A good call by Hon. James Moore on Funding for CDN Music Industry

As I tweeted earlier yesterday:

Bravo to @mpjamesmoore for serious $78 million support for CDN music. This is far more effective than an iPod "tax".http://bit.ly/9Rs7D1

Indeed, it makes a lot of sense to encourage Canadian artists directly through Government programs. That way, the money can go to Canadians and those who have a case to get it.

In this case, the three organizations entrusted with taxpayer's money are worthy ones - namely:

FACTOR: www.factor.ca

MUSICACTION: www.musicaction.ca

SOCAN Foundation: www.socanfoundation.ca

They should hopefully do a decent job of distributing $78 million of taxpayer dollars to worthy Canadian artists - at least in the commercial music realm.

Serious music is quite another matter, and requires further special attention. This is especially the case since the current management of CBC has effectively thrown serious music under a bus and destroyed 70 years worth of essential infrastructural support for it. It's still not too late to restore much of what was lost and even to save a lot of money in the process - not least of which would involve significantly lower tariff payments to SOCAN and Re:Sound (NRCC). But some serious decisions need to be taken by the CBC president if this is to happen, and if not by him, then by the Board of Directors and potentially, if necessary, by the Government.

Because funding programs are outside of the copyright system, they are not subject to the strictures of national treatment, which inevitably results in major outflows to the USA and EU.

This is far better than an iPod "tax" that would hand over lots of money to the the CPCC, which will eventually hand out what's left, after legal, consulting and other expenses, to mostly foreign interests on the basis of proven commercial success - i.e.not to emerging and/or deserving Canadian artists who don't show up enough or at all on the record or radio play data to benefit to any meaningful extent. . Not to mention the distortion and inefficiency such a "tax" would create in the market for everything from cell phones to laptops, and - of course - iPods.

HK

Justice Hughes on Canada's Copyright Act

Here is a recent breathtaking ruling by Hughes, J. of the Federal Court of Canada setting aside a "rolling Anton Piller" order that allowed for civil search and seizure before judgment against several "small shopkeepers." It is an excellent review of the dangers of this ultra-powerful enforcement weapon when used improperly and on the basis of "careless, inadequate or misleading" evidence. This ruling must be read with great care by any IP enforcement counsel contemplating use of an Anton Piller order.

And here's a statement from that ruling that should be brought to the attention of those who would impugn the adequacy of Canadian copyright law and are calling for additional and unnecessary enforcement powers:

[60] The Copyright Act supra is among the most generous of any intellectual property statute in Canada or elsewhere in providing for rights and remedies. Copyright subsists without the necessity for registration and is presumed in the absence of evidence to the contrary. Registration is cheap and easy and provides presumptive evidence as to copyright subsistence and ownership. Proceedings can be quickly brought as an application rather than an action. Damages can either be proved or an election to take statutory damages made. An injunction can extend to works not specifically put in issue. Allegedly infringing works can be taken into interim and final custody. An Anton Piller Order must be considered as an exceptional remedy to be used with caution and respect. It should not be considered as routine where so many other remedies and procedures are available.
(emphasis added)

For those in policy circles abroad who may not know him or have seen him at the Fordham IP conference, Justice Hughes was a preeminent Canadian barrister for decades before his appointment to the Federal Court. His books are - or should be - in every IP firm library in Canada. He speaks not only with the authority of a Federal Court judge but as a judge with vast and successful experience in IP law. His views require attention in any fora where IP policy is in issue. ACTA, CETA (Canada/EU) , Special 301 and domestic copyright revision immediately come to mind.

HK

PS - this 30 page ruling dated April 12, 2010 was issued five days after the hearing.

Levy Myths, Strange Bedfellows and Taxing Technology

So - the Liberals, NDP and Bloc have voted for a thankfully non-binding resolution supporting an iPod “tax”.

And here comes another “save the levy” love-in (i.e. press conference) of artists at the this year’s Juno awards in Newfoundland, paid for by the CPCC which places “levies” on CD’s many or most of which are used for anything but copying music. In other words, paid for in large measure by those who have used CD’s for baby and pet pictures and data backup.

Let’s get some facts straight on the proposed iPod “tax”. Yes - I’ve been paid to work against it in the past, but nobody is paying me to write the following. I’m a lawyer, not a lobbyist. And unlike a prominent Canadian copyright lawyer I recently heard speaking, I do disclose when I have had involvement on the record in litigation.

The last time the CPCC tried this on for size in 2007, it formally asked for a $75 levy (i.e. “tax”) on a 30 gig or more device, such as the iPod Classic which currently sells for about $270 in Canada and about $40 less in the USA. This $75 figure is a matter of record. See here at top of page 5. To deny or to fudge this is simply wrong.

If this “tax” or anything close were to be imposed, many Canadians would take the very easy step of buying such a device from the USA. There are highly reputable online retailers in the USA happy to ship to Canada and the shipping cost would be minimal, given the small size and weight. More retailers would appear. Why would a rational consumer pay a face value difference of more than $100, with the CDN dollar at par or better?

Here’s the key definition in Charlie Angus’s Bill C-499:

“audio recording device” means a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings, excluding any prescribed kind of recording device”

The way that Charlie’s bill is drafted, the levy would clearly apply to all kinds of cell phones, smart phones, external hard drives and even to laptops and personal computers, since they have “embedded” memory for all intents and purposes. Devices that use removable flash memory (e.g. Blackberries) would be off the hook, while others such as iPhones would be caught. This alone shows how unworkable such a “tax” is from the start. Of course, to even the playing field, the CPCC could try to “tax” removable flash memory, which it has not been able to do in the past and will not likely be able to do in the future. Since the Federal Court of Appeal has all but disowned its last decision on what “ordinarily used” means in the context of blank CDs, I doubt such a levy on removable flash would survive - even if the Copyright Board blesses it in the first instance.

So, the CPCC could seek a tariff on all kinds of devices at the Copyright Board, which has shown considerable sympathy with extending this levy scheme as far as it can be pushed and then some. The Federal Court of Appeal has not once but twice had to tell the Copyright Board that it cannot levy “devices”.

The exemption by regulation provision would be useless. Needless to say, getting exempting regulations implemented after the fact cannot be counted upon and would never be easy. The regulation making power of the Governor in Council should never be counted on as an antidote to bad legislation.

Politics often maketh strange bedfellows but the current alliance of the Bloc and NDP on this issue - plus today’s addition of the Liberals - is really odd. Here’s what the Bloc spokesperson said in the House the other day:

There can be no doubt that people must be paid for their work. All workers have the right to earn wages, even my colleagues and me. Artists and craftspeople have the right to be paid for what they do and create. Consumers have the right to load the CDs they have legally purchased onto their iPods without feeling like they are breaking the law every time, without feeling like criminals.

Let’s examine some of the contradictions, paradoxes and myths that flow from those two sentences alone, which are straight from the CPCC play book:

1. Sure, musicians should get paid for their work. But musicians aren’t working when someone shifts music from one format that has already been paid for to another - whether for preservation or convenience purposes. And why should they be paid from the proceeds of a very high “tax” on countless people who don’t listen to any music on these devices? All of these devices are, after all, multipurpose. That is the beauty of modern innovative technology and the very essence of the modern computing “machine” that can do whatever it is instructed to do. And that’s why there is not and likely will never be “taxes” on media or devices in the USA, the UK and Australia, which are Canada’s closest copyright proxies. These countries “get” the idea that technology shouldn’t be taxed in favour of the loudest interest group. Justice Stevens got it in 1984 in the US Betamax case when he carried a majority of the US Supreme Court in favour of innovation rather than inhibition of promising new technology capable of substantial non infringing use.

2. Consumers should not have to pay a “tax” to format shift CDs they already own. Even the President of CRIA agrees with that. The musicians have already been paid at least once - and more than once for those who have replaced LPs with CDs.

3. How many times should copyright owners get paid for the same thing? Musicians are already getting paid for iTunes downloads by the record companies - assuming that the record companies get around to it - which doesn’t always happen. The Board has already certified Tariff 22.A for composers and authors (subject to judicial review) for permanent downloads from iTunes, etc. This is SOCAN’s Tariff 22A. That is for a “communication right”, even though the composers are already getting paid for reproduction. More can be expected in due course from other claimants. Unlike US Courts, the Copyright Board has no hesitation in imposing multiple tariffs on the same transaction in favour of different collectives with more or less the same ultimate stakeholders for what the Board considers to be distinct rights under the legislation.

4. There is a myth that these “taxes” ensure that creators get paid. This is easy to dispel. The maximum average payout to beneficiaries of the Canadian private copying levy to date is about $160 a year, according the CPCC’s and www.savethelevy.com own figures. The average payout to actual individual creators is doubtless much less, because this figure includes some presumably very large payouts to publishers and record companies.

5. There is a myth the levies benefit creators. See #4 above. On the other hand, about $25 million to date has been paid out to date to a handful of lawyer and consultants and the employees of the CPCC. It is not a large organization. I strongly suspect that the levy results in no more than enough for a few beers per year per musician, and that’s only for those who show up on the CPCC radar screen on the basis of radio play and CD sales, which by definition is a fraction of the creative musician universe. Many emerging artists, most well established “serious” musicians, and many of yesterday’s stars are probably not getting a penny. Not to mention countless “session” musicians, who are the backbone of the music business. This levy means virtually nothing to them.

6. There is a myth that the levy system in Canada is transparent. However. I have been trying for a long time to get disclosure of such basic figures mean (average) and median payouts to creators and other categories of beneficiaries. The Copyright Board won’t require this disclosure, although it could readily do so in my view. It considers this to be an internal matter for the collectives. So, not only individual creators but the Canadian public have no idea of how much this levy really means to the average and median creator. I challenge the CPCC to provide audited figures on this to the public. But I won’t be holding my breath.

7. There is a myth that there is a reliable method in the distribution of the levies. They are supposedly distributed, as noted, according to data relating to radio play and sales. This, of course, has no obvious connection to what is actually copied but does clearly favour established artists and record companies. While the big record companies and collectives may keep a watchful eye on each other, I have seen no basis to assume that anyone is looking out for the interests of individual non-commercially significant creators in this distribution process.

I’m just getting started....

This particular exercise in Parliament will, of course, have no legal significance whatsoever - but it could have very interesting political consequences. Ironically, and not for the first time, these consequences will probably not be what the music industry intended.

HK

Lost in the iPod Shuffle “Tax” Shuffle

Charlie Angus, M.P. from Timmins, is the able NDP copyright critic and is doubtless Parliament’s most accomplished professional musician, although he has yet to perform with Yo-Yo Ma. But he is a two time Juno award nominee. Earlier this week, he caused a stir on the Hill with two items. The proposed iPod “Tax” Bill - which could have hit on everything from iPod Shuffles to Blackberries and even personal computers - did not sit very well with most people - and especially not well with the two responsible Ministers and the Government. Within no time, Minister Clement called it “nonsensical” and Minister Moore said “Consumers deserve lower, not higher taxes.” That’s a pretty decisive response from the Government, I would say.

Lost in the shuffle and the ensuing noise, spin and misinformation, was Mr. Angus’ other item, which was a very positive suggestion dealing with “fair dealing”:

M-506 — March 15, 2010 — Mr. Angus (Timmins—James Bay) — That, in the opinion of the House, the government should amend section 29 of the Copyright Act in such a way as to expand the Fair Dealing provisions of the act, specifically by deleting section 29 and inserting the following: “29. Fair dealing of a copyrighted work for purposes such as research, private study, criticism, news reporting or review, is not an infringement of copyright. 29.1 In determining whether the dealing made of a work in any particular case is fair dealing, the factors to be considered shall include: (a) the purpose of the dealing; (b) the character of the dealing; (c) the amount of the dealing; (d) alternatives to the dealing; (e) the nature of the work; and (f) the effect of the dealing on the work.”.

Mr. Angus' wording is a good first draft of what should be done in the legislation. It certainly merits discussion, as the Globe and Mail masthead editorial yesterday confirmed:

Mr. Angus also tabled a motion that would expand the Copyright Act's definition of "fair dealing," allowing the reasonable use of copyrighted materials for innovation, research and study - a welcome move.

Mr. Angus’ approach is completely consistent with the landmark decision of the 2004 Supreme Court of Canada in CCH v. LSUC. Indeed, it may do nothing more than to codify it. The CCH decision has been incorporated into the pantheon of American copyright scholarship by William Patry, author of one of the two leading treatises on American copyright law. Mr. Patry comments on how Chief Justices McLachlin's' reasoning on behalf of a unanimous Court in CCH fits into a great common law tradition in the evolution of “fair use” and “fair dealing” that is consistent with the ultimate purpose of copyright law, which is to “encourage learning.” According to Patry:

What Judge Leval [Appellate Judge of the 2nd Circuit Court of Appeals in the USA and fair use scholar], Chief Judge McLachlin [of the Supreme Court of Canada], and the early common-law judges who created fair use understood is that copyright is a system; it is not a thing, it is not a property right. Copyright is a means to an end, the end being to encourage learning. All learning is a community experience, and one that takes place over generations, over decades, over centuries. For any system to function, it must take into account, in a meaningful, liberal way, the manner in which humanity proceeds. In the case of copyright, this means that fair use must be viewed as an integral part of the system, and not a begrudging exception to a Hobbesian state of nature where ruthless enforcement of exclusive rights as private property is the ideal.”

So much for the “moral panic” comments circulating about the ills of the “fair use” approach and how it will hurt all manner of creators. It is no accident that America creates and exports both commercially and artistically successful culture and innovation with astonishing success. Its long standing embrace of an open ended common law evolution of permitted “fair” use in copyright law has served American creators and innovators very well, not to mention incredibly successful corporate interests in the content industries. In order to create great new content, it is necessary to absorb, use, “remix” and deal with previous work in a fair way. That cannot be circumscribed by a closed door approach and a list of often picky and silly exceptions, such as the infamous Canadian “dry erase board” provision introduced in 1988 - yes - 1988, not 1788.

This discrepancy hurts the Canadian creators who are supposedly being helped by some powerful corporate lobbyists, who never hesitate to profess to speak on the creators’ behalf. Maybe the reason that so many of Canada's talented comedians, film producers and others have moved to the USA is, at least in part, that we can’t do much satire or parody in Canada because of past restrictive interpretations of fair dealing, which may or may not be good law any more but are still on the books and have not been overruled. Nothing chills the creative spirit like the threat of litigation in the morning.

And so much for the bizarre suggestions under the lead authorship of a well known lobbyist that an approach such as that of Mr. Angus would violate the Berne Convention. If so, Canada would be in good company, namely that of the USA itself. It taxes credibility to suggest that there would be such a challenge over an amendment that essentially codifies the decision of Canada’s Supreme Court, which in turn incorporates and reflects more almost two centuries of the Anglo-American common law approach to the evolution of what is fair and permissible in the context of copyright.

Thus, it is more than curious why there is such a concerted effort driven by those same American corporate interests that have done so well under the US copyright system to deny Canada the benefits of one of the better aspects of the American approach and jurisprudence. Make no mistake - these folks are trying to push back and to effectively undo the decision in CCH v. LSUC.

Meanwhile, these same lobbyist folks are equally busy trying to force Canada to adopt the bad aspects of the US system as embodied in the DMCA approach, which has not worked well. Take this not from me but from the “architect” of the DMCA and the WIPO treaties, Bruce Lehman.

Canada has an opportunity to show leadership by picking the best features from other countries’ copyright laws, learning from their mistakes, and adding some considerable “made in Canada” value.

Recent Ministerial pronouncements are very promising indeed. We optimistically look forward to a copyright system that Canadians deserve and need and that will outlast the persistent attempts of lobbyists who would like to control the future of culture and technology by going backwards in time.

Bravo, Charlie Angus, for provoking discussion on this crucial “fair dealing” issue. Let’s hope that the fair dealing discussion doesn’t get lost in the the iPod Shuffle “tax” shuffle.

HK

Trosow on Flexibility

Prof. Sam Trosow has republished his recent March 12, 2010 Lawyers Weekly article on his blog here.

Sam makes the excellent point that it is is unlikely that legislation that codifies a more liberal approach to fair dealing or has the effect of "relaxing the categories", would be subject to a trade-law challenge. Sam is an American trained lawyer and has expertise in both Canadian and American copyright law.

Sam suggests that:

The Act's fair dealing provisions should be amended to correspond with the values stated by the Supreme Court of Canada in CCH v Law Society of Upper Canada [2004] 1 S.C.R. 339. This could be accomplished simply by adding the words "such as" to the existing listing of categories and by incorporating the six fair dealing criteria adopted by the court into the Act.

The idea that reasonable steps in this direction would violate the three step test requirement of Berne, as suggested by Messrs. Sookman and Glover, is simply bizarre. Nobody has ever seriously suggested that Section 107 of the US Copyright Act contravenes Berne. Obviously, the US Government doesn't think so. For example, this provision explicitly states that that multiple copies for classroom use can be fair use. It also explicitly leaves the list of examples of fair use open, which has, for example, enabled the US Supreme Court to rule that parody can be fair use.

If Canada does what Sam suggests, the USA would look rather silly if it were to launch a trade challenge based on the Berne Convention and the three step test. It's a safe bet that there would be no such challenge.

HK

Will Canadian Copyright Revision Spring Forth Early?

This year, it sure looks like we are having an early spring.

And it may be that we will have an earlier than expected springtime copyright bill, as I am hearing on good authority.

Will it hopefully be truly “recalibrated” to serve Canadian needs and show Canadian competence, sovereignty and leadership? Or will it be the “Son of 61" - and follow in the footsteps of that very unpopular bill from 2008?

Will it be WIPO ready, and if so will Canada ratify the WIPO treaties? More crucially, will it be ACTA ready, whatever that may turn out to mean? If it is a balanced, reasonable and viable bill domestically, will that mean that Canada has drawn a line in the sand beyond which it will not go in the so-far-secret ACTA negotiations?

And above all, can any bill of any substance be passed in this minority Parliament and get through the Senate with adequate committee hearings and debate in time for the next election, whenever that may be? Bill C-32 - which was much simpler and much less controversial than Bill C-61, for example, took precisely a year to get through and that was with a majority government and without any effective mobilization of "citizen democracy" online. In 1997, we did not have blogs, Facebook, Twitter or YouTube.

If the next bill is truly balanced, well drafted, and comprehensible, it could be passed into law relatively quickly. If not, it may become the third failed bill in five years.

HK

Toyota and TPMs

Toyota is sticking (pardon the pun) to its supposed rights to control the TPMs in its cars' black boxes.

These boxes may contain useful information for plaintiffs in various lawsuits, not to mention regulators. But only Toyota can decode this information and "says it only makes the data available when requested to do so by law enforcement, federal regulators or by court order", according to the Wall Street Journal's Law Blog.

The obvious questions that now arise, such as whether we can trust Toyota to provide full disclosure of the decoded information, once again require that we ask whether any protection for TPMs is warranted in the absence of all necessary protection from them.

Indeed, maybe we need go even further to ask whether there are some situations - such as the use of TPMs in automobile black boxes - where such protection should actually be prohibited.

HK

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.

HK

Chairman Vancise on the Courts and Copyright Policy in Canada

(Copyright Board of Canada)

The Chairman of the Copyright Board, Justice William Vancise, gave what has become his traditional annual speech to the Intellectual Property Instate of Canada's summer course on copyright held at McGill University on August 11, 2009. It has now been made available online here.

He had some interesting things to say about what he believes should be addressed in the next copyright bill:

First, we have to recognize that sometimes a strange brew of copyright, ubiquitous technology and traffic control creates real privacy issues. Copyright should not be the means by which control is exercised in the private sphere. Copyright should therefore continue to focus on professionals and on the public sphere.

Second, we will have to recognize market failures where they exist. Where they do, tough choices will have to be made. In some cases, the law will have to allow uses for free and copyright owners will have to live with it. In others, it will be possible to monetize copyright uses either voluntarily or through compulsory regimes. To do so, it may become necessary to impose liability on some participants in the chain of copyright consumption who currently enjoy immunity: just as it was possible to make the case that blank CD manufacturers should pay a levy for the copies of music made by those who use their CDs, it should be possible to make the case that Internet service providers should pay a levy for their clients’ use of copyrighted works.

Third, parliament will have to be consistent in the choices it makes. It may be politically expedient to monetize the use of music on the Internet but not to monetize the use of movies. To do one without the other makes no sense. It also makes no sense to impose a private copying levy on blank CDs but not on iPods: either you impose a levy on both, or you remove it from both. The removal of both would potentially mean the end of the private copying regime. It seems to me that only if parliament shows such consistency, will it be able to convince consumers and others that the law makes some sense.

He also had frankly unusual and unusually frank comments about the Supreme Court of Canada and Federal Court of Appeal. On the former, he says:

The Supreme Court is “doing” more copyright law than Parliament. One may ask: is this the Court’s domain? Fair minded persons may disagree on this. Professor Daniel Gervais, for one, argues that in effect, things are moving so fast in the copyright world that absent parliamentary action, the court feels it necessary to fill in the gaps. I might add, this is not unusual. Courts frequently move to fill vacuums when the legislators fail to act. Two notable examples are gay rights under Human Rights legislation and abortion in the field of criminal law.

On the Federal Court of Appeal, which reviews the Copyright Board, he says:

The Supreme Court is not the only court attempting to fill perceived gaps in the Copyright Act. The Federal Court of Appeal has attempted on at least two occasions to reconcile the wording of the Act with the contemporary reality (means of consuming protected works or objects of copyright).

In 2004, the Court ruled the Board was wrong to conclude that the permanently embedded or non-removable memory, incorporated into a digital audio recorder or the device itself, was “an audio recording medium ordinarily used by individuals to copy music”.

In 2007, CPCC tried again and the Board was asked to determine whether the recorder itself was a recording medium as defined in the Act. It said yes in a long and well reasoned decision. The Federal Court of Appeal, once again on judicial review, overturned the Board. This time, the Court in six turgid paragraphs found its decision of 2004 dealt with the matter and was binding on the Board. I still wonder how the Federal Court of Appeal came to that conclusion when the question of whether the device itself was subject to a levy had not even been an issue in the previous decision and the comments of Noel J.A. were obiter and contained in what can only be called a “throw away line.” A throw away line that has had extreme consequences, not the least of which is at least 10's of millions of dollars in royalties that have not been paid to authors, composers and performers and threatens to destroy the private copy regime.

(Full disclosure - I argued successfully against the Board’s view in both of these instances at the FCA).

I highly recommend reading the entire paper. Chairman Vancise also provides very brief summations of what he sees as the essential holdings of several recent Copyright Board decisions. It is unusual for a Canadian judge or tribunal Chair to be this explicit in stating his or her views on specific cases and policy issues. The Copyright Board, which he chairs, has great oversight power over almost half a billion dollars per annum worth of copyright tariff payments in Canada. Therefore, his views require attention from everyone interested in copyright law in Canada.

HK

How to Search Canada's Copyright Consultation Database

The Canadian Coalition for Electronic Rights has done what the Government of Canada and Nick Nanos have, for whatever reason, not done.

It has provided us with a search engine for the submissions that really works!

And it works better and easier than Google's advanced search.

And even more features are on the way.

Now all we need are the missing hundreds (maybe thousands?) of submissions.

Bravo, CCER!

HK

The Proceeds of Canada's Blank Media Levy

Here's some interesting data backed up by the new Savethelevy Website and confirmed on the BNN interview with David Basskin and myself last week here.

We have had blank media levies in Canada for almost ten years. The first tariff was imposed on December 18, 1999.

In that time, CPCC (the levy collective) proudly claims that:

Since then, more than $150 million has been paid to songwriters, composers, recording artists and other rights holders for the copying of their music. This money has been received by over 97,000 rights holders, most of whom would not be able to continue their careers without this revenue.

That's less than $1,600 over ten years or an average of less than $160 a year for each of these rights holders, "most of whom" would supposedly "not be able to continue their careers without this revenue.”

Anyone who knows anything about the music industry will know that most rights holders will earn less than that amount and a few will earn a great deal more. The ones earning a lot more won't need it. And those earning the average $160 a year or less won't be quitting their day jobs anytime soon to “continue their careers” in the music business as a result of this levy.

Moreover, since the figure of 97,000 "right holders" presumably includes publishers and record companies that could receive very substantial payments, the payout to individual songwriters, composers and recording artists is probably a whole lot less than $160 a year on average. That's less than about half of the cost of pint of beer a week at typical Canadian pub. Hardly an amount that will sustain a career.

So who has benefited? About $22 million has gone to the costs of pursuing Copyright Board tariffs (lawyers, consultants, surveys, etc.), collection and enforcement (e.g. lawyers and auditors), and other causes such as “communications and government relations - $1,272,000." And that's only to the end of 2007. See CPCC's own numbers here.

The CPCC's days are now numbered because its only real source of revenue is from the levy on blank CDs. When is that last time most people bought any of those? They are rapidly going the way of the floppy disc. So - the CPCC needs a new source of levy money and has now been turned down twice by the Federal Court of Appeal in its attempt to levy iPods and similar devices because the current legislation doesn't apply to digital audio recorders.

While it's hard to see how this levy could have been much of an incentive to most of the musicians who have seen a piece of it, it's not hard to see where the real incentive lies. No doubt there is a great incentive for those who work for the CPCC as as lawyers, consultants, employees, lobbyists and others to try to get the Copyright Act amended so as to keep the levy alive by extending its reach to iPods, cell phones, and beyond.

HK

PS - this is getting picked up here and here.

Copyright Consultation in the Peterborough Pasture

Yesterday, I attended the last scheduled Round Table of the 2009 summer Canadian Coypright Consultations. It was held at the Royal Canadian Legion Hall in Peterborough, Ontario. This was presumably the “pasture” to which Minister Clement referred. I did manage to find it with my GPS.

First, the good news. It was very ably chaired by Dean Del Mastro, who is the MP from Peterborough, and the Parliamentary Secretary to Minister of Canadian Heritage James Moore and a member of the Heritage Committee. Nicole Frenette, Drew Olsen, Tanya Peatt from Canadian Heritage and other officials were also present.

Mr. Del Mastro was very well prepared and very skillful and diplomatic in his moderation. And, indeed, the speakers were very well balanced. There were reps from the library, ISP, telco, museum, artist management (for some very well known Canadian music stars), fine arts, converged media, photography, First Nations, etc. communities. I didn’t get all the names, but the transcript will be out in a couple of days.

The discussion was civilized but quite lively. Everyone got a chance to say what they wanted to say. Mr. Del Mastro had some very good questions.

Indeed, he put me on the spot by suggesting that some would find that my remarks (posted here) reflected “non-starter” positions and would even question whether these positions are consistent with the WIPO treaties. I was naturally astonished that anyone would have found my quite reasonable suggestion of six ways to simplify and expedite Canadian copyright revision and WIPO ratification to be a “non-starter”, but in these days where an AF of M spokesman finds Charlie Angus’ quest for “balanced” copyright to be “disgusting”, I suppose that nothing should surprise me. I assured Mr. Del Mastro that these positions were not only restrained but WIPO compliant. And that less controversial stakeholders than me have taken similar positions, especially on circumvention and flexible fair dealing. Indeed, on format shifting, it seems that even the RIAA and CRIA both agree with me.

Anyway, a good job on the part of Mr. Del Mastro and PCH officials. A good day generally. And no security guards!

My only criticism and the only “bad news”? Simply that, at the Royal Canadian Legion Hall. there was no beer. ;-) Beer is a part of what makes Royal Canadian Legion halls legendary. Even afterwards, the officials were resolute in their refusal to open the bar. There must be some Treasury Board rule or other bureaucratic barrier against open bars at official copyright consultations. Ironically, my long since defunct musical career started with my first public performance as a clarinetist at a Royal Canadian Legion Hall in Woodstock, Ontario at the tender age of about ten. Of course, I didn’t get any beer then, either. One of these days, I’ll get to have a free beer at a Royal Canadian Legion Hall. Now, at least, I’m old enough.


HK

Six Ways to Simplify Canadian Copyright Revision and WIPO Ratification

Here is the gist of my presentation yesterday at the September 1, 2009 Peterborough Round Table event hosted by Dean Del Mastro, M.P. I will shortly post a comment about this very positive event.
*******************

September 1, 2009
Howard Knopf
Roundtable Presentation Peterborough, Ontario
(check against delivery)

I am Howard Knopf. I've been a copyright lawyer for almost 30 years. I've been active in Government, in academia, at WIPO, and involved in some of the most interesting and important recent copyright cases at all levels, including in the Supreme Courts of both Canada and the USA. Although I am the Chairman of the CBA Copyright Policy Committee, I am not here today in that capacity or on behalf of any of my clients, which include both owners and users of copyright and who range from the very largest of corporations to the most modest of individuals. I'm here today only because I care about copyright law and I care about Canada.

In order to succeed in this revision effort, we need above all to simplify. Here are a half dozen specific positive things we can do:

1. The fair dealing provisions should be simplified by making them clearly an inclusive and illustrative list and not exhaustive. This can be done very simply by including words such as "such as" and words such as "teaching (including multiple copies for classroom use)" as we see in the US law. We also need an exception for "satire and parody", which our courts, unlike the US Supreme Court, have denied us. This simplified approach would also eliminate the need for the pages upon pages of complex, unnecessary, and even harmful particular exceptions that certain parts of the educational community believe would actually be helpful - despite the much more helpful approach of the Supreme Court of Canada in the landmark CCH case in 2004. Such an approach would also take care of most of the concerns of museums, archives and libraries.

2. The levy provisions in the current law should be simplified by their elimination. They are an obsolete relic from the analog era and a continental European socialistic collective approach that has been rejected in the USA, UK and Australia. By keeping the levies, and worse still by adding a so-called “iPod tax", we will greatly hinder WIPO ratification, because the national treatment principle would require that Canada's levy liability will literally be doubled at a possible cost of hundreds of millions a year. The levy scheme is wholly contained in Part VIII of the Copyright Act. Snip and it's gone. It's really that simple. And the door will then be open for WIPO ratification.

3. Remedies should be simplified so that the punishment fits the crime. Statutory minimum damages should be simply eliminated other than in circumstances where there is clearly provable commercial scale and "for profit" activity involved. Canada is not a place where it should even be theoretically possible to have such an outcome as the two million dollar judgment against a single mother for downloading 24 songs, as we saw a few weeks ago in Minnesota. The Canadian recording industry failed in a similar effort a few years ago. Now it wants the law changed to make it easier for them the next time. Don't give them the opportunity - because they will surely use it. And don’t even think about “three strikes” or the so-called “graduated response” approach. It would be a policy and political disaster. You don’t take away the family car because one of the kids gets caught speeding.

4. The circumvention debate should be simplified by making circumvention clearly legal for any legal purpose, such as fair dealing, time, space and format shifting, bypassing regional coding, access for the blind or other perceptually handicapped persons, archiving for backup purposes and, of course, repairing a computer damaged by malware from copyright owners seeking to impose DRM and TPM. Any product that is capable of substantial non-infringing use should be legal. Otherwise, we will never again see innovations such as photocopiers, VCRs, personal computers, iPods, etc. To simplify the DRM/TPM debate, we need protection from DRM and TPM technology and not for it.

5. We need to clarify and simplify the complex question of whether copyright law can be used to control or even prevent free trade in legitimately made articles sourced from abroad where the copyright involves only the packaging or labelling other merely incidental elements of the product. Copyright law was never intended to restrict free trade and competition in products such as chocolate bars or wrist watches.

6. Above all, we need to simplify by ensuring technological neutrality and clear, general language. Our 1921 legislation, based on the classic 1911 British model, comprises the core of our current legislation. It's still pretty good. It was short, elegant and largely technologically neutral - even at a time of great technological ferment a century ago.

Canada has a choice now - which is to have one of the best new copyright laws anywhere or to have one of the worst, such as Bill C-61 would have given us. We don't need another 50 page "Made worse in Canada" incomprehensible C-61 type rewrite of the failed US DMCA approach. We should emulate the best of the US and other statutes, not the worst. My half dozen suggestions could be drafted in a matter of days, not weeks or months. If the Bill is more than half a dozen pages long, we will already be in big trouble. We already have one of the strongest and best copyright laws in the world. Let’s make it even better.

Thank you for your attention.

Howard Knopf

Lawyers/Lobbyists Criticize Copyright Consultations

Here is a a good sign that indicates that Ministers Clement and Moore are doing the right thing with the copyright consultation process. This is found in an article by Robert Todd in in today's Law Times.

Mr. Todd quotes two of Canada's best known copyright lawyers, who are or have recently been actively registered lobbyists for major US entertainment industry interests, namely Glen Bloom and Barry Sookman, who have come out criticizing the consultations as unnecessary. They are urging the government to get on with:

• WIPO ratification (HK suggested translation = DMCA),
  
• ISP liability (HK suggested translation = notice and takedown),
  
• "re-calibrate the balance of copyright, so that rights holders can develop economic models that create businesses out of cultural products" (HK suggested translation = maxed out DRM +TPM and anti-circumvention),
• deal with "a significant amount of unauthorized file sharing, and we need to modernize our laws to help re-calibrate the balance of copyright" (HK suggested translation = three strikes and/or law suits against individuals).

There is the usual whining about the US "Special 301 Report."

In contrast, and with a breath of fresh air, Colleen Spring Zimmerman, who has not been a registered lobbyist, calls for a look at the Copyright Board. She:

• "suggests the government’s top priorities should including tinkering with the Copyright Board of Canada, which plays a key role in setting tariffs, for example. She says the jurisdiction of the board should be reconsidered, while a broader “revamping” should also be investigated."

I agree with Ms. Zimmerman, and have written about this at some length. Things do seem to be taking even longer, and getting even more expensive for both owners and users at the Copyright Board. The trouble is that the collectives can pay for all of this with their members' money and the users invariably have many other things to worry about apart from Copyright Board hearings. This is an important issue that involves about half a billion dollars a year in economic activity.

HK

David Akin on Satire and Parody

As copyright law increasingly appears more and more in main stream media reporting, one of Canada's leading journalists, David Akin, deals with satire and parody and links to Michael Geist and myself in a very good blog that relates to freedom of political speech.

This is in the context of the cross Canada copyright consultations.

HK

Access Copyright's Grass Roots (="Sabotage"?) Campaign

Cory Doctorow @ Boing Boing - a very successful expat Canadian author - has a good blog today about how:

Access Copyright, the Canadian author's collecting society (a group that collects money from libraries for book lending and gives it to authors) is using its members' money to sabotage an enormously popular consultation on the future of Canadian copyright.

(emphasis added)

(A small point of correction, Cory. AC is guilty of many things - but administration of the the Public Lending Right - which is actually a good thing because it is designed to help Canadians - isn't one them)

He concludes:

As a Canadian author, Access Copyright is supposed to represent my interests in the Canadian copyright debate. Instead, they are setting out to undermine the first glimmer of sanity in Canadian copyright policy in three governments -- and using my money to do it. For shame.

BTW - here's the whole of AC's missive to its members. And - no - I didn't ask for permission to link to this, as AC once famously insisted was necessary in the Captain Copyright fiasco. Its policy at the time was:

Permission is expressly granted to any person who wishes to place a link in his or her own website to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of, Access Copyright. In the event we contact you and request the link be removed, you agree to comply with that request promptly. If you link to or otherwise include www.captaincopyright.ca on your website, please let us know and create any link to our home page only.
(emphasis added)

BTW, despite the name of this blog, Excess Copyright, this blog is not associated in any way with Access Copyright. Old time followers of Access Copyright might remember when it was called CanCopy. It changed its name several years ago to Access Copyright, perhaps because of too many references to Can'tCopy. I wonder what its next name will be.

Other recent Access excesses are discussed here (attempt to get $24 p.a. for each FTE provincial civil servant) and here ($5.16 for each kid in K-12).

Moreover, AC has great difficulty distributing to actual authors the tens of millions a year is so successfully collects. No problem, however, in paying for staff, consultants, lawyers, etc. About 17% of its 2008 revenues of about $37 million went to operating expenses.

And as I said earlier:

Meanwhile, AC has budgeted an astonishing $915,000 for “Copyright Board applications” for 2009 - when there are no AC hearings scheduled. You can bet that this is going straight into the Mother of all cases aimed at post secondary copying. Will anyone step up to the plate to fight this really hard with a truly adversarial approach aimed at saving the taxpayers tens of millions of dollars? Based upon what we have seen in the past, it's very unlikely.

It also may be going into setting the stage for fighting for the $24 per provincial government employee tariff that will take at least $12 million out of the Canadian tax payers pockets for no good reason, unless cut down to size - which is probably at or near zero. Apart from copying for "research" purposes as interpreted by the Supreme Court of Canada and the copying of internally generated documents, it's difficult to conceive of what other copying activity exists inside government.

HK

The Canadian A-list Copyright Consultations

The Canadian copyright consultations, announced only on July 10, 2009, are apparently turning into a hasty A-list, B-list and everyone else effort. They are starting tomorrow in Vancouver and apparently working their way east, with selected participants required to meet these events en route. Apparently, these consultations, at least the town halls, will somehow bypass Ottawa, which is rather odd I must say. Last I heard, Ottawa was the nation's capital.

Even those on the A-list round tables, set to begin tomorrow, Monday July 20, 2009, don't necessarily even know who else will be in the room.

Those on the B-list town hall meeting invitation list don't even know where or when they will be allowed their 15 seconds or so of fame.

All of this is happening in the summer time, when folks are hard to reach and mandates and instructions are even harder to get, except of course for the old pro trade associations whose sole or main business is copyright lobbying.

I'm sure that officials and Minsters mean well by this. But this is not the ideal way to consult Canadians on such important legislation. Especially, if as reported by Althia Raj:

"The government hopes to pass legislation before Christmas."

(emphasis added).

To "pass" legislation means to get it through the House, Senate and committee hearings in both places, not to mention proclamation in force. That would normally take an absolute minimum of at least six to eight months following the introduction of a bill. That's if the hearings are open, balanced and for real. And that's a high speed rocket docket agenda.

Remember that copyright laws cannot easily be undone if we get it wrong, because increased copyright rights are effectively a one way ratchet. Billions of dollars worth of so-called "rights" (and obligations) become vested, at least in the minds of their "owners", when such legislation becomes effective. It's very easy to increase copyright rights. It's much harder to cut them back to size if a mistake is made. Recall Disney's Sorcerer's Apprentice, which is all the more ironic because the Disney empire is perhaps the most consummate of all copyright lobbyists, having achieved the so-called "Mickey Mouse Protection Act" term extension legislation in the USA in 1998.

(Let's see how long this link lasts!)

If the consultations end on September 13, 2009 and the Government spends the necessary time to analyze the expected several dozen A-list, and the inevitable several hundred or thousand submissions by everyone else, it will be a miracle if the bill is even introduced by Christmas.

Passage before the next election would seem improbable as things now appear. That's assuming an election call by next summer, as everyone seems to assume.

However, as I've indicate earlier, taking out the bad parts of Bill C-61 and adding a few constructive key words would be quite easy. Then, we could could conceivably have a good bill.

So, hope springs eternal that a good bill could be passed, or that a bad bill will not be passed, by this government before the next election.

Either way, Canada wins.

HK

Let the Consultations Begin

Below is the invitation that some parties received on Friday, July 11, 2009 for the forthcoming summer consultations on copyright reform.

While I am optimistic that officials and Ministers want to do the right thing, I have serious concerns about whether the timing and the process that are underway here can fulfill the Ministers stated intentions It is now mid July and this consultation has just been announced to a limited number of interested parties and will end on September 13th, 2009.

Some parties will be invited to roundtables. Who, what, when, where, why some parties and not others and how this will unfold are still unknown.

Others clearly have not been and will not be so invited. Those not invited will have to be content with making submissions through an online process or through the “webcast town-hall” - concerning which more information will presumably be forthcoming on July 20, 2009.

The good news is that “all consultation activities, whether presented online, during a roundtable, or via the webcast town-hall, will be made accessible to the public”, as I recently suggested.

Note carefully the wording:

You are cordially invited to attend a roundtable discussion. Further information regarding the particular event to which you are being invited, including the city, date, time of day and address of the venue, will be provided to you very soon. Please note that this invitation is specific to you and that substitutions are not permitted.

Emphasis added.

Whether or not many parties can show up for the round tables well prepared at the time and place designated by the government in the middle of the summer on short notice is will be interesting. Of course, this will be no problem for the major dedicated special interest lobby groups who have spent millions and are prepared to spend millions more and have lots of people and lobbyists and lawyers and lawyer/lobbyists and lobbyist/lawyers and GR and PR people on retainer to deal with this process. It’s an important investment for them and they hope it will pay off in the billions.

This could be a big problem,howver, for the rest of the stakeholders who are not full-time copyright lobbyists or copyright focussed special interest trade associations or collectives and who might have thought that summertime was summertime.

This suggests that the Government is in a very big hurry to introduce and pass a bill before the next election. If it’s a good bill, that could be a good thing. If it is going to pass, it had better be a lot better than Bill C-61. The good news is that Bill C-61 could be drastically improved simply by removing certain special interest driven chunks from it - which is not a lot of long and hard drafting work. And by introducing a few choice words here and there such as “such as” and “satire and parodoy” in the fair dealing provisions, for example. This would also not need a lot of long and hard drafting work.

There is unsettling precedent for copyright legislation being the last and rushed legislative act before the lights of Parliament are turned off prior to an election in Canada. Let’s hope that this consultation and the drafting and committee process for the presumably resulting bill will somehow provide enough input for the Government to come up with a Bill that will be in the best interests of Canadian interests and not special interests.

Here's the announcement that some parties have received:

Please see attachment.

S.V.P voir la pièce-jointe

(See attached file: Roundtables Invitation English.doc)(See attached file:
Roundtables Invitation French.doc)

Alexandra Hutton
Office of the Honourable James Moore / Cabinet du l'honorable James Moore
Minister of Canadian Heritage and Official Languages / Ministre du
Patrimoine Canadien et des Langues Officielles
Tel: 819-997-7788
Fax / Télécopieur: 819-994-5975
Email / Courriel: alexandra.hutton@pch.gc.ca
SENT ON BEHALF OF MINISTERS MOORE AND CLEMENT.

------
Invitation - Roundtable

On July 20th, 2009, the Honourable Tony Clement, Minister of Industry and the Honourable James Moore, Minister of Canadian Heritage and Official Languages will launch nation-wide consultations to solicit Canadians’ opinions on the important issue of copyright reform.

The Government of Canada has committed to modernizing Canada’s copyright laws, to provide meaningful rights for creators and promote the use of digital technology by its citizens. We are consulting to ensure that all perspectives are taken into account in an open and transparent process, to help deliver new legislation in the Fall that is forward-looking, reflects Canadian values, and strengthens Canada’s ability to compete in the global digital economy

The consultations will run between July 20th and September 13th, 2009.

Over this period, the Ministers will hold a number of roundtable discussions on copyright reform at various locations across the country.

You are cordially invited to attend a roundtable discussion. Further information regarding the particular event to which you are being invited, including the city, date, time of day and address of the venue, will be provided to you very soon. Please note that this invitation is specific to you and that substitutions are not permitted.

Please note, as well, that the roundtable will be recorded, and subsequently posted online in both official languages.

In addition to attending the roundtable discussion, we encourage you to participate in the online consultation, which will be open to all Canadians starting July 20th, 2009. You may join in on the online discussion forum or share your views with us more formally by posting a submission. Details will follow soon.

We want to ensure that all Canadians have the opportunity to join in the discussion of the different ideas and views raised over the course of the consultations – for this reason, all consultation activities, whether presented online, during a roundtable, or via the webcast town-hall, will be made accessible to the public.

To RSVP for the roundtable, and for more information, please contact Ms. Kerala Levitt by email at Kerala.levitt@pch.gc.ca.

HK

Canadian Copyright Consultations - Summer of 2009? You Betcha!

A Town Hall Meeting (The Guardian)

No - she didn't resign to devote herself to copyright reform in Canada.

But, speaking of town hall meetings, rumours are rife about a summer consultation on Canadian copyright law.Here's a recent Billboard report, by Robert Thompson, who looks at the issue from the standpoint of the record industry, as he usually does. (How I miss Larry Leblanc, who was tended to look at life from a broader and much better and more balanced journalistic perspective).

Any announcement had best come soon and I sense that it will. We're now well into July. There will be difficult logistical questions as to timing, format, etc. Live town halls or online, or both? Not to mention that it's already well into summer time, when the livin' should be easy.

It's hard to see how any live town hall meetings or other live events can take place over the summer at this stage, especially cross country.

In any event, let's hope that the Government avoids one obvious trap that some will likely advocate for, namely that an interested person or organization should be able to make a confidential submission to this process.

If there is to be an online consultation exercise, all bona fide submissions in either official language that are on point and not profane should be posted in a transparent and timely manner, right after whatever closing date is established. There is no reason why any such submissions should be sheltered by claims to confidentiality.

HK

Minister Moore and the PVR

Minister of Canadian Heritage, James Moore, is one of the two federal ministers primarily responsible for copyright revision.

He is 32 years old and reportedly very tech savvy. In fact, he uses a PVR and an iPod.

Would he be able survive litigation under the current law?

Michael Geist doesn't think so.

“Strictly speaking, almost anything he’d be using PVR for would be illegal,” says University of Ottawa’s copyright expert Michael Geist. “Any person who has been actively using a PVR for years, there’s no doubt about it, they’re using it in such a way that the law doesn’t permit.”

See the story here.

The story is a bit more iffy about what would happen under Bill C-61, if it is ever enacted as it was. But we all know that the bill basically left the actual time shifting habits of most Canadians illegal and took away with the anti-circumvention hand the supposed freedoms it granted with its time shifting gesture on the other hand.

HK