CBC, serious music and copyright - the connection

I have sent the following open letter to the Heritage Committee. The connection to copyright is real - though not obvious. The Heritage Committee has subscribed to the partly correct - but only somewhat so - view that stronger copyright law will produce greater cultural achievement. In terms of serious or "elite" culture, that is almost never the case. Subsidies or direct funding - whether from Kings, philanthropists, or taxpayers have almost always carried the day.

The destruction underway at CBC to serious new music programming coupled with SOCAN's lack of interest or ability to adequately deal with "concert music" has created a real problem for serious composers in Canada. SOCAN at least is relatively transparent. The NRCC and all of its money and its treatment of serious performers remain a major mystery.

All the more reason why the current CBC management must be held accountable for the damage they are doing....

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

March 19, 2007

Hon. Gary Schellenberger, Chair
Hon. Members
Canadian Heritage Committee

Dear Honourable Members:

As a listener to CBC for more than 50 years, I am saddened and angered by the destruction underway of the excellence we once knew as Radio Two.

Current management at CBC radio is no longer interested in reaching an audience older than 50. Please remember, however, that those of us over 50 still pay lots of taxes and have lots of votes.

CBC management clearly believes that any programming that could possibly be considered to be elitist or erudite must be eliminated. Of course, the irony here is that the headlong rush to increase ratings by embracing mediocrity will only result in renewed efforts to disband the CBC - because the CBC could so come to so resemble the private sector that there will arguably then be no need to keep it - or to give it a billion dollars a year in subsidies. At the rate things are going, it will only be a question of time until it is handed over to the private sector - likely with disastrous financial consequences for the taxpayer. Is that the agenda? One hopes not. Canada without a CBC committed to excellence would be a much poorer country in which to live.

CBC management seems to have lost sight of the CBC's obligation under the Broadcasting Act to provide programming that "informs, enlightens and entertains". It seems that the entertainment factor is all that matters now. The CBC was never under any obligation to gain audience share by sacrificing quality. Indeed, quite the contrary.

The cancellation of the Two New Hours program - which had been on the air on Sunday night at 10 o'clock for almost thirty years - is a particularly regrettable example of the damage now being done. In its way, this show was to serious new music what Hockey Night in Canada is to our national sport. This show not only encouraged and sustained much of the activity in serious concert music in Canada. It figured prominently in making Canadian serious composers and performers known throughout the world. Its host and producer are world renowned artists in their own right. It set technical and artistic standards of excellence and built a core community that made Canada proud and raised the bar of musical achievement and heritage.

Now, it is gone. By dissipating the Two New Hours team and its very loyal interactive community of listeners and eliminating that locus and focus every Sunday night at ten, CBC management has done much harm. When bureaucrats with little or no background in either broadcasting or the arts are given control of a 70 year old legacy, it seems they must make their mark by destroying it. I hope they will be held accountable beginning with the Heritage Committee hearings underway this week.

Howard Knopf
1200 - 427 Laurier Ave. W.
Ottawa, Canada
613-238-8173

Vancouver 2010 - let the litigation begin!

Attention advertisers, and artists of all kinds but especially documentarians, photographers, etc....

Get ready not to "use" such words as "Vancouver" and "2010" in the same context unless you want to be sued by the rich, aggressive and historically ultra-litigious Canadian Olympic machine.....

Bill C-47 would be the most fundamental alteration to Canadian trade-mark law in over 50 years - and all for one special interest group that happens to have a lot of tax payer funding behind it...

The concept of a special Olympic bill isn't bad per se and this one could be worse but still needs a lot - and I mean a LOT - of work in Committee...

Some of it's flaws are explained in Jennifer Ditchburn's CP story, which quotes your's truly....

And yes - it relates to copyright. Because many of the protected marks are also capable of copyright protection and you can be sure that the painful absence of a satire and parody exception in Canadian copyright law will be exploited by the Olympic lawyers without humour and without hesitation.

HK

From the Boiler Room to Spamalot to SOCAN's Proposed Internet Tariff 22

Michael Geist and Paul Kedfosky note that the SEC has suspended trading in 35 companies that use spam to tout stocks, an astonishing eight of which "were either headquartered in Canada, or had offices there."

I suppose that there is some perverse comfort in confirming the predictability of certain phenomenon:

• Bad corporate behaviour emanating from or with a real and substantial connection to Canada often gets prosecuted not in Canada or not first in Canada but in the USA.
  
• Before there ever was the internet or e-mail, there were stock market "boiler rooms" that touted stocks over the phone and across borders.
  

Canada's Supreme Court long ago held that a boiler room operator who arranged his affairs across several jurisdictions and was bilking Americans from the Toronto telephone sales solicitation room could indeed be prosecuted here in Canada. The case of Libman v. The Queen, [1985] 2 S.C.R. 178 is one of the seminal "real and substantial link" judgments.

And what, you might ask, does this have to do with copyright? The Libman case is is proving to have a real and substantial effect on Canadian copyright law as seen in the SOCAN v. CAIP decision from 2004 - which will no doubt loom large in the renewed round of SOCAN's eternal quest to achieve and enforce "Tariff 22", coming once again to the Copyright Board next month,.

HK

WIPO & Kyoto - Signature v. Ratification

Further to John Ibbitson's March 7, 2007 column in the Globe and Mail, Michael has a good post today on the difference between signature and ratification.

In addition to the example given by Michael and quite possibly the most egregious example in the current climate, as it were, of a treaty signature not being followed up by ratification, consider that of the USA and the Kyoto Protocol.

As of July 10, 2006, the USA is listed as having signed Kyoto in 1998 - but has not ratified it.

Here's what Wikipedia has to say:

The United States (U.S.), although a signatory to the Kyoto Protocol, has neither ratified nor withdrawn from the Protocol. The signature alone is symbolic, as the Kyoto Protocol is non-binding on the United States unless ratified. The United States was, as of 2005, the largest single emitter of carbon dioxide from the burning of fossil fuels.^[42]. China is projected to take over at the top of the table by 2030.^[43]

Although the USA has apparently thought about and looked into how it might go about the unusual if not unprecedented step of legally withdrawing its signature from Kyoto, it appears that it has not done so to date.

To continue with a metaphor that both Michael and I have used, folks who live in glass greenhouses ought to be careful about throwing stones.

It is wrong both in fact and law and seriously misleading for anyone to suggest that Canada has any international legal obligation to ratify the 1996 WIPO treaties. Canada may choose to do so but is not required to do so. Period.

HK

Canadian Copyright, Kyoto, Cacaphony, Conflation and Confusion

I have never seen as much pressure, spin, and propaganda on Canadian copyright as I have in the last few months - climaxing in today’s story by John Ibbitson in the Globe and Mail comparing Canadian copyright policy to the Canadian Kyoto imbroglio. He says:

With each failure, American frustrations will grow, along with pressure for linkages -- taking action in other trade areas to punish Canada for failing to pass a new copyright act. What should matter to all of us, though, is Canada's reputation before the world. If the best we can do on this, as on so many other files, is shrug and say, "Sorry, the federal government is too unstable for us to act," what does that say? When did Canada become Italy?

The American music and movie industries are getting hysterical about counterfeiting - while there is no credible evidence that there is any more availability of counterfeit products in Canada than anywhere else. In fact, if what you really want is a fantastic selection of cheap fake Rolex watches or Louis Vuitton handbags, go to New York and just shop till you drop on Canal Street or even right on Fifth Avenue where the street vendors have very good deals on whatever you may wish - just don’t ask for a receipt or a warranty. And don’t ask for the Americans to drop their hypocrisy on this issue.

I can only conclude that there is a very deliberate and highly organized attempt to confuse and conflate counterfeiting and piracy on the one hand with legitimate grey market goods, user and artist friendly fair dealing exceptions and freedom from oppressive DRM and TPMs on the other hand. Credulous journalists and politicians are the targets.

Of course, nobody supports counterfeiting. But broadly attacking it with unnecessarily potent weapons and without proven targets or surgical precision is rather like an aimless war on terrorism and dubiously existing weapons of mass destruction - or in this case weapons of mass distribution. The result will be predictably messy, counterproductive and highly controversial. It could even breed its own insurgency.

The American government and the lobbyists who are pushing it to push Canada wish to preserve business models that no longer work in the digital age. They are seeking to strengthen old copyright laws designed for $25 high margin albums and DVD movies - when the world has moved on to the Internet, Google, iTunes, YouTube and beyond. The Canadian independent music industry understands the difference - and has cut its ties to the four foreign majors on these issues.

Canada meets or exceeds its international legal obligations. Canada has not ratified the 1996 WIPO treaties and is under no obligation to do so. Signing a treaty is like dating. Ratifying is like marriage. We’ve gone on a date with the WIPO treaties. That’s all. Some have urged that we do more. But many observers would seriously question whether it was even a good date or a bad one.

The American copyright industries want an all or nothing ratification approach along the lines of the dreaded American DMCA legislation - an approach taken so far only by the USA and Japan amongst major G8 members. Europe has not ratified these treaties - and the controversies there are growing rather than waning.

The thought of Canada being on the US “priority watch list” falls somewhere between a joke and an honour, as I’ve stated before. The US entertainment industry and the American Government are going straight to the top in Canada over this issue. But Ibbitson correctly points out that this isn’t the same as softwood.

Indeed, in important ways and in the long term, it may be even more serious than softwood. What this is about is political and cultural sovereignty. What’s good for General Motors may once have been good for the USA - and what’s good for the American entertainment industry may indeed still be good for America but has usually not been good for Canada. We simply don’t need a Department of Canadian Heritage if we don’t have any Canadian heritage. Canada needs copyright sovereignty as badly as it needs sovereignty in our Arctic, our army or in our health care system. Let’s hope Canada’s new government takes all the time it needs to get this right - for Canada.

HK

French IP Developments in English

A bright young man named Nicolas Jondet has launched a promising website to keep English speaking readers up to date on on recent developments in French Law, focusing on Intellectual Property, Technology and Medical Law.

He is a PhD candidate and research assistant with the AHRC Research Centre in Intellectual Property and Technology Law at the University of Edinburgh (UK). Here is his SSRN Profile

HK

IIPA and USTR and s. 301

A few quick points about the latest fulsome report from the IIPA:

1. The IIPA is a lobby group - basically run by a Washington law firm that lobbies the USTR on these matters. It represents big content owners in the USA. It has a lot of clout in the USTR but it is definitely not the USTR.
2. Nobody takes the s. 301 process very seriously. Canada's "long tenure" on this list is - if anything - a badge of honour that we not only spell the word "honour" differently than the IIPA would prefer - but we are a sovereign country that does not always ask how high the IIPA and USTR would like us to jump.
3. The IIPA report is, as usual, over the top. It relies on doubtful data such as that of BSA.
   
4. Another example: the Report misstates what Canada's Supreme Court said in SOCAN v CAIP. The Court said - by way of obiter dicta only - that "notice and take down" would be more "effective" in dealing with online infringement than litigation based on the doctrine of "authorization" - which is clearly true. That, however, does not warrant the IIPA saying that the Supreme Court "recommended" "notice and take down."
5. The most flagrant adjudicated flouter of international copyright law is the USA. The WTO has long ago finally concluded that the USA fails to provide royalties for performing rights in many instances as a result of s. 110 of its Copyright Act. This is the most serious copyright dispute to date in the WTO and the USA is clearly unwilling or unable to do anything about coming into compliance. It has bought its way out of this violation with a paltry payment fixed by arbitration of about Euro 1,219,900 per year - a fraction of what the royalties ought to be.
   
6. Except for certain limited recourse available to visual artists, the USA does not provide moral rights and cleverly exempted moral rights from the dispute settlement mechanism in TRIPs. The USA does not believe in moral rights, which are a touchstone of copyright for most countries that really do respect the essence of what copyright law should be about - which is protecting artists and users, and not manipulating and monopolizing markets.
   
7. Countries that live in glass houses....

Michael also has a good take on this entitled "In Good Company".

HK

"Statistically Indistinguishable From Zero"

Oberholzer and Strumpf - the 2007 version of their landmark paper is updated and published in the very prestigious juried Journal of Political Economy from the University of Chicago. My comments will follow at some point. Here's the abstract. **************************** The Effect of File Sharing on Record Sales: An Empirical Analysis
FELIX OBERHOLZER-GEE Harvard University Business School KOLEMAN S. STRUMPF University of Kansas - School of Business Journal of Political Economy, Vol. 115, pp. 1-42, February 2007 Abstract: For industries ranging from software to pharmaceuticals and entertainment, there is an intense debate about the appropriate level of protection for intellectual property. The Internet provides a natural crucible to assess the implications of reduced protection because it drastically lowers the cost of copying information. In this paper, we analyze whether file sharing has reduced the legal sales of music. While this question is receiving considerable attention in academia, industry, and Congress, we are the first to study the phenomenon employing data on actual downloads of music files. We match an extensive sample of downloads to U.S. sales data for a large number of albums. To establish causality, we instrument for downloads using data on international school holidays. Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period. (emphasis added) And here's a link to the pre-publication version. ******************************** Thanks to Jon Newton for pointing out this publication. HK

Campaigning about Camcording

The Canadian Motion Picture Distributors Association (“CMPDA”) is the trade association for Hollywood in Canada. It’s the movie counterpart to the Canadian Recording Industry Association (“CRIA”), sometimes referred to as the Canadian Recording Industry of America.

However, the CMPDA has normally been much more restrained and responsible than CRIA in its lobbying and in its descriptions of alleged inadequacies in Canadian law. And needless to say, it has not tried to make its customers into victims of mass litigation. This mirrors the situation down south, where the RIAA carries on its war against weapons of mass distribution, while the MPAA sits back wisely watching and now looks almost magisterial by comparison - especially in the aftermath of Jack (VCR = Boston Strangler) Valenti.

But now the CMPDA has launched a massive campaign about what it sees as a need to attack “camcording” in cinemas in Canada. So far so good. Nobody would seriously defend anyone’s right to camcord a whole movie in a theatre for piratical purposes - even if the harm might be somewhat overstated and the remedy sought may be somewhat overwrought. I’ll get back to that in a moment.

But unless my ears fooled me this morning when I heard the CBC news, the problem is that CMPDA is now seriously conflating this issue with the 1996 WIPO treaties and Canada’s general lack of progress, as CMPDA sees it, in copyright reform. Mr. Frith of the CMPDA suggested that Canada is somehow behind the rest of the world, WIPO-wise.

First of all, nothing in the WIPO treaties (if either applied, it would be the WIPO Copyright Treaty "WCT") has anything to do with camcording in theatres. Camcording in theatres is already illegal. Nothing in the treaties would make it more illegal. If we decide to enact a tougher and carefully conceived anti-camcording law, fine. But it would have no more to do with the WIPO treaties than a fish has to do with a bicycle.

True, the WIPO treaties deal with “making available” and communication of works such as films on the internet. But that’s got nothing to do with camcording in a cinema. And it’s highly likely that Canadian law is already more than adequate in terms of meeting the WIPO treaty requirements in these respects.

And once again, it must be pointed out that the EU is still far from ratifying the WIPO treaties. The only major countries that have ratified the WIPO treaties are the USA and Japan. (Belgium, if one considers it “major”, is said to have gotten ahead of the EU and engaged in “mistaken” premature ratification). The rest are a coalition of the billing ranging from Albania to the United Arab Emirates, virtually all of which are somehow beholden to the USA.

It does not behove the CMPDA to embark on the over-the-top rhetoric we have come to expect routinely from CRIA.

Back to camcording. If better legislation is needed, which may indeed be the case, there’s definitely a need to avoid poorly conceived legislation that might make it illegal to merely carry a recording device into a theatre, since it’s unrealistic to criminalize people for carrying cell phones and video cameras when they go the cinema. And bear in mind that virtually all cell phones can now record video and it's getting harder and harder to tell the difference between video and still cameras, which are increasingly converging technologically.

And after all, if you take the kids to the park and record them on video and then go to the movies, are you supposed to leave your expensive camcorder in the car so that it can easily get stolen? Maybe Canadian law can be improved in this area - albeit with great care. Amending the Criminal Code, which is what CMPDA wants, is not a simple thing. Nor should it be. There are real issues involving deployment of scarce police resources when we have rampant violent crimes involving guns, drugs and other obvious criminal activity. There are serious policy issues about the border between true criminal behaviour and the use of the state to enforce what may in some cases be purely or arguably a civil matter.

HK

The Ecstasy of Influence - A Plagiarism

Here is a very well written and researched detailed essay on copyright, '"open source" culture', borrowing, stealing, love and theft, Jefferson, Disney, Girl Guides, RIAA litigation against twelve year old children and much more in the current Harper's by Jonathan Lethem.

HK

A Victory for an RIAA Victim

One of the 20,000 or so victims of the RIAA war against its members' best customers has just succeeded in getting an order for attorney's fees.

This is unusual in the USA and will be an important precedent - unless the RIAA successfully appeals.

More detail here from Jon Newton.

Bravo to her attorney, Marilyn Barringer-Thomson of Oklahoma City, Oklahoma and to Ray Beckerman for his role in defending various victims and maintaining a great blog all about the war here.


HK

Praise the Lord and Kickoff the Litigation

What could possibly be more important in the U.S. of A. than the Super Bowl and religion?

You guessed it.

Respect for copyright.

Copyright law, it seems, trumps God and gridiron.

So - the NFL has told Fall Creek Baptist Church in Indianapolis that its plans for a Super Bowl watch party in front a big screen TV would be illegal. This, and several other churches in Indiana have canceled plans for communal viewing of the Super Bowl this Sunday.

The NFL forbids such violations of creators’ rights, even where there is no charge for admission. All I can say is that America must be proud to know that mass piracy, theft and flagrant disrespect of creators’ rights are being blocked before they infect the inner sanctums of Indiana churches on Super Bowl Sunday, probably the most sacred day of the year in the USA.

It's one thing to love football, religion, thy neighbor and one's home team. But respect for copyright must always come first.

HK

WIPO Broadcasting Treaty - Update January 19, 2006

The current "non-meeting" is over.

There will be another meeting around June 18-22, 2007. There is supposed to be documentation ready and circulated no later than May 1, 2007 in preparation for that meeting.

If there is no consensus on a signal based approach in the June meeting, there will be no diplomatic conference later this year. But for a variety of reasons and complex politics, that doesn't mean that this initiative will then necessarily die.

In spite of the fact that there is been little progress on this in 9 years, and the Chairman and the WIPO Secretariat do not appear to be hearing many things they do not wish to hear, including the strong message that only a signal based approach will fly, the "non-papers" still focus on exclusive rights - which is where the money is, particularly in retransmission.

Here's a couple of terrific blogs to provide more detail:

Jamie Love, with his superb communication skills, has probably done more than anyone to expose the problems of this proposed treaty. He writes about it in the widely read Huffington Post.

The EFF provides a detailed analysis and narrative of what happened and didn't happen in the last three days.

This initiative has tremendous potential for danger to the progress of new technology, the future of the public domain, and the imposition of new costs and controls on consumer behaviour.

To the extent that the broadcasters have a case - and they do in some respects and in some countries - they may wish to consider a far less overreaching approach.

Now that some formidable corporate and NGO opposition has lined up and been energized, the momentum for this treaty has apparently been lost.

HK

A WIPO "Non-meeting"?

There were a bunch of "non-papers" delivered by the Chairman that either were done at the very last minute or presumably could have been sent out ahead of time.

Apparently, there was a "non-slide" presentation about the objectives of the proposed treaty.

And some "non-conclusions."

Manon Ress has the latest.

According to her:

The chair did not want "too many to speak" but had to let India make its statement. Asking for clarification, India describe how the list of matters did not reflect agreement and was just a list of matters that have been discussed for years. According to the mandate, only matters where agreement was reached should be listed.

The plenary ended on that note. People here are puzzled. If you only point to agreement (on or off the record it seems), the non-conclusions might end up very very short. Would that mean that this meeting did not really happen? Like a non-meeting?

HK

WIPO Broadcasting Treaty - Update January 18, 2006

Here's a key part of the Chairman's "non-paper" proposal today for a supposed signal based non-exclusive rights based approach:


SCCR/15/2: Article 9, 11 and 14

Rights in the Broadcast

Broadcasting organizations shall enjoy the exclusive right of authorizing:

i) the simultaneous or deferred retransmission of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks; and

ii) the fixation of their broadcasts.


SCCR/15/2: Articles 10, 12, 13 and 15

Protection of Uses Following Broadcasting

Broadcasting organizations shall enjoy adequate and effective legal protection in respect of
i) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts;
ii) the making available to the public of the original and copies of fixations of their broadcasts;
(iii) the making available to the public of their broadcasts from fixations, by wire or wireless means, in such a way that members of the public may access them from a place and a time individually chosen by them; and

iv) the communiation to the public of their broadcsts, if such communication is made in places accessible to the public against payment of an entrance fee, or using very large screens in places accessible to the public, or made in a profit making purpose.

If it looks, smells and walks like exclusive copyright rights, then maybe that's what it is.

More from Manon Ress here.

HK

The Sky Isn't Falling

10% Growth in Overall Music Sales; Digital Track Sales Exceed 120% Growth

TORONTO--(BUSINESS WIRE)--Nielsen SoundScan Canada, the entertainment industry's data information system that tracks point-of-purchase sales of recorded music product and Nielsen BDS, the music industry’s leading music performance monitoring service, have announced their 2006 Canadian year-end sales and airplay monitoring data, for the 52-week period January 2, 2006 through December 31, 2006.

OVERALL MUSIC SALES (01/02/06 – 12/31/06) (ALBUMS,SINGLES, MUSIC VIDEO, DIGITAL TRACKS – IN MILLIONS)
UNITS SOLD	2006	2005	% Chg.
	64.1	58.4	9.8%

...

More details here.

There are a lot of businesses that would love to see those numbers - and they aren't whining, and wining and dining Ministers, MPs, and senior officials for extra strong interventionist windfall monopoly rights.

The digital track sales are particularly impressive.

Hat tip to Jon Newton.

HK

Copyright and Canadian Politics 2007

Kady O'Malley has a rousing and provocative leading piece on copyright and Canadian politics in Macleans.ca quoting BoingBoing's famous author/blogger/co-founder Cory Doctorow and myself and referring to Michael Geist's work.

The catchline says it all:

The copyright lobby that claimed credit for taking down a Liberal MP sets its sights on the Heritage Minister

She reminds readers of the story of Sam Bulte's defeat and suggests that there are lessons to be learned for those in power today.

Ms. O'Malley has just moved on from the influential but niche circulation Hill Times, where she did great work for years on copyright and the Ottawa lobbying machine behind it.

She will now have a much larger audience. She also does a lot of TV work.

And speaking of large audiences, Cory Doctorow has over 2,000,000 unique readers each month and he is all over the copyright issue. Many of his readers are bloggers themselves.

Here's Cory's take on the current copyright situation in Canada.

HK

WIPO Broadcasting Treaty - Update Janaury 17, 2006

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is holding its First Special Session from January 17 to 19, 2007.

The first day apparently was filled with the sounds of silence as delegates from many countries and NGO's gathered in Geneva. Little happened. The Chair - Mr. Liedes - finally handed out some documents.

According to William New of IP-Watch:

Liedes doled out his non-papers sparingly during the day only when it was clear member governments were not going to proffer their own, he said. “There is no master plan … no mandate on what to do,” Liedes said afterward. He said he decided to put forward “something that reflects my understanding” of positions.

It's not clear why delegates are convening in Geneva to be handed brief documents that could presumably have seen sent out earlier by e-mail. Delegations need time to analyze and need instructions.

IP-Watch has a detailed report on today's events, including the text of the documents.

It's worth recalling that the monumental Berne Convention went from being a glint in someone's eye to fruition in three years from 1883 to 1886 when the telegraph was high technology and steam ships were still fairly new technology. This current effort concerning a broadcasting treaty has been going in earnest since about 2000 and traces back even further - about 8 or 9 years.

There's a lesson to be learned here. But I'm not quite sure yet what it is.

HK

What to look for in 2007 in Canadian Copyright

Here are some big copyright issues to track in 2007 - roughly in the chronological order in which I believe they will unfold.


1. Kraft v. Euro Excellence - on January 16, 2007 the Supreme Court of Canada will begin its Winter 2007 session by hearing the appeal in this very important case about copyright and parallel imports. I’m involved in this case as counsel for an intervener, Retail Council of Canada - so I won’t say anything more for the time being. Here’s the Supreme Court’s summary of the case. For those in Ottawa who wish to attend, the hearing will begin at 9:30 AM. Public seating is limited.

2. The WIPO Standing Committee on Copyright and Related Rights (SCCR) will hold its First Special Session from January 17 to 19, 2007 in Geneva on the proposed WIPO Broadcasting Treaty. This has been a lengthy effort that has included many previous meetings, all aimed at establishing a treaty that could give broadcasters and cablecasters, such as speciality channels CNN and A&E, sweeping copyright-like exclusive rights in their transmissions - above and beyond the underlying content. Webcasters tried unsuccessfully to climb onboard. It was - and remains - a very complex and arguably far too encompassing and unpredictable solution to what is arguably a very narrow problem largely concerning the “piracy” of live signals of sporting events, etc. in some smaller countries. Broadcasters, for their part, want an exclusive retransmission right - which would enable them to collect considerable revenue from retransmitters, such as cable and satellite companies. In its recent iterations, many have been concerned that the treaty as contemplated could also effectively elongate protection of underlying content virtually forever - even public domain content. And, increasingly, broadcasters’, cablecasters and copyright owners are converging and are one and the same. Now that some big business interests have finally realized some of the potential problems with the treaty, the USA has pulled its support for the wide exclusive rights based approach. It is possible that a much narrower signal based approach could be adopted. If that doesn’t happen, the treaty initiative is likely to fizzle - though possibly slowly. A diplomatic conference is tentatively scheduled for Nov. 19 - Dec. 7, 2007

3. On January 29, 2007, Canada’s Parliament will resume sitting. Talk of an election is in the air. Ministers Bernier and Oda are still in place. The dynamics of a minority government are hard to predict on an issue such as copyright, which obviously is not the sort of issue that would likely defeat a government, but is nonetheless a live grenade that can cause a lot of damage if mishandled, as Sam Bulte well knows. Rumours are that a bill will be introduced soon. Whether the Government will try and in turn succeed in pushing it through the minority minefield before an election remains to be seen.

4. The Copyright Board will hear two very important new cases.

a. One involves the resumption on April 17, 2007 of SOCAN’s still ongoing attempt to collect money for use of of music on the internet. This has been going on since 1995 and has already been to the Supreme Court of Canada once. There are still a number of unresolved legal issues and the internet is a very different place that it was in 1995. Overall questions will involve how many times and to how many collectives and how much must Canadians pay for the same thing - including Canadians who don’t use or consume music on or from the internet in any way at all? More later for sure.

b. The other main hearing will start on June 12, 2007. It is Access Copyright’s attempt to impose a $12 per year fee on every kid in K-12 in Canada. This will be opposed by CMEC, even though that organization shares similar views on many copyright matters with Access Copyright. A big question to watch is the extent to which the 2004 Supreme Court of Canada decision in CCH v. LSUC that empowers a users’ right to engage in research and otherwise opens the horizons of fair dealing will be utilized by CMEC, which has so far shown no cognizance of it in its flagship publication, Copyright Matters!

5. Speaking of Access Copyright, the current round of post secondary Access Copyright licenses expires this year. It’s interesting timing, considering what is happening at the Board on the K-12 front. Let’s see if the AUCC will try to use the CCH v. LSUC decision to significantly reduce the amounts payable and to use the savings to better purposes, such as putting more books in libraries and increasing the amount of information available to Canadian teachers, researchers and students, rather paying more and more times over for less material and less access. Let's see whether CAUT does anything.

6. There is a vacancy at the Copyright Board. The appointment process has changed in at least one way. The vacancy was advertised on the Board’s web site.

7. The Board will at some point rehear the controversial commercial radio tariff, as the result of the Federal Court of Appeal’s ruling sought and obtained by the CAB. But will the Board set the rates even higher than it did before the judicial review? This appears to be a possibility.

8. The Federal Court of Appeal will hear a judicial review application on the ring tones tariff. It appears that the remaining objectors may have may finally figured out that they shouldn’t have conceded that there was a “communication” involved, which I argued strongly early on until my client withdrew from the hearing. It will be interesting to see if the remaining objectors can now raise the issue for the first time in this matter in the Federal Court of Appeal, and what the potential impact of this line of argument could be on other files.


These are some of the things I see on the foreseeable horizon in Canada. But if I’ve learned one thing since law school, it’s to expect the unexpected.

HK

Public Domain Registry? McLean delivers another instalment...

Almost a year ago, Access Copyright ("AC") announced - with great fanfare and some acclaim - a public domain registry project.

Some notable people and organizations were involved, especially Creative Commons ("CC") - both in the USA and Canada. I always wondered what was in this partnership for the CC organizations, since AC has no obvious particular expertise or comprehensive database of death dates to contribute to this effort. AC does have oodles of money - but I don't know why a Wiki-based project would need to cost a lot of money. CC would appear to have much more to contribute than AC. On the other hand, the halo effect of a partnership with Larry Lessig, CC, etc. for Access Copyright was quite obvious. Anyway, I and others have waited to see what might materialize. So far, I'm not aware of any more specifics or publicly announced deliverables, or even a timetable. I'm confident that the project was conceived in good faith and with much enthusiasm, and would serve a useful purpose if it ever materializes. But so far, it appears to remain at the announcement stage...

On the other hand, the redoutable Wallace McLean continues with his third annual edition of Public Domain Day 2007 - with a list of some notable (Billy Bishop, H.L. Mencken, etc.) and many forgotten creators whose work became part of Canada's proud public domain on January 1, 2007 and some material on US PD issues. And some good, trenchant commentary. Wallace doesn't have grants, committees, partnerships, or anything of the sort. What he lacks in resources, he makes up with resourcefulness and enthusiasm.

HK