Thursday, December 31, 2009

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

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

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

HT to IP Kat...


Sunday, December 20, 2009

VANOC Disrespects IP amd Creators in 2010 Vancouver Olympic Games

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

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

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

Here's the story.

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

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

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


Tuesday, December 15, 2009

US Takes Postive Step Towards Possible Treaty for the Blind

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

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

This is good news.

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

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

United States of America

Statement on Copyright Exceptions and Limitations for
Persons with Print Disabilities

As Delivered

December, 2009

Geneva, Switzerland

Thank you, Mr. Chairman.

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

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

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

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

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

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

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

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

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

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

Our commitment to reaching an international consensus

on copyright exceptions for persons with print disabilities

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

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

The first goal of international consensus in this area

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

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

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

Further international consensus on basic exceptions for print

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

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

A balanced system of international copyright law

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

Thank you.

# # #

Monday, December 14, 2009

Weapons of Mass Distribution Redux? - The White House Summit

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

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

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

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

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


PS - Dec. 15

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

For Immediate Release:
December 15, 2009

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

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

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

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

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

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

Wednesday, December 09, 2009

SOCAN & Sotto Voce Retroactivity & Pending Litigation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Tuesday, December 08, 2009

Copyright Capitulation - Solution to Canada/US Trade Issues?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


PS - the Globe and Mail confirms the above.

And Techdirt picks up....

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

Monday, December 07, 2009

AUCC and Excess Access Copyright

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

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

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

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

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

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

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

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

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

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

Question 2

Is photocopying still an important activity for teaching and research?

Question 3

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

Question 4

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

Question 5

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

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


Sunday, December 06, 2009

Canadian Proposal for ACTA Secretariat

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

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

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

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

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

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

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

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

Ambitious, yes. Necessary, not.

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

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

Not very well, I suspect.