Thursday, September 29, 2016

Senate Committee on Banking, Trade and Commerce to study, and make recommendations on the operation and practices of the Copyright Board of Canada

The Honourable Senator Tkachuk moved, seconded by the Honourable Senator Nancy Ruth:
That the Standing Senate Committee on Banking, Trade and Commerce be authorized to study, and make recommendations on, the operation and practices of the Copyright Board of Canada.
That the committee submit its final report no later than Wednesday, November 30, 2016, and that the committee retain all powers necessary to publicize its findings until 180 days after the tabling of the final report.
After debate, The question being put on the motion, it was adopted.


This will be interesting.


PS - During the course of this brief discussion in the Senate, Senator Tkachuk stated as follows on September 28, 2016, as reported by Hansard:

He said: Honourable senators, to get this out of the way, there will be no travel on this matter. The House of Commons is charged with reviewing the legislation on the copyright bill that was passed a number of years ago. We have had a number of presentations from businesses that said that the Copyright Board itself should be subject to review. We have decided as a committee that we would then ask them to come forward to us over the next couple of day to see what the problem is. If there is, we will make a recommendation to the House of Commons that they not only study the bill but specifically include the Copyright Board, which is excluded from the process

 (highlight added)

Note that the announced deadline to report of November 30, 2016 and the reference to the "next couple of days" suggests warp speed activity on the part of the Senate and some intense lobbying activity coming from somewhere. Given the curious mix of "strange bedfellows" that are concerned with unacceptable delays, expense, retroactivity and other issues that are clearly apparent at the Board, this development is not surprising and may present a useful opportunity.

Wednesday, September 21, 2016

Golden Oldies for $5 Available at Walmart - the Stargrove Case has been Settled

I've been alerted to the fact that the Stargrove case at the Competition Tribunal has been discontinued and apparently settled.

While the settlement is confidential, it would seem that you can still get the Beatles' 1964 CD "Can't Buy Me Love" and several other early Beatles and other golden oldies albums for $5.00 each at Canadian Walmart. That was what Stargrove was fighting for. That would seem to suggest that the Canadian music industry blinked and backed down. 

The news is not all good, however, for Canadian consumers. The 2015 Canadian legislation extending the copyright term for sound recordings to 70 years from publication was a gratuitous and un-debated (because it was buried in a budget bill shortly before an election) gift from the previous Government to the American recording industry.  This was a true triumph of lobbying over logic and evidence. The noose will still tighten on reissues of CDs that were first published in the mid-sixties and later. However, that's about the time when the pop music industry arguably began its long, winding and sadly never ending road to decline. The Beatles broke up in 1970.  (Am I showing my age?)

There are lot of wonderful jazz, rock and classical top quality sound recordings from the 50's and early to mid-60's that are now in the public domain in Canada - subject, of course, to possibly still extant copyright in the underlying music.


Is Access Copyright "Selling the Brooklyn Bridge"?

Access Copyright Logo

Jet Lowe - Wikemedia

For any millennials and others who may not be aware, “selling the Brooklyn Bridge” is a metaphor for someone selling property that they do not own.

Back in 2012, I commented on the beta version of Access Copyright’s “look up” tool. Some improvement has now been made, although it is still being called a “beta” version several years later. It does not take long to figure out why.

One improvement that I called for has been implemented. For example, one can search by author’s name without knowing the ISBN number by using the “advanced” search feature. Moreover, “In sectors where a comprehensive licence is not available” one can now, apparently get a transactional (pay per use) license for a single work. However, this leads quickly to other vexing questions that are still apparent with this lookup tool that has ostensibly evolved into a permission tool.

Leaving aside the always interesting and fundamental question of whether Access Copyright has a valid chain of title to all of the works it purports to have in its repertoire, it is still troubling that Access Copyright  apparently is still offering to license material that is clearly in the public domain.  This is still apparently a problem, even though I wrote about it in 2009. (BTW, whatever happened to its vapour-ware public domain registry that was announced more than a decade ago?)

Access Copyright seems to be taking the position that an edition of a public domain work can be protected by copyright if it happens to include illustrations, a preface, or other material that may be protected by copyright. Indeed, here is an excerpt from Access Copyright’s potentially misleading FAQ concerning this issue:
I believe a work I wish to use is in the public domain, may I copy it?

The public domain includes all works no longer protected by copyright.  Works fall into the public domain once copyright expires.  The term of copyright in Canada is typically 50 years after the death of the last living copyright owner.  When making this assessment all copyright owners are considered; [sic] including editors, illustrators and translators.
(highlight added)

It is true that in the case of joint authorship (e.g.  Rogers and Hammerstein or Lennon and McCartney), the term of protection will be for 50 years after the death of the last surviving author. However, the illustrator, the preface writer, or the designer of the cover of a modern edition of a public domain work is certainly not a joint author of the underlying work. Editors and illustrators of even first or early editions are unlikely in most cases to be joint authors for the purpose of determining the copyright term in the underlying work. The Copyright Act defines a “work of joint authorship” as “a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors”. Access Copyright should make it very clear that this is the case. Instead, it seems to imply and perhaps even suggest otherwise

The fact of the matter is that anyone in Canada is free to copy any or all of the words and works that are in the public domain in Canada that have ever been written (e.g. by Charles Dickens who died in 1870) without permission from anybody. If there is an illustration, preface or other material that might still be protected by copyright in a modern edition, permission might be required for copying such material but not for Dickens’ words themselves. The routine inclusion of a copyright notice at the beginning of a new printing or even a new edition cannot confer copyright in the underlying words, if those words are in the public domain. All that said, one must remember that there may be potential issues (depending on what is done with such material) of infringement in other countries where the work may still be protected, such as the USA which has a longer copyright term of life + 70 and the term calculation can become devilishly complex. Remember, unless Canada caves in on further term extension, the term of protection for of literary, dramatic, musical or artistic works is still life + 50 years.

Nor can Access Copyright justify extending the copyright term of a public domain work simply because there may be some minor editorial contribution in a later edition. The Supreme Court of Canada made it abundantly clear in the CCH v. LSUC case that minor and routine editorial work is insufficient to confer copyright protection:
35  This said, the judicial reasons in and of themselves, without the headnotes, are not original works in which the publishers could claim copyright.  The changes made to judicial reasons are relatively trivial; the publishers add only basic factual information about the date of the judgment, the court and the panel hearing the case, counsel for each party, lists of cases, statutes and parallel citations.  The publishers also correct minor grammatical errors and spelling mistakes.  Any skill and judgment that might be involved in making these minor changes and additions to the judicial reasons are too trivial to warrant copyright protection.  The changes and additions are more properly characterized as a mere mechanical exercise.  As such, the reported reasons, when disentangled from the rest of the compilation — namely the headnote — are not covered by copyright.  It would not be copyright infringement for someone to reproduce only the judicial reasons.

This reasoning would almost certainly apply to most new editions of public domain works, even including so-called “urtext” music editions. As I commented a few years ago in another context:
Some publishers add often trivially minor editorial changes over the course of time to make the edition supposedly more “authentic”, which also has the result of prolonging copyright claims for those who are not astute enough or content to rely upon earlier editions. The Supreme Court of Canada has discounted down to zero the value of minor editorial work in asserting claims to copyright in, for example, judicial decisions. See CCH v. LSUC, para 35 etc. There is European law that might suggest otherwise in the case of scholarly editions of music, but I don’t believe that it would be followed in Canada, in light of CCH v. LSUC. Canada has a higher "threshold of originality" than the UK, for example. …
In view of the above, I find it curious that Access Copyright is apparently offering to sell transactional licenses to a wide variety of users, even to universities, for example:

- A 1935 edition of Beethoven’s (d. 1827) 32 piano sonatas edited by Artur Schnabel (d. 1951)
- A 1912 edition of the poems of John Donne (d. 1631) with an introduction and commentary by Herbert Grierson (d. 1960)

There are no doubt countless other examples of titles on Access Copyright’s database where permission to copy the public domain material is clearly unnecessary but Access Copyright seems to be ready and willing to sell a license anyway. I should say that I have not tried to follow up with Access Copyright on any of these offers, which seem to require an ISBN account in order to proceed to get a quote and to complete the transaction. An ISBN account is something I do not need or want and which looks like a fair bit hassle. However, I would be interested in hearing – anonymously if you wish – from readers with such accounts who wish to explore this further.

As for Access Copyright’s actual repertoire, I said earlier about the Copyright Board’s Provincial Government decision (currently under judicial review):
The Board certainly seems to be resiling from its frankly untenable cheque-cashing implied agency theory in the K-12 case. See para 136:
Access can only send cheques, and thus be able to argue for the existence of an agency relationship, in relation to at most 0.005 per cent of copying from works of non-affiliated rights holders. Even if we were to accept the premise that the sending of a cheque by Access in relation to a copying event, and its subsequent cashing by the owner of copyright in the work copied, forms an agency relationship in relation to that particular copying event, it would remain that this would not happen for at least 99.995 per cent of the actual potentially compensable copying of works of non-affiliated rights holders that will occur during the Tariff period.

The Board seems to have finally refused to include works of non-affiliated rights owners – which AC had tried to include by sending out cheques to sometimes bewildered recipients whose names somehow appeared in AC’s database and received a small cheque out of the blue (para 158).

There is growing scepticism by the Board re inclusion of repertoire from foreign RROs (para 165).

So, it will be interesting if the Copyright Board will eventually have something to say about Access Copyright’s apparent willingness to license material in the public domain. There was some discussion about Access Copyright’s look up tool and the repertoire question in paras 16-24 of the Board’s decision regarding the interim Post-Secondary tariff. Perhaps the Board will have more to say about this in the Board’s decision on the “final” post-secondary tariff, whenever that may be. The hearing for that tariff (unopposed for all practical purposes, which ironically gives the Board much more inquisitorial scope in certain respects) concluded in January 2016. However, unless the Board shortens its usual (and increasingly unsustainable and unmatched in Canada) two year or more delay with respect to pending decisions, we will not know the Board’s decision until sometime well into 2018.