Submission of Civil Society Coalition at WIPO SCCR 36 on Broadcasters' Rights Treaty

SUBMISSION OF

CIVIL SOCIETY COALITION

http://www.civilsocietycoalition.org
WIPO SCCR  36

Howard Knopf

May 28, 2018

1.      This current proposal frankly seems to be a proposed treaty that is mostly in search of a problem that doesn’t exist.

2.      If the problem is piracy, there are adequate and effective means of stopping piracy now in place virtually everywhere.  

3.      This proposed treaty is inevitably going to cause unintended consequences and complications concerning the internet.

4.      Among the many concerns we have about the broadcast treaty are:

a)      will the treaty outlaw the use of Virtual Private Networks (VPNs); and,

b)      will the systems of safe harbors for ISPs we now have for copyright also apply to the new broadcaster rights?

5.      It will create a potentially impenetrable thicket of new rights that will prevent lawful access to the underlying content, even long after the copyright – if any – may have expired.

6.      This reminds me of the WIPO Washington Treaty of 1989 – which was about integrated circuit protection – which was the next big thing at the time. That treaty was unnecessary and still hasn’t entered into force 29 years later.

7.      I note that this proposed treaty has been under urgent discussion for almost 20 years – and there’s still no evidence of any problems and the sky has not fallen. Indeed, new platforms for delivering digital content are exploding, and doing very well.  Lawful and convenient offers have reduced the piracy problems.  

8.      Canada has modest but adequate and effective provisions in its Copyright Act for the protection of the right of broadcasters. These provisions do not create the many problems that we foresee with this treaty as currently proposed. Canada’s provisions are as follows:

Rights of Broadcasters

Marginal note: Copyright in communication signals

    21 (1) Subject to subsection (2), a broadcaster has a copyright in the communication signals that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof:

        (a) to fix it,

        (b) to reproduce any fixation of it that was made without the broadcaster’s consent,

        (c) to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast, and

        (d) in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee,

    and to authorize any act described in paragraph (a), (b) or (d).

    Marginal note: Conditions for copyright

    (2) Subsection (1) applies only if the broadcaster

        (a) at the time of the broadcast, had its headquarters in Canada, in a country that is a WTO Member or in a Rome Convention country; and

        (b) broadcasts the communication signal from that country.

    Marginal note: Exception

    (3) Notwithstanding subsection (2), if the Minister is of the opinion that a Rome Convention country or a country that is a WTO Member does not grant the right mentioned in paragraph (1)(d), the Minister may, by a statement published in the Canada Gazette, declare that broadcasters that have their headquarters in that country are not entitled to that right.

Term of copyright — communication signal

23 (1.2) Subject to this Act, copyright in a communication signal subsists until the end of 50 years after the end of the calendar year in which the communication signal is broadcast.

Thank you.

Howard Knopf

CIVIL SOCIETY COALITION WIPO SCCR 36 SUBMISSION ON LIMITATIONS AND EXCEPTIONS

CIVIL SOCIETY COALITION

NGO SUBMISSION

http://www.civilsocietycoalition.org/

WIPO #SCCR36

Howard P. Knopf

Wednesday, May 30, 2018

• Unfortunately, certain interest groups and some experts are attempting to push back on limitations and exceptions and to use this forum to achieve that goal internationally
• It also seems that Canada is now the focus of much of this debate – and there are even frightening references to the “Canadian Flu” – being the supposedly dangerous cumulative effect of three SCC cases that were, in fact, decided before the inclusion of the word “education “in the fair dealing provision of the CCA took effect in 2012.
• It seems that certain experts are now “shocked, shocked” as it were that multiple copies are now being made and used legally in Canadian classrooms – in a manner perfectly legal even before the 2012 Canadian legislation. There have even been astonishing and, with respect, I believe very incorrect allegations from our esteemed friend Mihaly Ficsor that Canadian law contravenes the Berne three step test and the TRIPS treaty.
• That, of course, is frankly not credible.  Canada’s fair dealing statutory regime and case law stop far short in many respects than 17 U.S. Code § 107 – which allows for “teaching (including multiple copies for classroom use)” - and which has been the law since 1976 – 42 years – without any challenge under international law.
• However, many would prefer that the American concept of fair use and its embodiment in American law should NOT be adopted outside that country have no hesitation to say, “Do as we say, not as we do”.
• So, let us use this forum to achieve a better understanding of “users’ right” and the expansion of limitations and exceptions in a “large and liberal” manner – consistent with other exemplary laws, such as that of the USA.

Thank you.

Howard Knopf

Harmonizing Tariff Regimes and Statutory Minimum Damages: A Wolf in Sheep’s Clothing? UPDATE

(Wikemedia)

May 31, 2018 UPDATE of original post from May 26, 2018

I’m hearing that the Government is planning to table legislation concerning the proposal below before the House of Commons recesses for the summer. This could come the week of June 18, 2018.

If I am right about what the bill will try to do, the current Ministers and those of their staff and officials who are not familiar with the intensity of controversy that a bad copyright bill can arouse are in for a very unpleasant surprise. There are millions of voters who will not react well to a new “tax” on education that will increase costs and limit access to knowledge and inhibit innovation. This Government may have a majority and can pass any bill it wants in the House of Commons. But the Senate may not be so compliant and there will be millions of affected voters who will have an opportunity to express their views on a new “education tax” in November of 2019.

And, just to remind everyone, “education” is a provincial matter under Canada’s Constitution.

Giving the Copyright Board another million dollars a year was a bad idea because it will only slow things down even more and create the potential for administrative law challenges because the decision makers will likely have even less role in deciding decisions. However, harmonizing statutory minimum damages and maybe even tariff regimes on the fly at the behest of a very unpopular collective which wants a legislated business model that would give it a monopoly right to to threaten draconian litigation against its best customers is an infinitely worse idea. It could prove to be the worst copyright policy initiative in the long and often painful history of Canadian copyright law.

HPK

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

May 26, 2018

There is a very pernicious proposal afoot which some federal bureaucrats have been led to believe will help to fix things up at the Copyright Board by harmonizing tariff regimes, or at least the statutory minimum damages provisions available to collectives.

I have not seen the documents provided to the Government or the Government’s own internal documents. However, it seems apparent that this effort is being pushed by Access Copyright and is at best disingenuous and at worst deceptive, misleading and dangerous. Above all, it seems clear that this proposal, despite its ostensible purpose, has nothing whatsoever to do with fixing the Copyright Board – and would make things even worse in that respect, as I explain below.  Indeed, it would appear that there is a very different and ulterior motive behind this proposal.

There are provisions in the current Copyright Act that allow SOCAN to go after statutory minimum damages of three to ten times the tariff amount. So, if a recalcitrant bar or restaurant doesn’t want to pay $150 per year in applicable royalties, it can be threatened with up to $1,500.  A reasonable settlement will usually be reached. Not a big deal.  SOCAN tariffs are “de facto”, even if not “de jure”, mandatory – if the bar or restaurant wants to play contemporary popular music. If that’s what it takes to encourage bars and restaurants to pay for music, then so be it.

Now, however, Access Copyright is trying to convince – some might say to “con” – the government into making the same kind of 3 to 10 times regime applicable to educational institutions. The regime that applies to Access Copyright is not remotely comparable to the SOCAN regime. Access Copyright has comparatively little repertoire and offers comparatively very little in value to educational institutions, which is why so few are voluntarily signing licenses with Access Copyright anymore. Michael Geist has recently been documenting how institutions are spending a great amount of money to clear their copyright requirements – but they are spending it in other more productive and efficient ways than on Access Copyright. There is no reason for any institution to pay more than once for any required permission. The notion that a big university can be intimidated with a potential liability of 3 to 10 times the total amount of a tariff that didn’t’ need to be paid in the first place and resulting in a threatened liability of many millions of dollars is nothing short of offensive and scandalous.

This amendment would seem to be intended to intimidate educational institutions into believing – or maybe even to legislate in such a way –  that just one unauthorized copy of one single work in Access Copyright’s rather limited repertoire could result in liability of three to ten times the amount of a tariff, notwithstanding that the Supreme Court of Canada has ruled in CBC v. SODRAC that such tariffs are NOT mandatory for users.  (The Federal Court did not read the Supreme Court’s decision that way in the Access Copyright v. York University case, but the Federal Court’s decision is under appeal.) Access Copyright wants $26 per FTE student per year. In a bigger university, there are well over 50,000 students. That’s more than $1,300,000 per year and the Copyright Board makes everything retroactive by several years because it is very likely the slowest tribunal in Canada and perhaps anywhere else. The Copyright Board is still cogitating Access Copyright’s 2010 tariff proposal for post-secondary – that’s 8 years and counting with no endpoint in sight. That’s unheard of in Canadian tribunals or courts.

This is nothing short of an end run around the appeal process in the Access Copyright v. York University  litigation, which many believe that Access Copyright will likely lose in the Federal Court of Appeal – and/or ultimately in the Supreme Court of Canada. That prospect may be behind this initiative, which is dressed up to look like Copyright Board reform. In turn, it’s  also an end run around the Supreme Court of Canada’s 2015 conclusion in CBC v. SODRAC, which held that “the statutory licensing scheme does not contemplate that licences fixed by the Board pursuant to s. 70.2 should have a mandatory binding effect against users”, a fundamentally important ruling that arguably should have brought a quick end to the York University litigation. (Yes – I’ve been involved in both these cases).

It’s also a shocking end run around the whole s. 92 Copyright Review process. This would be a monumental legislative change by stealth to a system that has evolved with great care and deliberation over a period of 80 years.

Above all, it has nothing whatsoever to do with fixing the Copyright Board. Virtually all of what needs to be done to fix the Copyright Board in the medium term can and should be done by regulations pursuant to the existing legislation. Bureaucrats who believe otherwise are, with respect, simply wrong. See my submissions to the Senate and to the Government.

Indeed, this proposal would only make things worse at the Copyright Board because lots of parties would feel obliged to mount strong and expensive objections if there is any serious concern about possible liability for multiple times the cost of a so-called “mandatory” tariff – and the possible retroactive imposition of such a tariff.

It’s very disappointing that this proposal is being given ANY consideration. It should have been screened out before it took up anybody’s time. If it does see the light of day in a bill, there will be a massive and messy opposition to it from many of the millions of people involved in the educational community.

Ill conceived copyright policy and especially legislation can be toxic to politicians, as Sheila Copps, Sarmite Bulte, the late Jim Prentice, and others have learned to their considerable chagrin. Unfortunately, today’s Ministers are apparently getting some very bad advice on this issue from some of their bureaucrats.

These are my own personal opinions and not necessarily those of any client – but I know that they are shared by other knowledgeable people.

HPK

The Government’s Review of the Copyright Act and the Copyright Board – What’s at Stake? ALSO Presentation May 5 2018

I had the pleasure of speaking at the conclusion of the above event by a worthy origination - Artists’ Legal Services Ottawa (ALSO) - while the audience listened politely and was contemplating the outdoor patio reception across the street on one of the first nice days of spring.

It was good to see some old colleagues and meet some new ones.

I spoke about "The Government’s Review of the Copyright Act and the Copyright Board – What’s at Stake?"

Here are my slides from May 5, 2018.

HPK

CBC is Destroying its Archives in the Name of Preservation - Better Governance Needed

This press release below raises very serious issues about the governance of the CBC - not unlike recent issues involving the National Gallery and the inexplicably bad decision to "deaccession" Chagall's masterpiece Tour Eiffel painting. How can lame duck outgoing presidents - Hubert Lacroix of the CBC  and Marc Mayer of the National Gallery - be allowed to do so much damage? Where is the good governance? Independence is important - but so is the national heritage. We need to do better. The National Gallery train wreck was somehow averted.This one must be too.Tell @JustinTrudeau @MelanieJoly 

HPK

FRIENDLY GIANT FACES FIRING SQUAD!

TORONTO, ON.  April 30, 2018.   Thousands of episodes of home-grown CBC television shows that captured life in Canada are about to be systematically destroyed.

Gone in a flash will be childhood icons like The Friendly Giant and Mr. Dress-up, as well as episodes of Canadian television classic such as Wayne & Shuster, King of Kensington, Tommy Hunter and The Beachcombers. 

CBC has decided betacam versions of these and hundreds of other iconic Canadian TV shows are no longer relevant so a destruction order for 26,163 recordings will be carried out this week. These vintage recordings will be ground up into small pieces, then shipped for incineration to New York where the steam generated will feed energy into the state’s power grid.

This is a precursor to the mass digitization program CBC plans to launch this summer during which close to one million English-language original program ‘carriers’ will be destroyed after being transferred to the latest digital media formats. 

This controversial plan flies in the face of international archival protocols that, because of the instability and insecurity of present-day digital media (think how frequently we are warned of ‘hacking’ threats’) requires the preservation of original content.

“The CBC’s digitization plan will be underway for five years”, said Kealy Wilkinson, Executive Director of the Canadian Broadcast Museum Foundation.  “Until we can gauge the reliability of the outcome, it would be foolhardy to destroy early generation copies like betacam - or original programs. 

It is up to the CBC and the Department of Canadian Heritage to halt any destruction.

Doing less risks the extinction of Canada’s national audiovisual history.”

The Canadian Broadcast Museum Foundation (CBMF) is a not-for-profit charitable foundation working in the public interest to preserve and provide public access to Canada’s history, culture and broadcasting heritage.

Media contact: Kealy Wilkinson, Executive Director, Canadian Broadcast Museum Foundation, Email: cbmf0fmcr@gmail.com, Phone: 416-367-4772.