Tuesday, October 30, 2012

C-11 Soon to be Proclaimed in Force

Canada is moving closer to the proclamation in force of its Copyright Modernization Act (Bill C-11). We may shortly (November 7, 2012?) see the official announcement in the Canada Gazette Part II of P.C. 2012-1392 as follows:

Sections 1, 2(2), 3, 4, 6 to 8, 9(1), 9(2), 10, 11(1), 11(3), 12(1), 12(3), 13, 15(1), 15(3), 15(5), 17 to 46, 47 (other than s. 41.25, 41.26, and 41.27(3) of the Copyright Act, as enacted by that section), 48, 49 and 51 to 62 of the Copyright Modernization Act, S.C. 2012, c. 20, are proclaimed into force on the day on which this Order is published in the Canada Gazette Part II (P.C. 2012-1392).

Sections 2(1) and 5 of the Copyright Modernization Act, S.C. 2012, c. 20, are proclaimed into force on the later of the day on which this Order is published in the Canada Gazette, Part II, and the day on which the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996 comes into force for Canada (P.C. 2012-1392).

Sections 9(3), 9(4), 11(2), 11(4), 11(5), 12(2), 14, 15(2), 15(4), 16 and 50 of the Copyright Modernization Act, S.C. 2012, c. 20, are proclaimed into force on the later of the day on which this Order is published in the Canada Gazette, Part II, and the day on which the WIPO Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996, comes into force for Canada (P.C. 2012-1392).

H/T to Christina Winter, Copyright Officer, University of Regina who spotted this here and here.

PS  - here's a copy of the official document dated October 25, 2012 - P.C. 2012-1392


Sunday, October 28, 2012

SONY On Trial in Mississippi for Woody Allen Flick Copying Two Sentences (Nine Words) Inaccurately and with Attribution


The latest arguably excessively aggressive copyright litigation in the USA involves the attributed quote – or actually the slight misquote – of a couple of brief sentences from the late William Faulkner's Requiem For A Nun in a movie by Woody Allen.

Mr. Faulkner wrote:
"The past is never dead. It's not even past."

Mr. Allen’s movie, Midnight In Paris, supposedly has the following as part of the dialogue:

"The past is not dead" Actually, it's not even past. You know who said that? Faulkner.”

It should go without saying that any Canadian or UK court would toss this as “insubstantial copying”, without the need to even look at fair dealing. It’s two short sentences, and nine words. Almost nobody would consider the quotation involved here to be “substantial” or more than “de minimis”, although it was astonishingly suggested in the K-12 case in the Supreme Court of Canada that copying more than one sentence is “substantial”. Fortunately, the Supreme Court of Canada completely ignored this submission.

However, that said, there is some arguably rogue and wrong but often cited appellate law in the USA (Bridgeport v. Dimension Films, 6th Circuit, 2005) that even copying of just a millisecond of a song may be infringing. Well – one has to admit that this is, at least, a “bright line”, as that Court stated.

The Faulkner case is not in the 6th Circuit. What is important to know about this lawsuit is that it was filed in the Federal District Court in Oxford, Mississippi – the home of town of William Faulkner. A jury trial has been demanded. Anyone wanting to read up on jury trials in Mississippi may wish to consult John Grisham’s non-authoritative but very provocative and best-selling fictional effort entitled “The Runaway Jury”.

BTW, William Faulkner died on July 6, 1962. His works will go into the public domain in Canada at the end of this year.


Will Copyright Law Trump Free Trade and Domestic Resale Rights? Kirtsaeng v. Wiley - US Supreme Court May Decide

(Counsel in black robes preparing for Supreme Court oral argument - with apologies to the IPKat)

All eyes will be on the United States Supreme Court (“SCOTUS”) on Monday, October 29, 2012 when it will hear oral argument in the immensely important case of  Kirtsaeng v. John Wiley & Sons, Inc. This involves parallel importation of text books into the United States that were legitimately manufactured abroad. The American copyrit owner, however, wanted to block them because they were being resold at lower prices than market would bear in the USA. If this fact situation sounds rather familiar to Canadians, it should. That was basically the issue in Euro-Excellence v. Kraft which was decided by the Supreme Court of Canada in 2007. That case involved chocolate bars and the frankly far-fetched argument that copyright in a small logo on the wrapping should suffice to prevent the parallel importation of these products. Our court split in interesting ways on that case, in which I made the prevailing argument on behalf of the Retail Council of Canada. Here’s a brief analysis that I did for the Law Society of Upper Canada the following year. Actually, tomorrow’s issue went to SCOTUS once before in 2010 in the Costco v. Omega case once before, but the Court split 4/4 on it. 

The American lawyers are busy sharpening the fine points of their submissions, which will, if things are normal, will likely be instantly deflected and perhaps shredded by the usually rather vigorous questions of the SCOTUS justices (other than one well known exception, who may perhaps break his seven year long record of silence during oral hearings, given his interest and evident insight into IP matters, which is shown in the very important 2005 eBay v. MercExchange decision which held that  injunctions do not automatically flow from a finding of infringement in patent cases).

The issue of the treatment of parallel imports under copyright law is one that the late, great Sir Hugh Laddie described as “one of the most difficult topics in copyright law.” It must always be remembered that “parallel importation” refers to the importation of completely legitimate goods through channels other than the one preferred by the local rights holder.

It should be noted that Canada has a special sui generis regime for books that allows for the blocking of parallel imports. This flows from well over a century of angst about cultural protectionism for Canadian publishers. While one can envisage such protectionism for cultural products such as books, where local industries may be imperiled, it is difficult to see why a similar doctrine should be used to control and prevent free trade in consumer or commercial goods. That said, there is also an argument that IP regimes that prevents international exhaustion and the application of the “first sale doctrine” permits the sale of products such as books and computer programs at lower prices in developing countries. The American statutory provisions are very different than those of Canada, and do not differentiate between books, chocolate bars or wrist watches.

This is a debate that will not end any time soon, and perhaps should be dealt with one day in a treaty – provided that there is any agreement at all on basic issues. One thing, however, is clear. To suggest that there can be truly “free trade” at the same time that copyright law can be used to prevent the parallel importation of chocolate bars, wrist watches and even text books is at best na├»ve and at worst, disingenuous and oxymoronic.

If SCOTUS reverses the decision below – which ruled in favour of blocking importation – there will likely be intense pressure on Congress to restore free trade for the USA. One of the most cogent arguments before the court is that any interpretation that blocks parallel importation of products made abroad is likely to encourage even more export of jobs and manufacturing overseas. Arguably, much more is at stake tomorrow even than the right of international "exhaustion". Many are arguing that, if SCOTUS upholds the Court below, everything from garage sales to library lending to private sale of used Toyotas could be affected and prevented by excessively aggressive copyright owners. 

Unlike Canada’s Supreme Court, there will not be a live video feed of Monday’s hearing. We will, however, see a transcript shortly after the hearing. A recording of the oral argument will be available in a few days.

There will be a very high powered post-mortem including counsel of record hosted by the very energetic and remarkable faculty at the Washington College of Law, at 3:30 PM on October 29, 2012, which I believe will be webcast live.
Note: This event has been cancelled due to Hurricane Sandy. Is this weather event an example of life imitating art with pathetic fallacy?


PS - Prof. Ariel Katz has an excellent blog about this case here.

PS - 

After a really fast read of the transcript, I think that the key moment may have been:

JUSTICE KENNEDY: But you have to look at those hypotheticals in order to decide this case.
MR. OLSON: Well, and that's --
JUSTICE KENNEDY: You're aware of the fact that if we write an opinion with the -- with the rule that you propose, that we should, as a matter of common sense, ask about the consequences of that rule. And that's what we are asking.
Seems at least six judges are really concerned about "the horribles" (i.e. re-selling used Toyotas and displaying Picassos,  lending library books etc.) and/or exporting jobs. EVen Ginsburg asked about exporting jobs.

There wasn't much discussion of any middle ground.

Olson's best answer to the "horribles" was that they haven't happened, that they are different cases and that there's always "fair use".

The latter point is frankly ridiculous in any situation that readily comes to mind no matter how much one might love fair use. And as to the former points, Supreme Courts exist to decide cases with broad implications as Olson obviously knows. I'm astonished that he tried to confine the implication of this case to these specific facts.

I detected some serious potential sympathy from at least Sotomayor, Kagan, Breyer, Kennedy, Rogers and Alito in the rough chronological order that I noted it.

One can never really read too much into Judges questions - but I'm going out on a limb to predict reversal.

And by at least 6-3.

And I've read some comments from pretty smart people on listserves and blogs who seem to think that the SCOTUS may indeed reverse....


Saturday, October 20, 2012

John Willinsky of Stanford & UBC on "The Intellectual Properties of Learning and Changing Political Economy of Technology in Canada"

Everyone who reads this blog will want to watch a talk by  John Willinksy, a Canadian, who is now a Professor of education at Stanford but who keeps some ties with UBC and is a Fellow of the Royal Society of Canada. He looks at the issue of open access, IP, etc. from high up in the sky but with very high-resolution vision.

It's a really excellent lecture just given at U Vic entitled "The Intellectual Properties of Learning and Changing Political Economy of Technology in Canada".

It deals with open access, CRKN, Access Copyright, course packs, STEM cell research, etc. etc. It gets really interesting at about the 44+ minute mark on Access Copyright, the SCC decision, etc. He gets some of the legal details a bit wrong but not seriously so. Overall, it's terrific, impassioned, well-informed and - above all - addressed to educators, researchers, librarians, policy makers and those who really matter (i.e. not copyright lawyers).

There's an interesting question at the end from the Associate Dean of Engineering about the threat of "predatory journals" and funding issues - and a somewhat testy interchange. Willinksy gets the better of it, I think.

Here’s the link.

On the issue of “predatory journals”, see this important recent piece in NatureIf these predatory journals are a really serious problem, I am confident that the academy will quickly marginalize them and that there will be strong disincentives to publishing in them or citing to them.


Thursday, October 18, 2012

Convergence, Copyright and the CRTC

Once again this year, as was the case when the Supreme Court of Canada released its “pentalogy” of decisions on July 12m 2012, Canadian consumers, IP users and “public interest” advocates need to pinch themselves to make sure that they are not dreaming in Technicolor.

The CRTC has very surprisingly and very clearly rejected the proposed $3.4 billion Bell/Astral merger. Here’s the summary.  Here’s the decision.

BCE has become a superpower within the Canadian firmament, having huge and converged interests in just about all aspects of media (including news), entertainment, broadcasting, telecommunications, ISP, wireless  and even retailing.

Without commenting on BCE or this transaction in particular, it can  be the case from a purely copyright standpoint that this kind and quantity of convergence can end up being bad for consumers. And we all know that copyright is important these days.

This is because the naturally competition and even occasionally adversarial relationships that might have otherwise taken place between various parts of a corporate empire, if they were separately owned, may cease to take place if there is common ownership. Fuzzy and compromised thinking may be the result, with mixed or confused signals being sent out to regulators and consumers themselves.

The result can even be bad for the mega merged company itself. I suspect that SONY is an example of just such a result. As a hardware company, it was for a long time unbeatable in consumer and even some sectors of professional electronics. It made the best and most innovative gadgets in just about every category. But, then it decided to become an entertainment company too. The two don’t always mix. Entertainment companies virtually all believe that more copyright is always better. Consumer electronics companies tend to believe that less is more and better.

For example, at Canada’s Copyright Board, SONY had a big stake on both sides of the fence in the early days of the tape and CD levy. It stood to benefit from the revenues and was a major stakeholder in the CPCC. But, as a hardware and blank media manufacturer, it was an objector to the levies.  I suspect that SONY had some interesting internal discussions about levies and more recently about TPMs. On the latter front,  it found itself in the incredibly embarrassing position of having deployed its disastrous “rootkit” antipiracy malware embedded in sound recordings that destroyed or injured a lot of hardware that SONY would have made and sold to unsuspecting consumers.

Unlimited convergence may have had its day and that would probably be a very good thing. At least, for this day, it has met its match at the CRTC, and its new Chair, Jean-Pierre Blais pictured above.