Nervous about NAFTA & the Cancun Summit

Some of us remember when Brian Mulroney and Ronald Reagan sang “When Irish Eyes are Smiling” in 1985. Mulroney offered up compulsory licensing of pharmaceuticals and copyright retransmission royalties on a platinum platter as a prelude to the FTA negotiations. After that, there wasn’t much left for Canada to negotiate with, and it wasn’t surprising that the actual FTA was largely silent on IP. We had just given away several hundred million dollars a year out of the Canadian economy as an aperitif to the negotiations, so there wasn’t much need for the Americans to get more from us just then.

Any bureaucrat who thought this was unwise was pushed aside. It didn’t matter. There were lots of ambitious and supportive ones ready to please. This period was the beginning of the end of the expert bureaucracy. Lobbyists and Minister’s Offices were making policy. The bureaucrats were there only to implement it and make it look good.

There was a great joke, which found its way into the literature, that Canada’s final negotiating position on IP was “We’ll give you everything you want and 25% more and that’s our final offer. Take it or leave it. God dammit.” If only it were just a joke.

The Americans took it. And they made up for lost time and the lack of IP specifics in the FTA in no time with NAFTA and TRIPS, and with the many FTA’s since then and, of course, the 1996 WIPO Treaties.

Yes, Canada played a key role in all of this. If and when the full and frank history of all of this is written, I’ve very little doubt that the Mulroney Government’s apparent desire to be part of the QUAD (US, EU, Japan and Canada) and curry favour with the Americans at a very high cost were key catalytic factors in the exponential growth of the maximalist IP movement internationally and its alleged interrelationship with free trade. And to give equal credit, far from tearing up NAFTA as promised, the Liberals helped to build on it.

And indeed, free trade is a great thing for Canada and should be pursued. To the extent that they were pursuing true free trade, both Mulroney and Chrétien were doing the right thing.

But in reality, there is real free trade and then there is the American vision of free trade. Strong IP protection and free trade in the American image comprise, in reality, a cruel oxymoron.

So, it is with much trepidation that I await the outcome of the Cancun summit underway between Bush, Harper and Fox. It seems like NAFTA and déja vu all over again.

And now Mexico has really gone off the deep end with a life plus 100 year copyright term. Why Mexico would do so defies reason. Did they think of it all by themselves as an incentive to nurture, protect and prosper from their mariachi music? Or could it be that somebody gave them this idea, perhaps for some unknown consideration?

And suppose that Bush says to Harper something like, “Oh yeah, while we’re talkin’ about harmonizin’ softwood lumber, Steve, let’s all sing from the same hymn book on that other NAFTA stuff, ya know, like IP. And you all Canadians and us Americans gotta do what our friends down in Mexico did because they can’t just go backwards. Ya know, like England made nice with the Germans by goin’ to life plus 70 in 1996. Yup - life plus a 100, Steve. A nice round number. Easy to remember. Oh yeah, and while you’re at it, that WIPO stuff and our DMCA are kinda swell too. Try em. You’ll really like em. Real good for law and order, cause it stops them pirates from stealin’ other good folks’ property. All that P2P stuff just encourages porn and terrorism anyway. And then, when you’re done with this IP stuff, well maybe then we can talk some more about lumber. We always like talkin’ about lumber with Canadians, Steve. Any time. You and me are gonna be good buddies, just like me and Tony. Yep. We’ll sure talk about lumber. You’re gonna do a heck of a job.”

Prime Minister Stephen Harper is down there now with Mulroney’s former finance minister and FTA champion, now Canadian Ambassador to the US of A, Michael Wilson. Hopefully Mr. Harper’s sophistication in economics and Mr. Wilson’s hands on FTA experience and lessons learned will equip them to resist such a scenario. And hopefully, I’m just wrong about the scenario even being there.

Please Messrs. Harper and Wilson - let me be wrong about the possible American agenda in Cancun and beyond. Just this once - really and irrevocably wrong.

HPK

DMCA - Right Minded Wisdom

The CATO Institute is a rather right wing and rather prestigious Washington "think tank" that has occasionally published and done some interesting things in IP.

It's quite interesting how the right wing libertarian crowd is beginning to realize that overly strong IP protection is nothing but excessive state intervention and should be looked at much more carefully.

Today, they've published a brilliant, lucid and informative analysis of why the DMCA is a bad thing and is "circumventing competition". It's by Timothy Lee and is entitled:

Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act

It is on the CATO Website.

Canadian policy makers should take note - let us not repeat this blatant folly of our American friends on this front.

Here's the abstract

Executive Summary

The courts have a proven track record of fashioning balanced remedies for the copyright challenges created by new technologies. But when Congress passed the Digital Millennium Copyright Act in 1998, it cut the courts out of this role and instead banned any devices that "circumvent" digital rights management (DRM) technologies, which control access to copyrighted content.

The result has been a legal regime that reduces options and competition in how consumers enjoy media and entertainment. Today, the copyright industry is exerting increasing control over playback devices, cable media offerings, and even Internet streaming. Some firms have used the DMCA to thwart competition by preventing research and reverse engineering. Others have brought the weight of criminal sanctions to bear against critics, competitors, and researchers.

The DMCA is anti-competitive. It gives copyright holders—and the technology companies that distribute their content—the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates.

Fortunately, repeal of the DMCA would not lead to intellectual property anarchy. Prior to the DMCA's enactment, the courts had already been developing a body of law that strikes a sensible balance between innovation and the protection of intellectual property. That body of law protected competition, consumer choice, and the important principle of fair use without sacrificing the rights of copyright holders. And because it focused on the actions of people rather than on the design of technologies, it gave the courts the flexibility they needed to adapt to rapid technological change.

CRIA's Statistics & WIPO Ratification

"There are three kinds of lies: lies, damned lies, and statistics."
(Attributed to Benjamin Disraeli and Mark Twain)

So, how should we classify CRIA’s Statistics?

According to CRIA’s recent survey conducted by POLLARA in February and just filed with the CRTC (thanks Michael, for exposing these links and for your eternal vigilance), 46% of Canadians answered "international" to the question:

I would now like to ask you a few questions regarding the protection of artists’ works in Canada, or what is usually referred to as copyright. Copyright protects an artist from unauthorized copying and sale of their works. Some people have said that the current copyright laws are sufficient to protect artists, and others suggest that Canadian laws should be up to international standards that have been drafted by the WIPO, the world organization responsible for copyright. Generally, do you think Canadian copyright laws should be up to international standards or is the present law sufficient?
(emphasis added)

46% said "up to international standards"
35% said the present law is sufficient
20% said they didn’t know.

This was the result of a POLLARA survey of a random sample 1229 respondents interviewed between February 17 and 22. 2006 .

Funny how on December 28, 2005, less than two months earlier, Graham Henderson, Prez of CRIA issued a press release based on a previous POLLARA survey done from December 18th to December 20th, 2005, among a random sample of 1204 Canadians aged 18 and over.

According to a Pollara survey conducted during Canada's recent federal election, the vast majority of Canadians want copyright reform. The study found that 91 percent of Canadians want the work of musicians, artists, composers, authors and others to be protected by copyright to ensure they get paid for copies of their work, while 74 percent believe the country's laws should be made to conform to international standards and treaties on copyright. (Nine percent disagree, while 17 percent are undecided).
(emphasis added)

We don’t know the precise question that was put to the respondents in the December survey. But it seems to be directed at the same point as the question in the February survey - namely supposed support for Canadian conformity with "international standards", which naturally begs the question of whether we already exceed such standardsin in key respects, which I have raised before. However, back to the current point.

Note first the incontrovertibly embarrassing anomaly of a 28% drop (74% - 46%) in support for "international standards" in less than two months. That's about as bad as Bush and Cheney's drops in approval ratings - except it's much quicker. Or maybe it means that the data is simply unreliable - and what does that say about other CRIA data?

The real issue is how anyone is supposed to take such survey data seriously to begin with. Is it likely or, frankly, even possible that any statistically significant percentage of the randomly selected 1,229 respondents interviewed between February 17 and 22, 2006 have every heard of WIPO? Of those that might have heard of WIPO, is it possible that any of them would have ever read these "international standards" drafted by WIPO? Presumably the reference is to the 1996 WIPO internet treaties but, then, who are we to ask? Or would they have even the faintest clue about what these "international standards" refer to? This is a bit like asking whether Canadian society should show appreciation and respect for Mothers and Grandmothers in a manner endorsed by a coalition of high level religious leaders. Don't expect a lot of naysayers to such a question. In fact, the fairly large number of naysayers in this survey - given the suggestive questions - should raise lots of alarm bells, assuming anyone does take these surveys seriously.

There are other obvious quality issues with this survey data, such as the inherent bias - and overly simplistic inaccuracy - in suggesting that WIPO is "the world organization responsible for copyright." Tell that to the WTO, or the USTR, the Bush trade representatives that have forced (oops, "negotiated") numerous bilateral WIPO Plus "agreements" with numerous lesser powers.

I’d even be surprised if more than 5% of the members of the Intellectual Property Institute of Canada ("IPIC") have ever actually read those WIPO treaties, much less thought about them in detail. Oddly enough, there are about 1,300 members of IPIC, which is the main professional body for IP lawyers and trade-mark and patent agents in Canada. That’s coincidently about the same size as POLLARA’s sample - but it’s as far as you can get from a random sample.

And I would seriously doubt that there would be much consensus amongst actual copyright lawyers who have actually carefully studied these treaties as to whether Canada actually does comply with certain key provisions already, much less whether Canada should comply with these "international standards" - especially in the extreme implementation version espoused by CRIA.

Anyway, there are more gems in CRIA’s data and CRIA’s own spin on CRIA’s data. Michael has outlined some. Stay tuned for more.

And thank you, CRTC, for helping CRIA to be so transparent. Perhaps the Copyright Board should take note.

BTW, you should read CRIA’s submission to the CRTC. What does CRIA want to do in the name of Canadian artists? They want to weaken Canadian content requirements by moving to a "Smart" 35% CanCon regime. See page 29 of their submission to the CRTC. We hope that the powers that be will be shocked, shocked that the Canadian Recording Industry of America, oops, I meant the Canadian Recording Industry Association, would suggest such a thing. And "smart" enough to see through it.

Shocked? After all of those lovely, reliable, consistent, relevant and clearly incontrovertible statistics?

"Considered accurate to within +/- 2.8%, nineteen times out of twenty."

Shocked, indeed. We hope. "Nineteen times out of twenty".

HPK

Excessive TPM & DRM - forfeiture as an antidote?

A possible antidote to excessively intrusive and even harmful TPMs and DRMs (e.g. Sony’s Rootkit) and to excessively protective legislation for such measures in the name of implementing the WIPO treaties might be quite simple.

There could be a provision inserted in the Canadian Copyright Act that would provide a forfeiture of copyright for those who inflict damage via malware that goes farther than reasonably necessary to protect copyright. So, if a record producer inflicts another Rootkit fiasco upon Canadians, copyright in Canada in the sound recording would be forfeited. Of course, this shouldn’t affect the copyright in the underlying musical compositions or performances, unless those creators are complicit.

There can be little doubt that such a provision would be intra vires the Federal Government and its copyright powers. If CRIA et all are begging for Copyright Act protection for TPM and DRM - it would be hard for them to argue that protection from it is ultra vires the Feds.

Frankly, I must confess that this is not entirely an original idea. I was inspired by none other than Judge Richard Posner of the 7th Circuit in the USA, who is much more favourably disposed to IP owners and much more sceptical of antitrust complaints than most judges or scholars. And speaking of scholars, his accomplishments are legendary and extraordinarily prolific.

Here’s his view of forfeiture, which he posted in a guest appearance on Larry Lessig’s blog in 2004:

What to do about such abuses of copyright? One possibility, which I raised hypothetically in my opinion in WIREdata, pp. 11-12, is to deem copyright overclaiming a form of copyright misuse, which could result in forfeiture of the copyright.

(emphasis added)

This was suggested in the much less egregious context of “systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth”.

In fact, Judge Posner’s logic might suggest that the use of DRMs and TPMs to prevent otherwise lawful exercise of user’s rights should result in copyright forfeiture. Hmm.., Not a bad idea.

The music industry wants access controls that could eliminate the concepts of insubstantial copying, fair dealing, fair use, access to orphan works and ultimately to the public domain itself. These controls could also result in “pay per use” and a regime in which there is no right to make private copies or to shift formats. Regional access controls could become effective tools for anticompetitive price discrimination (they already have done so for DVDs) and – worse still – for censorship.

And if this isn’t bad enough, they want legislative sanction for all of this and to make anyone who dares to get around (i.e. "circumvent”) it an infringer or even a criminal. Scary? You’d better believe it.

HPK

“Fallout" at the Copyright Board?

Two significant players in Canada’s copyright scene have just conspicuously withdrawn in protest from two major Copyright Board hearings. They are Archambault (the Quebec music retailer) and Canoe (an internet portal), which are both part of the giant Quebecor empire. The hearings involved music on the internet. One is the decade old and still inchoate SOCAN Tariff 22 tariff. The other is the CMRRA/SODRAC (CSI) proposed webcasting tariff. Archambault had earlier withdrawn from the CSI proposed online music tariff. Efforts on the part of objectors to somehow consolidate or rationalize these three closely interrelated tariffs have proven fruitless.

In an 8 page letter from their counsel, Me Jean-Philippe Mikus, Archambault and Canoe stated that they had to take:

the least harmful path given the untenable constraints now being imposed on objectors wishing to express their point of view before the Board. Archambault and Canoe are compelled to withdraw because their participation in the Board's proceedings would imperil their key financial information invaluable trade secrets critical technological information strategic information concerning development and marketing plans and projects, and a host of other information in respect of which the utmost secrecy is essential for their survival.

They point out that “…the mere participation in the Board’s hearings is in and of itself a very considerable burden on a number of levels. The mass of information that collectives systematically seek to obtain from objectors brings about exorbitant costs both in terms of collecting the information and then processing it.”

They suggest:

When collective societies holding monopolies or quasi-monopolies are involved in infighting and then formulate grossly exaggerated claims and multiply instances before the Board, including unreasonable requests for disclosure of irrelevant or marginally relevant highly confidential information, some measure of control must be exercised. The Board should be the first line of defense to avoid that exclusive copyrights established by Parliament and concentrated in the hands of collective societies be an instrument of oppression (to paraphrase Lord Justice Lindley in Hanfstaengl v. Empire Palace (1894) 3 Ch. I09). The experience of Archambault and Canoe leave the bitter impression that the Board is failing at this task and that this failure is already causing extremely serious harm to businesses that have had the courage to jump into untested waters. Significant reform is both necessary and urgent to end the abuses that threaten the very foundation of Canadian businesses offering legal alternatives for the use of music on the Internet. At this stage, it appears that such reforms can only originate from the government or Parliament; it is unfortunate to say that our clients no longer hold out any hope that the Board is able or wiling to address these concerns.

They conclude by reserving the right to seek judicial review “on the basis inter alia that they have not been given the right, reasonably exercised, to be heard in these proceedings.”

While none of this is particularly new to those experienced with Board practice, the letter is a potentially very important development. It was copied to the very long list of objectors in both files and to both Ministers responsible for the copyright file. The current Ministers may prove to be more sympathetic to the concerns of objectors than their predecessors, given this Government’s potentially different perspective on regulation and the costs thereof imposed upon business.

The fundamental dilemma is that virtually all objectors have many issues to worry about other than fighting copyright tariffs. And almost all of them balk at the incredibly high costs of pursuing objections, which routinely run into the six figures and can go beyond. Resulting direct financial savings are often hard to quantify since most collectives overreach to an often absurd extent in the initial proposed tariff. For these and many other reasons, the economics of objecting are not alluring to many entities, even though they may be directly affected. And trade associations aren’t always the answer. In fact, the sad demise of the CCTA, after so many years of valiant and competent contributions to Copyright Board and appellate jurisprudence, shows the difficulties faced by even the most sophisticated and substantial of objectors.

The collectives, on the other hand, have usually only one purpose on their mind, which is increasing Copyright Board tariffs and lobbying for the statutory rights that make this possible. Their costs are paid for – not surprisingly - from the Copyright Board tariffs that are paid by objectors. The more the collectives spend, the more they make - and vice versa and so on. This is classic asymmetrical warfare, in which a relatively small single purpose and highly strategic entity can win major victories against a much larger opponent.

As the letter points out, it is very difficult for an objector to play a limited role in a hearing. It is basically all or nothing:

The approach adopted by the Board so far is very much akin to an "all or nothing approach. There is simply no way of participating in the Board' s work if a party wishes to both put forward its point of view usefully before the Board and be concerned about the confidentiality of its business information. Parties are expected to be subjected to a full inquiry by collective societies, in the presence of all their competitors. The issuance of confidentiality orders does not justify such inflexibility.

There have been other withdrawals in the past, including MOVISO (for whom I acted), which was perhaps the largest supplier of ringtones in Canada and the world. It withdrew during the interrogatory phase from a major hearing on SOCAN’s proposed ringtone tariff, where staggering amounts of money and important legal issues were at stake. The Board and the Canadian public lost the benefit of their participation. ADISQ recently withdrew from the CSI Online Music Services Tariff proceedings. ADISQ is a professional association which represents hundreds of independent Quebec undertakings working in various aspects of the record, entertainment and video industries, including record producers, distributors, publishing firms, performers’ managers, entertainment producers, booking agencies, playhouses, video clip production firms, etc.

In another recent development, the Canadian Association of Broadcasters has launched a major judicial review effort following a recent Board decision imposing a large increase in commercial radio tariffs. In so doing, it referred to the Board publicly as “renegade”. In the CAB’s own words, “Because this panel of the Copyright Board acted in such an undisciplined manner, there is now a clear and immediate need for the Government of Canada to rein in this renegade to ensure it complies with its legislated mandate.”

Without commenting on the CAB’s choice of language, it must be noted that the CAB has been dealing with these issues and with the Board and its predecessors from day one in the 1930’s. The CAB is turning 80 this year, and the copyright wars between broadcasters and the predecessor of SOCAN are basically responsible for the formation and much of the evolution of the modern Copyright Board regime in Canada.

The Board has the power to enact (with Governor in Council approval) regulations concerning “the practice and procedure in respect of the Board's hearings”. However, it has never exercised this power. The Board reports to Parliament through the Minister of Industry, who has some apparently broad power to put regulations in place even under the current legislation. Needless to say, the Government can introduce legislative changes to this framework, if required.

It is inevitable that there will be calls to restrain certain practices on the part of certain collectives and their counsel. If the Board currently lacks the legal power or declines to do so, then it is possible that the Government will be called upon by many reputable stakeholders to deal with what has evidently become an unsustainable situation for even very substantial objectors.

There are substantial public interest issues involved here that transcend excessively adversarial trial by attrition. These issues could become an important theme in the forthcoming copyright revision exercise.

HPK

Folie à deux?

It looks like some folks in Australia is are having similar delusions to those of some Canadians - namely that schools should actually pay a copyright collective for using free stuff on the internet. Thanks, Cory, for noting this and for a trenchant comment on the issue as it stands there and in Canada.

What's next? A law prohibiting the sharing of newspapers - or a tariff on newsprint because - horror of horrors - some people actually do share newspapers or recklessly allow used ones to be read by free loading third parties who have no respect for copyright? Or a tariff or prohibition on the sale of used books and CDs? Don't laugh - the latter has been closer than one might wish to think.

Let us only hope that our friends in Oz did not catch this folly from Canada. As to Canada and the educators' tepid and troublesome response to date, I'll have more to say anon but assuredly not anonymously.

HPK

CRIA Spinning on the WIPO Treaties

Get ready for more spin about Canada and the WIPO Treaties as we approach Canada Music Week and the CRIA machine goes into high gear:

A current announcement for a Canada Music Week panel on March 3, 2006 in Toronto contains the following misleading statements:

In 1997 Canada placed its signature on two International treaties designed to update copyright laws in a way that would allow the digital marketplace to flourish. All of Canada's major trading partners joined Canada in signing the Treaty. Almost 9 years later, and unlike those same trading partners, Canada has yet to enact legislation. Canada finds itself an analogue island - increasingly isolated in a digital ocean.

In June of 2006 [sic] the government of Canada finally acted. Legislation was tabled purportedly implemented [sic] the treaties. Expectations ran high among artists and labels. Disappointment was even keener. Bowing to pressure from the anti-copyright lobby, the government drafted legislation that was widely viewed as the weakest protection for copyright in the world. Opponents of copyright reform had erroneously, but successfully, argued that copyright reform in other territories had been a disaster, inhibiting the free flow of ideas, endangering the privacy rights and damaging technological innovation.

(emphasis added)

Reality check:

Canada joined other countries in signing, not vice versa. Signing a treaty is to ratification about the same thing as dating is to marriage. The former doesn’t necessarily lead to the latter.

As to ratification, which is what CRIA wants Canada to do, the truth of the matter can be found at the WIPO website where an up to date list of countries that have actually ratified the WCT and WPPT can be found. Ratification is where the rubber actually hits the road.

The only two countries that can reasonably be regarded as being “Canada’s major trading partners” are the USA and Japan. OK – one can quibble about Mexico, which is so eager to please their neighbour to the north that it has leapt to a life +100 year term of copyright protection. One can only wonder why and how that deal was arranged. Mexico it is part of the NAFTA deal that is the legacy of Reagan + Mulroney.

Even if Mexico can be regarded as a major trading partner due to NAFTA, it’s hardly a major country. Its influence and economic clout outside of NAFTA are quite minor and it has virtually no influence in international copyright circles. The rest of the list ranges from Albania to the United Arab Emirates, in other words the current “coalition of the billing”, all of which are beholden to the USA for various reasons best known to themselves.

The EU is way behind its own schedule and controversy is increasing within on implementation and ratification. In fact, France appears to have taken an aggressive path towards legalizing downloading and file sharing.

As for Canada’s current laws or even the now defunct Bill C-60 being weak, that’s nonsense. Canada provides far greater protection to the music industry in many respects than does the USA. For example:

• Canada’s neighbouring rights regime gives tariff payments for ordinary broadcasts to record companies and performers that are more or less equal to those paid to composers. In the US, there are no such payments.
• Canada provides a much longer period of protection to many American composers and music publishers than does the USA. For example, many of Irving Berlin’s early works will generate payments in Canada until 2039, even though his pre 1923 work fell into the public domain in the USA ages ago
• The USA didn’t provide copyright protection for sound recordings until 1976. Canada has done this since 1924.
• Canada has moral rights for composers and proposed them for performers in Bill C-60. The USA does not provide moral rights for either category – and there is deeply ingrained resistance to ever recognizing the concept explicitly in copyright law if it could affect the music or film industries.
• And the USA has its notorious work for hire doctrine, which treats performing musicians as the hired help unless and until they achieve star status.
• Canada has what was at the time of the last Copyright Board hearing one of the world's richest - possibly the richest - music levy schemes on blank media in both relative and absolute terms. At that time, Canada had only a 2.4% share of the world's music publishing business - less even than the Netherlands and Spain and a fraction of that of that of the UK, France and Germany. The levies have provided an estimated $160 million to date to the music industry, a very large chunk of which will find its way back to the USA, which has no remotely comparable regime. This is the levy scheme that the music industry wants to see subject to national treatment and thereby effectively doubled, with virtually all of the extra money by definition going to American and European interests.

So – let’s not get too carried away by the CRIA spin about the WIPO treaties. The real reasons why the so-called “Canadian” Recording Industry Association (“CRIA”) wants these treaties ratified according to their definition of adequate implementation probably include:

1. They want to get their hands on the enormous amount of money that would result from the doubling of the private copying levies as a result of the national treatment requirements of the WPPT.
2. The want legislative clout for aggressive TPM and DRM technologies – so that exercises such as the SONY Rootkit deployment could be blessed by law and it would be then be illegal to try to undo the resulting harm.
3. They want “access controls” to be spelled out in law, so that it would be illegal to circumvent TPM or DRM schemes to engage even in insubstantial copying, fair dealing or access to the public domain – or even a bypass of regional coding for legit DVDs bought abroad.
4. They want an aggressive “notice and take down” regime – that would result in easy take down of supposedly infringing material on the internet, essentially without recourse, merely by sending an automated electronic message to an ISP.

Of course, the treaties have some useful concepts and are by no means all bad. Much good faith effort went into them. The problem is that CRIA’s over the top definition of compliance in the American DMCA image is making them look unattractive to many.

Maybe that’s the real problem. Once again, CRIA should be careful what it wishes for. For example, their recent wish to make copyright an election issue probably cost their favourite MP, Sam Bulte, her seat.

Attempting to raise the profile of the WIPO treaties issue may also well backfire. There are good reasons why Canada has not rushed to ratification in the DMCA mode expected by CRIA. The new Government may not wish to entertain the inevitable controversy that the CRIA campaign will generate.

Besides, CRIA and IFPI stats show that Canada is doing very well indeed in music industry sales and revenues compared to the other countries that we supposedly lag behind in terms of legislation. Sometimes, though not in men’s Olympic hockey, slow and steady wins the race….

HPK

Excess in Proposed WIPO "xcasting" treaties

Sceptics about the proposed broadcasting and webcasting rights treaty being pushed at WIPO have much to worry about in terms of hopefully unintended but clearly foreseeable negative consequences for users' rights involving insubstantial copying, fair use and fair dealing, access to orphan works, of course the public domain.

The proposed treaties might make more sense to those who have concerns for these issues if those advocating for the treaties would come out and expressly disclaim any interest in preventing any acts in relation to the underlying works taken alone (i.e. without commentary or other copyrightable added value) if the broadcaster or webcaster doesn't own copyright in those works.

A museum does not own any copyright in a 500 year old painting. Publishing a reproduction of it, no matter how "accurate", should not give it any rights - as the American Bridgeman v. Corel decision states. There are lots of ways to "monetize" the publication of catalogues, post cards, etc. without effectively asserting copyright in the underlying PD works.

A convincing case has not been made that broadcasters or webcasters need to be able to assert rights in underlying works that are either in the PD or are orphaned. Simply making them available, by broadcasting, communicating, distribution or whatever term you like without more shouldn't create obstacles to access and entry into the PD.

The treaty proposals appear to go much farther than necessary to combat misappropriation or theft of signals, which is a valid concern.

The concerns of the user community are also heightened by the increasing incidence of convergence of broadcasters' and webcasters' interests with copyright ownership interests, so that control of the "master" or readily accessible copies may be in the hands of the broadcaster/webcaster - who will be tempted to use the new found rights to strategically and effectively elongate and perhaps even perpetuate expired underlying rights.

Actually, the issues may be even more serious from a practical standpoint in respect of possible over layering or over restriction of rights by webcasters as compared to broadcasters, if only because it's easier to imagine how webcasters could deploy DRM or TPM or otherwise enforce their proposed rights. That’s because webcasting is digital. Traditional broadcasting, however, is still analog.

It's going to be a while before analog broadcasting disappears and the analog hole will hopefully be around for some time - so that the public can continue to benefit from the PD, fair use and their other rights.

And by the way, Canada has potentially much to contribute on this issue at WIPO - even if only to help explain the issues to many countries that clearly don't understand them. Why are we sending undoubtedly well informed, well prepared and relatively large delegations who are virtually silent on the official record when there is so much that needs to be asked and said?

There is a lot at stake and Canada has a lot of responsibility - not only to its corporate stakeholders but to its citizens - and to other countries who have looked to Canada for leadership in the past and in other fora. Silence, in this instance, amounts to acquiescence to a troubled treaty proposal with profound potential effect concerning which there is little understanding.

HPK

More on Caution in the Classroom

Michael Geist has contrasted the problems I have outlined in connection with "Copyrgiht Matters!" with the much more adventuresome and innovative spirit of at least some American educators - as exemplified by the University of Michigan's digitization project partnership with Google.

Excess Caution

Another example of Excess Copyright does not come from the collectives’ side but rather from users. It is Excess Caution in copyright - most obviously evident in Canada's classrooms.

The educational community in Canada is perhaps the best (or worst) example of excess caution in copyright matters. Take for example the widely read publication entitled COPYRIGHT MATTERS! published by the Council of Ministers of Education, Canada, the Canadian School Boards Association, and the Canadian Teachers’ Federation. It is intended for K-12 teachers and their school boards.

It purports to set out basic copyright “rules”, many of which are arguably overly cautious and go beyond any caution that is required by law. The authors state that “This publication is a starting point in increasing awareness of your rights and obligations, as a teacher, in selecting and using copyrighted materials in your educational institution.”

The main trouble with the publication is that it is a litany of excess caution about what teachers and students can’t do (remember “Can’t Copy”) and is a constant and non-critical pointer to Access Copyright’s view of the world and referrals to several other content owner and collective friendly publications and websites. Not a word, for example, about CIPPIC’s excellent resource site or the fabulous EFF and other American resource sites on fair use, such as the one at Stanford.

Most seriously conspicuous by its absence - even though the publication bears a copyright notice of 2005 and is in its second edition - is the lack of any reference to or even apparent recognition of the landmark March 4, 2004 Supreme Court of Canada (“SCC”) decision in CCH v. Law Society of Upper Canada that considerably expanded the scope of fair dealing.

For example the CCH decision states at para. 56:

Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. As the passage from Hubbard indicates, the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.

(Emphasis added)

Instead, COPYRIGHT MATTERS! advises that one can:

“make a single copy of works, such as articles or photographs, protected by copyright for private study, research, criticism, review, or news reporting under the sections of the Copyright Act that allow such uses of copyright material — referred to as "fair dealing"

(Emphasis added)

But the SCC is far from categorical about the “single copy” requirement. How can one publish a critique of a photograph if only a single copy can be made, as the Court points out above citing David Vaver? The Court does state that:

In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair.

(emphasis added)

Multiple copies may indeed be illegal in some circumstances: “If multiple copies of works are being widely distributed, this will tend to be unfair”. But note the words “widely” & “tend”. This is hardly categorical. There is vast chasm between the encouraging openness of the SCC decision and the categorical “single copy” caveat and so-called “rule” in COPYRIGHT MATTERS!.

COPYRIGHT MATTERS! also fails to point out that many students can each make their own single copies for research purposes and that this would almost certainly be well within the CCH ruling.

Another example. COPYRIGHT MATTERS! also advises that one can:

copy or perform works whose author(s) died more than 50 years ago (but not translations or annotations of such works)

Does this mean that one can’t copy or perform a public domain translation of Dante or a public domain annotation of Shakespeare? Or that one can’t perform a public domain annotated edition of Mozart? The prohibition on translations and annotations is not qualified. Also, it is by no means clear and frankly unlikely that one needs any permission to “perform” a public domain work from an annotated edition in Canada, even if the annotations are still protected by copyright. Assuming that the original work has not been altered or adapted, it is the work that is being performed - not the annotations which usually serve to mainly to explain and comment on the work and which often have a very “thin”, if any, copyright element in themselves.

One of the most problematic and excessively cautious passages in COPYRIGHT MATTERS! concerns what teachers and students can’t copy from the internet. The pamphlet states:

Most material available on the Internet is protected by copyright. This includes text (e.g., postings to newsgroups, e-mail messages), images, photographs, music, video clips, and computer software. Under the Copyright Act, reproduction and unauthorized use
of a protected work are currently infringements. Therefore, reproduction of any work or a substantial part of any work on the Internet would infringe copyright unless you have the permission of the owner.

(emphasis added)

The emphasized portion is a pretty categorical statement. Any teacher reading this passage is going to be afraid to use the internet in the way that virtually all of those who post freely available material expect their material to be used.

Does this passage mean that one needs the permission of Bell Globemedia Publishing Inc. to copy an article on the Globe and Mail website that is freely available, (i.e. not behind their pay wall) - and contains the ubiquitous “print” and “e-mail” buttons for those who can’t figure out how to make their browser do the same function? I would be extraordinarily surprised if the owners of the Globe and Mail (or a collective purportedly acting on its behalf) were to sue anyone anywhere for making a reproduction - or even several reproductions for teaching or research purposes - of an article not locked behind a pay wall. The Globe would probably be flabbergasted to receive a specific request for permission to print one of their freely available online articles. If the Globe went to court, it would have to deal with the ancient and important doctrine of “implied rights” in IP law, which confers on legitimate users the right to use IP protected products in the manner in which they are intended to be used without specific further permission.

I will have more to say about the great “publicly available material” debate in another blog. But in the meantime, I question whether some of the oversimplified and even simplistic pronouncements in COPYRIGHT MATTERS! are really serving the best interests of our teachers and students who presumably don’t want to wait for “permission of the owner” while the rest of the world and their counterparts in other countries zoom on by.

Excess Caution is just as counterproductive as Excess Copyright. It is easy to be too cautious. True, people don’t often get sued for being too cautious - at least not yet. But excess caution is getting in the way of teaching, learning and research in Canada.

The clearance culture of caution is seemingly oblivious to the doctrine of users’ rights - as proclaimed very explicitly by no less that the Supreme Court of Canada who said in CCH:

Under s. 29 of the Copyright Act, fair dealing for the purpose of research or private study does not infringe copyright. "Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts. Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29.

(Emphasis added)

If users in commercial situations such as the lawyers requesting copies from the library in CCH have users’ rights, then surely teachers and students in our publicly funded educational institutions deserve no less and should be advised accordingly.

It is crucial for Canadians to realize that the fair use doctrine of American copyright law - which is one of its best features - inherently involves pushing the envelope and fighting the good fight in court when necessary. The publicly funded educational institutions in Canada have the resources to do this. The issue is whether they have the will and whether they are making fully informed choices in all cases. Even on the lobbying front, where costs and risks are much less than in litigation, Canadian educational issues have consistently asked for very little and received, unsurprisingly, even less. That’s excessive caution. It’s one thing to have “respect for copyright agreements and the copyright laws that govern our country”. But that doesn’t require the voluntary imposition and exercise of excessive caution on the tax payer funded users in the educational system.

It's the job of educators to teach. Not to be copyright cops. There are already plenty of those to go around - and they do. With the advantages of Canada's extraordinarily collective-friendly legislation and governance, and even outright government subsidies.

Excess caution is not “how the west was won”. Excess caution won’t get Canada ahead on the road to competitiveness. Schools in the China, India, and even the USA are assuredly not excessively cautious about copyright matters. They don’t have an organization such as Access Copyright and their educational sectors push for the ability to teach and do research and do not function as proxies for copyright collectives - which are fewer and weaker in these far more ambitious countries.

There are risks in education. Both teachers and students can be struck by lightning or hit by a car while walking to school. But some risks are minimal, worth taking and must be taken. Nobody can guarantee that a school board won’t get sued one day. But Access Copyright is likely to lay low for a long while after CCH and is unlikely to risk another set back of such magnitude. Access Copyright (then called CanCopy) was heavily behind the CCH case. Going after the legal profession was one thing - and this backfired badly in a case that actually had a reasonable shot at success (except regarding copyright in the actual legal decisions themselves). The optics of going after school children would be something else. Probably even too much for Access Copyright.

For anyone familiar with American copyright law and collective overreach, just remember this. ASCAP and the Girl Guides. Enough said.

The main author of COPYRIGHT MATTERS! is Ms. Wanda Noel. She has had considerable experience in copyright matters. For example, she was counsel to the Parliamentary Committee that made a number of key collective-friendly changes to Bill C-32 in 1997. She was also the consultant to the Department of Canadian Heritage for whom she wrote the report and conducted the limited consultation that led to the ultimately discarded copyright term extension provisions in the 2003 “Lucy Maude Montgomery Act”. For many successive years, she was a consultant to the former Department of Communications (the predecessor the Department of Canadian Heritage), during which time her client was a successful champion of increased rights for creators and collectives. She was also counsel to the Parliamentary Committee that in 1985 produced the “Charter of Rights for Creators”, an influential document that advocated far reaching new pro-creator and pro-collective rights.

HK

On Rhetoric the Morning After

Mme Bulte lost her seat last night by more than 2,200 votes. In the previous election, she led by about 3,500. That’s a difference of almost 6,000 votes out of about 51,000.

She called her critics, who were concerned about her election funding and fund raising activities, not to mention her excessive copyright policies, "pro-user zealots".

Many of these critics doubtless lived in her district. Perhaps it would have been more accurate and constructive to have referred to them as "voters".

HK

M.P. Threatens to Sue Professor

Hon. Sarmite Bulte, P.C., M.P.:

"I will not be silenced by zealots like Michael Geist and political opportunists like Peggy Nash who are making something out of nothing," she said, adding that she believes Mr. Geist's comments are nearing the point of being defamatory.

"I am not going to sue him before the election but dammit, watch me after the election."

(emphasis added)

January19, 2006, Globe and Mail

This posting will be updated after the election, which will be on January 23, 2006.

Speaking of Smear Campaigns

Sometimes we miss the forest for the trees. The Bulte imbroglio is morphing.

The Creators' Copyright Coalition (CCC) is apparently shocked, shocked to see criticisms (which they call a “smear campaign”) of Canadian copyright law, policy and policy makers ...“Particularly when they come from the American lobby group Electronic Frontier Foundation, which is rich but ignorant of Canadian issues”.

Imagine. An American lobby group. Rich. Ignorant of Canadian issues. Active in Canada. American interests lobbying in Canada. Copyright interest groups with money. In our cities. In Canada. I’m not making this up.

That indeed is the CCC’s concern.

So, I wonder how the CCC would describe CAAST, CRIA, CMPDA, CMRRA, CPCC, ESA and other so-called “Canadian” lobby groups and collectives that it must think are operating on modest budgets and are genuinely concerned and knowledgeable about the needs of actual Canadian creators. Otherwise, I’m sure that the CCC would be outraged about their presence on Canadian copyright soil as well.

Seriously, I actually have no problem with rich American lobby groups that are knowledge about Canadian law and society operating in Canada to protect their interests. That’s inevitable, and can even be helpful if their policy agenda coincides with the Canadian public interest. Sometimes they can (hopefully accurately) inform beleaguered bureaucrats about international case law and othe developments that are not always so easy to research. In any event, they’re entitled to present their point of view. That’s globalization and freedom of expression. But there should be some serious transparency in the effort and it is not always present.

CRIA, the Canadian Recording Industry Association for example, wraps itself in the flag of Canadian creators, but this is a flag of convenience that simply doesn’t fly. At a 2004 conference in New York, a prominent international lobbyist in the entertainment industry referred to CRIA in a memorable Freudian slip as the "Canadian Recording Industry of America".

And speaking of excess smear campaigns, I recall that a certain spokesperson for the Writers' Union of Canada (c/o which CCC snail mail is to be sent) and the League of Canadian Poets, two members of the CCC, uttered the following memorable metaphor in conclusion to her testimony in 1996 to the Parliamentary Committee that produced the dreadful amendments to Bill C-32:

In conclusion, I want to emphasis that writers are small business people and our copyrights are often our only real assets. Exceptions to copyright are an expropriation of our property against our will. If copyrights were cars, this would be car theft.

(Emphasis added)

Exceptions to copyright. Car theft. Expropriation. That’s what she said. I’m not making this up.

Funny that the Supreme Court of Canada somehow doesn’t buy into this memorable metaphor:

The respondent contends that s. 2.4(1)(b) is an exemption from liability and should be read narrowly; but this is incorrect. Under the Copyright Act, the rights of the copyright owner and the limitations on those rights should be read together to give “the fair and balanced reading that befits remedial legislation” (CCH, supra, para. 48).

Section 2.4(1)(b) is not a loophole but an important element of the balance struck by the statutory copyright scheme.

(emphasis added)

SOCAN v. CAIP 2004 SCC 45. per Justice Binne.

And who was the wise sage who penned this car theft canard? None other than Margaret Atwood, a doyenne maybe of CanLit but hardly of legal logic.

HK

More Excess Rhetoric - "apologists for piracy"

The Creators' Copyright Coalition (which mostly consists of collectives and lobby groups) is entitled to defend the Honourable Sarmite Bulte, M.P., who, by all accounts including her own, is their champion.

Their choice of language is, however, more than a bit excessive and is frankly ultimately counterproductive:

What a shame to see her (and the whole political process) subjected to crude smears about money and foreign interests. Particularly when they come from the American lobby group Electronic Frontier Foundation, which is rich but ignorant of Canadian issues, and by the Canadian creators’ most implacable foes, the academic apologists for piracy.

(emphasis added)

See the full “op-ed” on their website.

I know a lot of academics from around the world but I don't know any academic "apologists for piracy" - in Canada or elsewhere. I do know that there are many brave academics in the USA, Europe, Australia, and some in developing countries and a few in Canada (e.g. Michael Geist who is empowering his Canadian colleagues), who use their hard earned positions to do what they are supposed to do - which is to analyze and explain the history and theory of copyright law and to suggest ways in which it could be improved in the public interest.

As for the EFF, it is neither rich financially nor ignorant of Canadian issues. It is, however, very rich in resolve , expertise and integrity and the enthusiasm of its brilliant young staff. It has done spectacular public interest work on a shoe string in the USA and I and many others welcome its support of copyright reform in Canada through Online Rights Canada. The EFF website is one of the greatest research tools and archives around for hot button issues in American and international copyright law.

After all, copyright law is about the public interest, isn’t it? It’s not just about the sense of entitlement that certain corporate and collective interests have come to view as a natural right.

Do the American automobile companies call those who buy better and cheaper cars from Japan and elsewhere, or who ride bicycles, “thieves”? Do they – until recently one of the most protected industries of modern times – claim that they are entitled by law to maintain their yearly sales in the face of new technology, increased competition and – horror of horrors – new business models, such a public transportation? Even they have realized that the times, they are a-changin’.

Unfortunately, in the current excessive rhetoric, the following are just some of the areas of academic discussion that seem to have been conflated with “piracy”:

• Questioning the wisdom of the American DMCA and its importation into Canada
• Questioning Sony’s right to infect its customers’ computers with spyware and security holes
• Questioning the right of Canadians to engage in private copying, including downloading, when Canadians pay very high tariffs for precisely this right as a quid pro quo for one of the richest levy schemes in the world
• Questioning those (presumably including the Supreme Court of Canada) who believe in a wider concept of fair dealing or even that most American of notions, fair use. Interestingly, I’ve heard several reports that Glen Bloom, long time and able champion of corporate and collective copyright and adjunct academic, told a Law Society CLE on Friday the 13^th last that he has now changed his tune and believes in the expanded notion of fair use in Canada.

“Piracy” is a word that should be used carefully and properly and applied only to harmful intentional commercial scale infringement. It is wholly inappropriate to apply the word to teenagers who engage in downloading music that they love, or their grandmothers who provide them internet access on occasion, or to law professors who have the temerity to believe in the inconvenient fact (as seen by the corporate and collective point of view) that there are also users’ rights in copyright law.

Overuse of the rhetoric of piracy is at best crying wolf. At worst, it is crude propaganda that has fooled some of the politicians some of the time in Canada and elsewhere but won’t work in the long run.

If there is going to be a meaningful debate about this in Canada, the Creators' Copyright Coalition and their friends should apply their creative and communication skills in a less hysteric and more constructive manner.

HK

Excess Rhetoric

The Honourable Sarmite Bulte, former Chair of the Canadian Heritage Committee of the House of Commons under whose auspices the controversial “Bulte Report” was issued in 2004, has dismissed her critics on the election funding and fund raising issue, including Michael Geist, as “pro-user zealots”.

I wonder if she would include, as “pro-user zealots” the persons who wrote the following pro-user passages:

“Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts.

or

The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it.

(Emphasis added)

If these quotes ring a bell, it is because the person who wrote the first was the Right Honourable Beverley McClachlin, Chief Justice of the Supreme Court of Canada, writing for a unanimous Court in the landmark decision CCH v. Law Society of Upper Canada in 2004. The second pro-user passage was written by the Honourable Mr. Justice Ian Binnie of the Supreme Court of Canada in the 2003 decision of that Court in Théberge v. Galerie d'Art du Petit Champlain Inc.

Jack Granatstein – On Political Donations, Access Copyright & Bill C-60

Prof. Jack Granatstein is a pre-eminent author, researcher, historian, political scientist, educator, and passionate Canadian. He has also become something of a copyright activist. He was widely quoted last week in Angela Pacienza’s CP Story on the controversy over campaign funding and fundraising activities involving the Honourable Sarmite Bulte that has loomed large in both the copyright and election realms in Canada. I’ve obtained a copy of an e-mail dated January 10, 2006 that he has sent to the Maureen Cavan, the head of Access Copyright (“AC”).

As a prolific author of over sixty (60) (!!!) books, Prof. Granatstein is quite understandably a member of AC. But he doesn’t believe that his organization should make political donations. And he doesn’t like Bill C-60. Here is his e-mail:

**********
From: J Granatstein
To: Maureen Cavan
Sent: Tuesday, January 10, 2006 2:12 PM

Subject: Re: political donations

Ms Cavan, While I agree that advocacy is part and parcel of politics, I do not believe that an organization like Access Copyright should make political donations--ever. Nor did I like the Copyright Bill of the last Parliament primarily because, like many who benefit from Access' work, I wear 2 hats: creator and researcher/teacher. As a creator, I want to be paid for my work. As a researcher/teacher, I want free access to archival materials and as much free access as I (and all teachers and students) can get to published or www material. The bill did not achieve a balance that met my concerns, and thus I opposed it.

That having been said, you will certainly be aware of the furore now underway over Bulte's 19 January election fundraiser which is supported by major trade organizations whose interests are not mine. I don't think they speak for most of those you work for. Access Copyright unfortunately is now tarred by Bulte's broad brush, and I urge Access to reconsider its policy of making political donations. If there is a change of government, new ministers will not likely be willing to understand why Bulte deserved financial support--any more than I do.

I would like the board of Access seriously to re-consider its policy.

Jack Granatstein

***********
It’ll be interesting to see what happens.

Previously, he was instrumental in the defeat of the contentious copyright provisions in the so-called “Lucy Maude Montgomery Act” (Bill C-36, later Bill C-8) in 2003 –2004 in which Canadian Heritage tried by stealth to inject certain copyright term extension provisions that would have severely impacted researchers, archivists, and historians into otherwise routine machinery of government legislation intended to merge that National Archives and National Library. This was attempted on the basis of a managed, limited and inadequate consultation effort and a problematic consultant’s report. I too was very much involved in that C-36 fight. But that’s water under the bridge and an important part of the public domain has now been rescued from private appropriation in Canada.

Now, Prof. Granatstein is weighing in on Bill C-60, the current debate about political donations from copyright organizations and even the policy of Access Copyright, his own collective.

For those outside of Canada, AC is the self-proclaimed English language collective for reprographic and, if they can pull it off, for electronic and digital reproduction of text and visual material in Canada. AC collected about $30 million in 2004, its most recently publicly reported year, mostly from various levels of essentially compliant and even supportive governments and educational institutions who have yet to effectively confront AC. The corporate sector has been very reluctant to take out licenses with AC, especially since the Supreme Court of Canada, in a landmark 2004 decision, has clarified users’ rights to engage in research, even in a commercial context. Eventually, even the pubic sector institutions will begin to realize that this decision empowers educators, archivists, researchers, and students to exercise their substantial fair dealing users’ rights without the need to pay copyright license fees, much less excessive fees.

Interestingly, AC has a legal “chain of title” only to a small portion of the material that is actually copied by its licensees, particularly governments and post secondary education institutions. It has been operating on a controversial and legally questionable “indemnity” basis, much like an insurance company, with respect to the vast bulk of repertoire to which it has no chain of title.

Quite apart from the money it happily takes but has trouble figuring out how to distribute, AC has also been largely responsible for instilling a culture of copyright chill (which it calls “awareness”) throughout the system, resulting in frequent fear and misinformation amongst teachers, administrators, librarians and students as to what can and cannot be copied, and under what circumstances. But this is also due in no small part to the excessively cautious risk avoidance mindset resulting from the “clearance culture” that prevails amongst many if not most of those who manage and advise taxpayer funded institutional users. There are also huge resource costs at the user end. I’ll have more on this in due course in subsequent blogs about the phenomenon of Excess Copyright.

AC used to be called CanCopy - but changed its name after the nickname “Can’t Copy” coined by Harry Arthurs, my former law dean and York University president, was starting to stick. Some have irreverently suggested that its new nickname could turn out to be “Excess Copyright”.

Some of the practices of Access Copyright are an example of what I call Excess Copyright. But this blog space will by no means focus on that particular collective, tempting as it may be to do so. There are many other examples out there of Excess Copyright – and you may wish to stay tuned.

HK

ON EXCESS

Moderation is a fatal thing. . . . Nothing succeeds like excess.
Oscar Wilde 1854-1900


There is moderation even in excess.
Benjamin Disraeli 1804-1881


If music be the food of love, play on;
Give me excess of it, that, surfeiting,
The appetite may sicken, and so die.
Shakespeare, Twelfth Night (I, i,1-3)

****

Copyright is good. Excess in copyright is not.
There are many parties in the copyright construct.
All of them must avoid excess in order for copyright to be sustainable.
When is success excess?

HPK January 10, 2006