Von Finckenstein on Throttling

Here is an amazing interview with Konrad von Finckenstein, the Chairman of the CRTC, with Jesse Brown of Search Engine, a remarkable program that was CBC's loss and is TVO's gain.

Mr. von Finckenstein answers Jesse's questions about last week's controversial CRTC Net Neutrality decision - or Indecision as I called it, since it essentially confirms the status quo, puts off the likelihood of any real change by years and shifts the onus on consumers to lay complaints.

I don't have time now to comment on the questions or answers in detail. I hope that there is eventually a transcript published of this.

But this much can be noted. , without any value judgment on my part. It is extremely unusual in Canada - or even the USA or UK - for courts to defend or even explain their own decisions. The decision of a court is expected to speak for itself. Canadian judges rarely speak in public, except on very general issues. They normally avoid any reference to specific cases, especially recent ones and particularly ones that they have been involved in deciding. While the culture involving tribunals may differ somewhat from that of Courts on the issue of “speaking out”, still Mr. von Finckenstein's interview is quite remarkable and unusual in terms of its candour, content and timing.

It is certainly a “must listen” for anyone who cares about the internet or Canadian governance.

HK

PS - gotta love the internet! There's now an obviously unofficial transcript posted by one Bob Jonkman on his blog. Unofficial but helpful. Can't vouch for accuracy but here it is.

And here's an excerpt that's very revealing as to whether we can expect any improvements anytime soon:

08:24 JB: Bell and Rogers, they’ve come out saying that they feel that they’re already in compliance with these rulings. This, this ruling changes nothing, that they say they’re fine with it because they’re already doing what you suggest.

08:35 KvF: I hope, hope that’s true. I hope that’s true. We shall see. You know, if, uh, you, for instance, uh, advanced technological user, and we, let’s assume for argument’s sake you’re a client of Rogers find they’re not, then, then first of all you going to go on the Web site and see who’s the in, uh, apply internet management traffic practices, or have they been, perhaps they’ve been described there, and does it say what the effects of those are. If they aren’t, and you find out they applied them anyway what you going to do? You’re going to launch a complaint and we will look into it. On the other hand, if they are exactly doing what they’re saying, then wonderful, and then we have total compliance, which is the whole idea.

Lord Mandelson, a.k.a. The Terminator's Last Strike?

Lord Mandelson in the UK seems eager to emulate France with a three strikes regime, notwithstanding criticism from no less than MI5. The very fine feline fancier and UK IP blogger extraordinaire Jeremy Phillips, aka the IPKat, points out:

It has been unkindly said of his Lordship that he understands better than others the operational functionality of a "three strikes" rule since, in the days before his ennoblement, he twice had to resign from a government position on account of his having done nothing wrong.

Could this be Lord Mandelson's last strike?

HK

UNCITRAL SECURITY INTERESTS GOC CONSULTATION

Following my earlier posting of October 15, 2009, the communication below has been received this past Friday October 22, 2009 from Ms. Sabo of the Canada's Department of Justice, who has also served as the Chair of the UNICTRAL Commmittee on Security Interests in IP for several years. Note that the meeting is on October 29, 2009 and the RSVP date is October 30 [sic] - surely meant to be October 28. The session in Vienna is on November 2, 2009.

*************

Le français suit

Working Group VI of the United Nations Commission on International Trade Law (UNCITRAL) will hold its fourth session on uniform rules relating to security interests in intellectual property from November 2-6, 2009. The product envisaged will be an addition to the UNCITRAL Legislative Guide on Secured Transactions, adopted in December 2007. As such it will be a non-binding set of recommendations and policy considerations.

Canada will be attending the Working Group session. To assist in developing Canada's position for the session, the Department of Justice is seeking the views of stakeholders on the proposals that will be on the table.

The relevant documents (A/CN.9/WG.VI/WP39 and addenda 1-7 and A/CN.9/WG.VI/WP40) are posted on the the UNCITRAL website at www.uncitral.org under "Working Group VI 16th session". You may also wish to refer to the Legislative Guide itself, or at least to the terminology and recommendations, which can be found at http://www.uncitral.org/pdf/english/texts/security/combinedlegislative%20guide.pdf.

Those interested in providing their views are invited to attend a meeting in Ottawa on Thursday, October 29, 2009 at 3:30 pm in room 5140, 284 Wellington Street. You may also participate by phone by calling 1-888-265-0903 and entering passcode 299716 followed by the "#".

Whether you wish to attend in person or by phone, please advise me or my assistant, Julie Di Lalla (jdilalla@justice.gc.ca) by Wednesday, October 30. Alternatively, you may send comments to me via e-mail (kathryn.sabo@justice.gc.ca). Please forward this message to other interested persons.

I look forward to hearing from you.

Kathryn Sabo

Kathryn Sabo

General Counsel | Avocate générale

International Private Law Section | Section du droit privé international

Department of Justice Canada | Ministère de la Justice Canada

Ottawa Canada K1A 0H8

kathryn.sabo@justice.gc.ca

Telephone | Téléphone 613 957-4967 / Facsimile | Télécopieur 613 941-4088

Government of Canada | Gouvernement du Canada

---------------------------------------------------------------------------------------------------------

Le Groupe de travail VI de la Commission des Nations-Unies pour le droit commercial international (CNUDCI) poursuivra l'élaboration de règles uniformes en matière de sûretés portant sur la propriété intellectuelle lors de sa quatrième session qui se tiendra du 2 au 6 novembre 2009. Le produit envisagé sera un ajout au Guide législatif de la CNUDCI sur les opérations garanties, adopté en Décembre 2007. À ce titre, il s'agira d'un ensemble non-contraignant de recommandations et de considérations en matière de politiques.

Le Canada participera à la session du Groupe de travail. Afin de développer la position du Canada pour la session, le ministère de la Justice demande aux parties intéressées de nous donner leurs commentaires concernant les propositions qui seront discutées.

Les documents pertinents (A/CN.9/WG.VI/WP39 and addenda 1-7 et A/CN.9/WG.VI/WP40) sont publiés sur le site internet de la CNUDCI à www.uncitral.org sous «Groupe de travail VI 16e session» . Vous voudriez peut-être consulter également le Guide législatif, ou du moins la partie qui porte sur la terminologie et les recommandations, qui se trouve au http://www.uncitral.org/uncitral/fr/uncitral_texts/payments/Guide_securedtrans.html.

Les parties intéressées sont invitées à une réunion qui aura lieu le jeudi 29 octobre 2009 à 15h30 à la salle 5140, 284 Wellington à Ottawa. Vous pouvez participer par téléphone en apellant le numéro d'accès 1-888-265-0903 et en entrant le code d'accès 299716 suivi du signe « # ».

Pour participer, soit en personne, soit par téléphone, veuillez aviser mon adjointe, Julie Di Lalla (jdilalla@justice.gc.ca) ou moi-même avant le mercredi30 octobre. Dans l'alternative, vous pouvez m'envoyer vos commentaires par courriel (kathryn.sabo@justice.gc.ca). Je vous invite à transmettre ce message à d'autres personnes intéressées.

Je vous remercie d'avance de votre collaboration.

Kathryn Sabo

Kathryn Sabo

General Counsel | Avocate générale

International Private Law Section | Section du droit privé international

Department of Justice Canada | Ministère de la Justice Canada

Ottawa Canada K1A 0H8

kathryn.sabo@justice.gc.ca

Telephone | Téléphone 613 957-4967 / Facsimile | Télécopieur 613 941-4088

Government of Canada | Gouvernement du Canada

More Tortuous Torture Tales

Well, it seems that the American's use of music to torture alleged terrorist prisoners is an issue that just won't go away. It has even given rise to FOIA requests. One of the songs that was used, apparently, was one of my all time favourites, the Meow Mix commercial:

The aggrieved artists who are protesting include Pearl Jam, R.E.M., and Trent Reznor of Nine Inch Nails.

As I've indicated before, there could be an issue as to whether ASCAP & BMI royalties are owed to the composers.

If ASCAP can chase after Girl Scouts to collect royalties, why not military prisons?

Now if the USA only had "moral rights" in its copyright law, which it says is so much better than Canada's, the aggrieved composers would have a good shot at getting an injunction. Yet another example of how much stronger and better Canadian copyright law is than that of the USA.

Notwithstanding what the new Ambassador to Canada, David Jacobson, who has wasted no time in becoming misinformed, is saying.

HK

CRTC Indecision on Net Neurtality ("Throttling")

With respect, I cannot share the enthusiasm of Michael Geist, etc. for today's CRTC decision on Net Neutrality ("Throttling").

True, the CRTC agreed with the overall principles of net neutrality propounded by its exponents, which allows for network management subject to rational, justifiable and not overly restrictive network management by the ISPs. But the decision basically leaves the effective responsibility of enforcement of these principles in the hands of consumers via a complaint mechanism, ensuring years more of litigation, delay and full employment for the lawyers involved. One can be reasonably confident that individual complaints by individual users will not easily or quickly move the huge edifice of the CRTC and the major ISPs.

In the short term, the only thing that will change for Canadian consumers will be they will learn with more transparency more details of why they have some of the worst internet service in the world at some of the highest prices. More transparency will not promote more competition in the market because there is no real competition in an essentially duopolistic market with now virtually insurmountable barriers to new entry.

The CRTC once again accepted at apparent face value that congestion was a fact. This should have required extensive review of the extensive evidence, much of which was cloaked with confidentiality. This should have been a key and reasoned conclusion. Once again, network congestion has been regarded as a premise.

Moreover, once again, the fact that most Canadian consumers are faced in reality with a choice between two duopolists was glossed over. The third party independent ISPs who must depend on one of the duopolist's backbones cannot compete on service in any meaningful way.

The decision glosses over the P2P issue, which is the elephant in the room. Leaving aside the inconvenient question of whether downloading of music is legal in Canada by reason of the levy scheme, and even conceding that the unauthorized downloading of entire copyright protected movies would normally be illegal, there still remains the fact that P2P technology has fantastic innovative potential for the authorized distribution of software, movies, music and other “big” files. In the language of a landmark US case, it has “substantial non-infringing uses.” The CBC has, to its credit, tried to use it but was thwarted by throttling. This decision will leave P2P under a serious cloud that will hinder innovation. This should not be the case. The question of unauthorized downloading and file sharing is a complex and important one, but it should not be solved or even dealt with at the CRTC.

So - the CRTC perhaps outlined the right principles today. But it did little to make them a reality. "Placing the onus squarely on consumers" as Michael puts it simply won't work. Given the likely lawyering involved, complaints could take years to resolve. And we're talking about the in internet here, which evolves, even when throttled, much faster than the CRTC can move. There is an old maxim in law that “There is no right without a remedy. Ubi jus ibi remedium.”

Given the enormity of this hearing (it was really the second major proceeding) and all the efforts that went into it, the decision could have and should have decided much more.

Let's see whether tomorrow's announcement from the FCC in Washington is bolder, more decisive and more innovative. I'm betting that it will be.

HK

A Real Canadian Copyright Debate

The Canadian Constitution Foundation ("CCF") October 3, 2009 panel on copyright moderated by Arnold Ceballos and featuring myself and Richard Owens has now been posted on YouTube. This was a genuine debate, though civilized throughout. This was the third annual CCF conference and I highly recommend this event for the future. Justice LeBel was the keynote speaker this year. Here's the program.

For my part, I tried to tie the main issues of copyright into other themes of the conference and interests of the CCF, such as freedom of various kinds, including freedom of expression and movement (e.g. across borders with laptops), freedom to innovate, freedom from "taxation", freedom from Big Brother "control" via DRM and TPM, etc.

Here's the whole panel. The odd camera angle is because the Power Point screen was off stage.

HK

Towards a Parody Consensus?

Glenn Kauth has an article in the current Canadian Lawyer magazine entitled Push and Pull of Copyright Reform.

He quotes several lawyers, including Ron Dimock, Peter Wells, myself and Jason Gratl (a Vancouver lawyer acting for a defendant in the Vancouver CanWest case which may turn on parody). But the most interesting quote is from Roanie Levy of Access Copyright, which wants to collectively license just about anything imaginable having to to do with the printed word and then some.

To my delight, even Roanie seems to concede that an amendment is necessary to deal with parody. She is quoted as follows:

“The law is not clear. In my opinion, [an exception for parody] is there. But we don’t have a lot of case law on it in Canada,” she says, calling for a “specific, limited exception” for such works.

Now, it seems that even Access Copyright is on board for a parody right/exception and will hopefully refrain from trying to monetize it through a "commercially available" exception to the exception or a "market-based solution" as is its wont. (I'm just kidding - please don't anyone get ideas). Can other content owner interests be far behind? Is this at least one area where there might be a glimmer of agreement?

Will Canada be able to regain its rightful place in the G8 of humour, at least?

In all seriousness, a satire and parody right/exception should be an obvious inclusion in any new legislation. It should by no means be the only "user friendly" gesture, as I am sure some content owners would like to see. But it would be a good start to restoring some sense of balance and civility in the great copyright wars that are unfolding.

HK

Canadian Un-Consultation re UNCITRAL Security Interests in IP Project

Despite the fact that a Canadian government official from the Department of Justice has been chairing UNCITRAL's work on security interests in IP for several years, there has been almost no consultation with the private sector in Canada on this important subject. The Europeans are very aware and involved - for the obvious reason that using IP assets as collateral to raise capital can be crucial to financing innovation. Here's info about a recent seminar in London, in which my friend Jeremy Phillips was instrumental.

Here are the links to the papers that will be discussed in Vienna from November 2-6, 2009. The papers date from July, 2009.

But so far, there have been no attempts of which I am aware by Canada's government to consult with Canadian experts and stakeholders in preparation for the November meeting. This failure to consult on this issue is deja vu all over again.

This is really a pity, given all the work of the late lamented Law Commission of Canada and many individuals under that aegis that was done on this issue. I was privileged to have advised the Law Commission on this project and to have edited the resulting book, which contains many excellent papers from Canada and abroad.

HK

PS - the UK government is seeking input on this process, perhaps as a result of my friend Jeremy's efforts. See this.

It is possible that the Canadian government believes that there is insufficient interest here to warrant consultation. That, however, would be an incorrect and conclusory inference. If there is lack of obvious exitement over this in the private sector, it may be only because the private sector is almost completley unaware of what has been going on at UNCITRAL for several years. One of the the main functions of consultation by government is educational. Up to now, this has not happened. Hopefully, our government will find a way to share its expertise with the private setor, so that meaningful and timely input can be obtained. The issues are very technical and complex. But there are those who care and are capable of comprehending them. It would be unfortunate if the private sector becomes informed about all of this only when it is a fait accomplit.

On CRTC, Kindle, Copyright Board, Copyright & Controversy

Michael Geist has unearthed the CRTC submission to the recent copyright consultation. It was apparently posted just yesterday, October 8, 2009 despite having been submitted on September 11.

The remarkably sensible submission is also remarkable for its frank recommendations on how things might be improved in terms of the tariff setting procedure and the work of the Copyright Board. The CRTC recommendations are quite consistent with my own now old observations found here.

No doubt some eyebrows will be raised about whether one tribunal should be suggesting changes in the way another should operate, for example with respect to:

* timeliness
* cost awards

For its part, the Copyright Board may nonetheless welcome the CRTC's suggestion that the Board should have "the resources necessary to fulfill its mandate within timelines that do not disadvantage the parties before it."

The problem, however, would be that the Canadian Copyright Board is already by far the biggest institution of its kind anywhere in the world. This leads to several other discussions, which I won't deal with here and now.

The CRTC also deals with private copying and the need for a single radio tariff. No fear of controversy here. This is vintage von Finckenstein.

The CRTC is right about its conclusion, which is this:

Copyright is a key instrument enabling the digital knowledge economy. For it to withstand the test of time, the Copyright Act should be reformed in a manner that defies a silo based approach — and includes considerations of related issues such as the extension of access to next generation networks, appropriate funding for the production and digitization of Canadian cultural content, and efforts to encourage research, development and innovation in the communications industries.

This is quite timely. Everyone is beginning to notice the precipitous decline in Canadian innovation that is resulting from a lack of competition in key sectors in Canada and lack of coherence in Canadian policy and regulation. See today's Globe and Mail.

The CRTC's conclusion is perhaps idealistic and not without irony. The CRTC itself has much to answer for in terms of lack of competition in Canadian telecommunications and the noticeable decline in innovation in respect of anything to do with broadband and wireless services. But this submission is a beacon of hope that some, at least, see the need to do things better going forward.

Something has got to give in Canada. I have no doubt that these issues are part of the reason that Canada is among the last to benefit from new technological innovations. For example, even if Amazon can find a carrier competitive enough to cut a decent Kindle deal, it would then likely be zapped with an application for a tariff for the “communication” right filed probably by Access Copyright ("AC") - and it would then have to spend potentially millions on that proceeding which would take years, not to mention the inevitable judicial review. The resulting tariff, if it were finally certified, could increase costs substantially and retroactively but not predictably, and with insignificant benefit to most actual Canadian creators. This is what happens with redundant collectively administered rights - to which our collectives wish to add even more.

HK

Update - A perceptive question/comment from Andrew Martin, former head of Access Copyright - below. Why might AC do this? For the same reason that music publishers have tried to get at least two bites and tariffs at the same online apple, so to speak.

Confused by Nuclear Reactor Marketers?

Are you looking to buy a new nuclear reactor, or to get an old one fixed?

Here's two choices and two trade-marks:

The Federal Court (Zinn, J.) has recently rendered a a decision that may signal both a potential breath of fresh air in terms of allowing for a much needed breakthrough in the granting of summary judgments and shows great common sense in terms of the working of trade-marks and copyright law. Justice Zinn found that summary judgment should be granted in favour of the foreign owned defendant AREVA (owner of the mark on the right) which was being sued by AECL (Atomic Energy of Canada), the owner of the mark on the left. Justice Zinn, looking at the evidence, concluded that both marks are stylized versions of the letter "A" but that it is the case that "In short, both marks always appear in concert with the corporate name or initials."

Justice Zinn noted that nuclear reactors are not bought in haste by a "moron in a hurry ", borrowing a famous trade-marks reference by Lord Denning. He even notes that:

In this industry, the fact that Homer Simpson may be confused is insufficient to find confusion.

(For further legal research purposes, this is Homer Simpson at work in a nuclear plant)

One can speculate about whether Zinn, J. was referring to Homer in his capacity as an average moron or a somewhat more sophisticated moron who works at a nuclear power generating facility, but the point is a seriously important one in terms of real world confusion and consistent with Canadian jurisprudence. Our Supreme Court has said that BARBIE'S for BBQ restaurants is not confusing to doll collectors. Either way, the point is well made and is clear. One must look at whether there is confusion or any current likelihood of confusion on the part of the buyers of the goods or services in question in Canada.

Wondering aloud and flippantly, I don't know whether there was any evidence led about certain countries wherein there may actually be morons in a hurry to acquire nuclear reactors - which is a timely and sensitive issue. But the litigation was, after all, in Canada and such references would be extraterritorial, to say the very least.

Thankfully, Justice Zinn also quickly and decisively disposed of the copyright claim.

Here's the decision - which is short, clear and can be read for enlightenment and even amusement - and even by copyright lawyers in a hurry.

For procedural wonks, this is the first important and clearly well contested summary judgment from the Federal Court in a long time. It was argued by very experienced counsel and has given rise to a very well reasoned decision. I wouldn't be surprised if there's an appeal, since even in these tough times AECL probably can afford to try. Indeed, given the weight of the previous jurisprudence, AECL may even succeed on overturning the grant of summary judgment, despite the likely outcome at trial. But this seems like a good case to test whether the road will open up for summary judgments that could ease the cost of litigation in many instances by shortening the process in apparently very clear cases.

HK