by which its members are bound. It is inconceivable that the legislative intent was to create and apply a strict distinction between marks for goods and services, but what we are dealing with here is an absence of intention rather than a positive -- and many people would prefer Europe's highest court to apply the law rather than to create it.

It will be interesting to see how this turns out. It would be astonishing if national emblems can be taken for use as service marks.

I shall try to find out why Canada apparently has taken no part in this exercise. One would think that our Government had an interest to protect.

BTW, they love maple syrup in Europe. Let us close with a heart warming rendition of "The Maple Leaf Forever":

HK

UPDATE: Here's a story in the Ottawa Citizen on May 20, 2009 about this from Peter O'Neil.

Competition Curiousities in Canada

I'm not an big hockey fan. Much more of an opera buff, frankly. But I'd love to see another NHL team in southern Ontario. If the Leafs can't bring the Stanley Cup back to Toronto, where it belongs (at least every forty years or so), then maybe another team can bring it at least close to Toronto - e.g. Hamilton.

But it's kinda odd that Minister of Finance, Jim Flaherty, who has nothing to do with the relevant operations of the Competition Bureau, is saying that there could be a role for the federal Competition Bureau involved in the NHL Coyote debate. This could be particularly interesting given the following provisions relating to professional sport in the Competition Act:

Conspiracy relating to professional sport

48. (1) Every one who conspires, combines, agrees or arranges with another person

(a) to limit unreasonably the opportunities for any other person to participate, as a player or competitor, in professional sport or to impose unreasonable terms or conditions on those persons who so participate, or

(b) to limit unreasonably the opportunity for any other person to negotiate with and, if agreement is reached, to play for the team or club of his choice in a professional league

is guilty of an indictable offence and liable on conviction to a fine in the discretion of the court or to imprisonment for a term not exceeding five years or to both.

Matters to be considered

(2) In determining whether or not an agreement or arrangement contravenes subsection (1), the court before which the contravention is alleged shall have regard to

(a) whether the sport in relation to which the contravention is alleged is organized on an international basis and, if so, whether any limitations, terms or conditions alleged should, for that reason, be accepted in Canada; and

(b) the desirability of maintaining a reasonable balance among the teams or clubs participating in the same league.

Application

(3) This section applies, and section 45 does not apply, to agreements and arrangements and to provisions of agreements and arrangements between or among teams and clubs engaged in professional sport as members of the same league and between or among directors, officers or employees of those teams and clubs where the agreements, arrangements and provisions relate exclusively to matters described in subsection (1) or to the granting and operation of franchises in the league, and section 45 applies and this section does not apply to all other agreements, arrangements and provisions thereof between or among those teams, clubs and persons.

1974-75-76, c. 76, s. 15.

(emphasis added)

S. 45, of course, is the general "conspiracy" provision of the Competition Act.

The Minister said:

“We have a competition bureau and we have a competition tribunal in this country and if someone was of the view that the competition laws of Canada were being violated those would be the avenues to follow,'' he told reporters after a speech in Hamilton.

Mind you, he did say this in Hamilton, which may explain at least something.

But, meanwhile, where has the Competition Bureau been while Bell Canada has swallowed up Virgin's cell phone operation in Canada? Or on Ticketmaster, where Industry Minister Tony Clement had to place a wake up call to the Bureau?

HK

Some Possible Canada EU FTA IP issues

The Canada/EU FTA negotation process is underway. The EU has published a consultation document (HT to Jamie Love) asking what stakeholders think of Canada.

From an IP standpoint, there are many clear opportunities and pitfalls for Canadian interests depending on point of view. For example, consider the following - which apart from the first and the above illustrations relate to copyright law:

1. The EU is very aggressive on geographical indications. Does Canada want to take away the right of its food manufacturers, retailers and restaurants to sell domestically made products such as the following that we have referred to for years as:
a. "parmesan" cheese
b. “dijon” mustard
c. “prosciutto” ham?

2. The EU is has a life plus 70 year copyright term and is heading towards a 70 year term for sound recordings. The EU will clearly not harmonize downwards to meet Canada on this. Canada will be under great pressure to harmonize "upwards" to these lengthy terms. This would clearly be highly controversial in Canada.

3. The EU will doubtless press for quick Canadian ratification of the 1996 WIPO internet treaties, even though the EU has not ratified these treaties to date and has been claiming that such ratification is imminent for many years.

4. The EU has a very complex labyrinth of laws concerning parallel imports or "grey market" products. Essentially, they amount to a strong "Fortress Europe" regime to keep parallel imports out but such products are allowed to flow freely within the EU if they have been imported with the appropriate "consent", whatever that may mean. If goods can flow freely between Canada and the EU, the EU will probably want Canada to drastically change its laws to tighten up the possibility of allowing parallel imports into Canada because Canada could become a "back door" to Europe. This could prove costly for Canadian consumers, because IP has hitherto been essentially ineffective to block parallel imports of consumer goods into Canada, except for books. The EU is generally a very "high price" market for the types of goods that are subject to parallel trade, perhaps in large part because of its IP policies on parallel imports.

5. The EU has much more a much active antitrust policy and enforcement mind set and mechanism than Canada, and is extremely cognizant that IP rights are prone to abuse and other anticompetitive practices.

6. The EU will no doubt press for expanded ex officio border actions without Court orders that could interfere with legitimate trade and may not be necessary or desirable from a Canadian standpoint. This effort will no doubt be linked to the still secretive ACTA process.

7. The EU also has a rather strange database protection regime, which has led to some odd results in terms of "extraction" of information. Whether the EU will press for this remains to be seen.

I have not yet considered patent or trade-marks law, or the seal hunt.