Monday, October 24, 2011

IP Osgoode Comes To Ottawa With a Flourish - "Can Canada Learn Anything From Europe"?

IP Osgoode yesterday came to Ottawa with a flourish on Friday, October 21, 2011 to present a one day conference entitled “Can Canada Learn Anything From Europe?  European Perspectives on Copyright Law in the Information Era”.

It was really an excellent event - balanced, informative and even provocative.

All of the presenters were from Europe, with a good mix of those with common and civil law backgrounds. There were familiar faces. No doubt, the best known was the legendary lion (and indefatigable “Energizer Bunny®”)  of international copyright law, the ubiquitous, brilliant, and irresistible Mihály Ficsor. He is the “father” of the WIPO treaties, which Canada will no doubt eventually ratify. He now claims to have achieved the “70" part of “life plus 70". Interestingly, the topic of term of copyright was barely mentioned at all. Perhaps nobody thought that there is anything to be learned from Europe’s promiscuous penchant for prolonging copyright terms. Other well known presenters included Eric Baptise, Silke Von Lewinski, and Ted Shapiro (MPA’s man in Brussels), all of whom have a real and substantial connection, so to speak,  to and knowledge of many different jurisdictions.  Panel chairs were Pina D’Agostino, Carys Crag, David Vaver and Victor Nabhan.

There were some notable new faces and speakers, including Jonathan Griffiths from Queen Mary, University of London and Mindaugas Kiškis from Lithuania, to name just two. All of the presenters were very good.

Above all, the presentations were balanced overall and none were polemic. Ted Shapiro, who represents the movie industry and with whom I have sparred at Fordham, predictably called for strong rights and effective enforcement, but did so in a measured and constructive way. Prof. Griffiths dismissed as “absurd”, if I correctly recall his choice of adjective, arguments that call for the imposition of a highly restrictive reading of the Berne three-step test that would render the long-standing exceptions in many national laws meaningless and would, according to the concerted proponents of this theory, result in virtually no exceptions and limitations.  Levies were mentioned often, since most European countries - except the UK - have levies. The UK government continues to oppose levies.  

For those unfamiliar with the EU, this was a good introduction to the incredible labyrinth of directives that the now 27 member states must honour while at the same time continuing with their national cultures and traditions, and the basic fact that copyright law is - and arguably should remain - essentially territorial in nature.  Eric Baptiste - who was CEO of CISAC in Paris and is now CEO of SOCAN in Toronto, Canada - discussed the demise of the Santiago Agreement and the difficulties of mandating simple solutions for licensing issues across  27 jurisdictions. 

Time being limited, there was little direct discussion about the functioning (or lack thereof) of the European Commission and the judicial system that includes “references” from member states. The late, great Sir Hugh Laddie was not notably enthusiastic about how all of this was developing with respect to IP law.  For example, it would have been interesting and useful to hear more about the forthcoming SAS Institute Inc. v World Programming Limited case at the ECJ case about whether copyright should extend to the functionality of computer programs and why it is that the ECJ will hear this case, an issue clearly resolved about 25 years ago on this side of the pond. That said, there was considerable discussion about the recent ECJ Premier League decision involving football and decoder cards.

It is apparent that all of the workings and developments in the EU are incredibly complex and not always productive. The tower of Babel created by the recognition of 21 languages is just one aspect of this complexity.  With the current economic and political troubles and a long view of history, one sometimes wonders how much longer the EU as such will survive. However, that issue was not on the official program.

Perhaps not unsurprisingly, a number of speakers referred frankly to what Canada should not learn from the EU.

Pina D’Agostino and her colleagues are to be complimented not only for the substantive content of the conference but for the brave act of hosting it in Ottawa, while they hail from Toronto. This is a real logistical achievement. The arrangements at the new Ottawa Convention Centre were outstanding, including a high quality webcast that I understand will be archived. IP Osgoode’s generous sponsors also deserve credit and thanks. Remarkably, there was no registration fee. And there was even a very pleasant “free lunch”.

This was the first of more promised IP Osgoode “destination” conferences. Next year, if Canada has a new act, and maybe even if we don’t, hopefully IP Osgoode will take its show on the road once again. 


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