Historic G-20 World IP Court Announcement Expected

Michael Geist, Duncan Bucknell and Warwick Rothnie are reporting on a G20 agreement on a World Intellectual Property Court under the aegis of WIPO, the website of which is modestly silent on the remarkable development. The story was apparently first reported by the redoubtable IPKat at 120:01 today, GMT. It appears to have been confirmed by the normally reliable and well informed IP-Watch site at1:07 AM in an article by William Mew.

Reports are that:

G20 insiders have indicated that the proposed court is to be overseen by a panel of influential and internationally respected jurists in the field of intellectual property, of whom Senor Ignacio P. Gato has been touted as a possible candidate. Prof. Dr. Dr. jur. Wilhelm Neu is also among the contenders, as the Eastern jurist Dun Kan Buc Nel.

Sadly, despite this historic achievement, there are reports of the inevitable jostling for position amongst the Americans, Brits, French, Germans, Chinese and even WIPO itself as to where the Court should be located or who should be the presiding chair. At this late hour, I am unable to confirm speculation that Canada has offered the facilities of its Copyright Board, where the well equipped hearing room is presumably available for prolonged periods of time, according to the the Board's schedule.

Actually, I suspect that the first chair of this tribunal is likely to be Prof. Felix Tuft, shown presiding on a particularly complex case here, and who is a renowned expert on various pertinent treaties.

HK

April 1, 2009.

Future of Public Broadcasting - President Lacroix of CBC to Speak March 30, 2009

Couchiching Ottawa Round Table

The Future of Public Broadcasting in Canada

With HUBERT T. LACROIX, President and CEO of CBC/Radio-Canada

Monday, March 30, 2009
7:00–9:30 pm
Gowling Lafleur Henderson LLP
2600–160 Elgin Street
Ottawa

CIPA is pleased to announce that its next Ottawa Roundtable will focus on the future of public broadcasting in Canada. Set in the context of the current global economic circumstances, the deepening of the electronic age, changing demographic patterns, and the current political climate, the evening will focus on the current and evolving role of Canada’s national public broadcaster. Leading the discussion will be Mr. Hubert T. Lacroix, President and CEO of the Canadian Broadcasting Corporation/Radio-Canada. Prof. Christopher Waddell, Carty Chair in Business and Financial Journalism at Carleton University and former parliamentary bureau chief for CBC Television News, will serve as moderator.

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

Details and registration are here.

There will be lots of opportunity to ask questions.

+ Wine and cheese.

HK

Riding through the Glen to the Supreme Court of Canada?

Readers may know about the recent decision of the Federal Court of Appeal concerning Glenora Distillers, which is a Canadian company located in located in Glenville, next to the community of Glenora Falls, in Nova Scotia, Canada. It makes a “single malt whisky” called GLEN BRETON and has marketed this product as “being like a single malt Scotch in every thing but name.”

Glenora was taken to court by the powerful Scotch Whisky Association (SWA), which doesn't like the use of the word GLEN in association with whisky, unless it is used with single malt Scotch whisky. The SWA invoked the rarely used s. 10 of the Trade-marks Act which provides that:

Where any mark has by ordinary and bona fide commercial usage become recognized in Canada as designating the kind, quality, quantity, destination, value, place of origin or date of production of any wares or services, no person shall adopt it as a trade-mark in association with such wares or services or others of the same general class or use it in a way likely to mislead, nor shall any person so adopt or so use any mark so nearly resembling that mark as to be likely to be mistaken therefor.

The SWA succeeded before Justice Harrington in the Federal Court, but this decision was reversed on appeal - and quite properly so in my view. S. 10 simply doesn't apply in this situation. Justice Sexton of the Federal Court of Appeal correctly noted that many of the SWA members’ trade-marks containing GLEN would be in jeopardy if SWA’s argument on s. 10 had actually prevailed.

It is therefore somewhat surprising that the SWA has now sought leave to appeal the FCA decision to the SCC. It will be, frankly, even more surprising if they get leave. Had the FCA gone the other way, it might well have been an issue of “public importance” because Canadian trade-marks law would have become quite unpredictable. However, the FCA reached the conclusion that most IP lawyers would have predicted and the law on s. 10 seems just fine as it stands now and always did.

HK

Less and Less Privacy?

Michael Geist has blogged about a controversial decision involving controversial parties that seems to suggest that, in Ontario, a plaintiff can get disclosure of the email address, IP addresses, etc. of anonymous posters to blogs or websites, basically by filing a statement of claim and naming the posters as named John Does. Judge Stanley Kershman rejects the need to establish a prima facie case. He also rejects the application of the even lower "bona fide" claim test in BMG, which, of course, as an important appellate decision on rights of John Does to privacy. (Yes, I was involved).

There is no discussion of the substance of the current case other than a brief statement by the Court that "in the case before the court, we are dealing with an anti-hate speech advocate and Defendants whose website is so controversial that it is blocked to employees of the Ontario Public Service."

The plaintiff is the controverisal Richard Warman, who has been a complainant in many human rights cases and plaintiff in several defamation actions. The case concerns the controversial website freedominion.ca.

Nobody would suggest that online privacy is absolute. Clearly, in some cases inolving serious criminal behaviour and perhaps even some civil litigation situations, privacy might need to yield to disclosure under carefully measured conditions, such as were articulated in BMG.

However, it is disconcerting to think that, by merely by filing a statement of claim against a bunch of John Does, their privacy can be breached without any examination of the underlying case, or the reliability of the identification process. Judge Kersham is basically saying that there is "no reasonable expectation of privacy" in one's IP address.

If that's the case, there are profound implications for freedom of expression in Canada.

Hard cases can make bad law. Regardless of where one's sympathies may lie with the parties in this instance, it rather looks like an appeal of this decision might be a good thing.

HK

The Kiwi that Could Fly

New Zealand is hardly a major world power. It's population is only 3.9 million and its GDP is only USD $98.9 billion at last report. But it is a highly respected, innovative and fiercely independent common law nation.

Its decision to quickly repeal a "three strikes" internet copyright regime even before it could come into effect is getting a lot of attention, since it could empower other countries to stand up to the lobbying of the USTR and its corporate stakeholders.

For MSM coverage, see the LA Times, CBC, and BillBoard.

The CBC piece, in particular, notes the potential international ramifications.

HK

Obama Admin Supports Statutory Damages

(Photo: Gray Whale Succumbs to Exxon Valdez Oil Spill, Latoucha Island, Alaska (John Gaps III / AP)

As expected, though not as all had hoped, the Obama DOJ has weighed in on the side of supporting the constitutionality of statutory damages in the case of alleged downloaders and file sharers. Here's the CNET story by Declan McCullagh who does a great job of neutral and informed reporting on these things. Here's the view and plenty of links from the battling bloggers, Ray Beckerman (who has sought to file an amicus brief) and Ben Sheffner.

Here's the DOJ brief. While it's thoughtful and thorough in some respects, the very fact that is was even filed is bound to raise eyebrows. Two of the top officials in the DOJ appointed by Obama were formerly top private sector lawyers for the RIAA. Even if they had no dealings with the present filing, which I would hope and assume is the case, their former activities are are bound to be raised and have already been raised in the foregoing links.

One case that nobody seems to want to touch is last year's SCOTUS decision re Exxon Valdez, wherein punitive common law damages (NOT statutory minimum damages) were capped one to one with compensatory damages. Many thought that this was much too low under the circumstances (see above). Ironically, tomorrow is the 20th anniversary of the disaster. Here's the Exxon Valdez decision. Note the obiter dicta discussion at p. 38-39, which refers to treble damages in patent cases - and notes that the purpose of such damages is to encourage private enforcement.

In the Tenenbaum case, if one assumes that SONY's actual loss is some portion (say half) of the 70 cents it would have received from a $0.99 iTunes download, the $750 minimum under the statute is more than 2,000 times its actual loss for a lost sale to the defendant, assuming a lost sale. As to imputed value from "sharing", assuming that the case can be made out, there is probably no proof that there was any sharing with anyone other than the RIAA investigator. Should Joel be the lightning rod for millions of others? What level of minimum damages is necessary to encourage private enforcement, without crossing over into the criminal or otherwise unconstitutional realm, especially when millions of non-commercial individuals may be engaged in thousands of "infringing" acts each? While computers were not unknown in 1976 when these provisions were passed, these were then mainframe and other large scale computers not available to ordinary people. The concept of the internet, the celestial jukebox, and the possibility of litigation against thousands of individuals who have no commercial intent surely was not in Congress's mind even when it upped the ante to $150,000 per work from $100,000 in 1999 for those who "willfully" infringe, whatever that means. The amounts have gone up since 1976 but the concept hasn't changed from the mainframe days.

Here's a useful debate moderated by Doug Lichtman in which Charlie Nesson attempts to respond to Lichtman's pointed questions. The best comment is probably by Prof, Sharkey at about the 50 minutes mark.

HK

Kiwi Copyright Victory

It takes a brave Government to admit a recent mistake - although in this instance the legislation was passed by the previous Government. So it was a bit easier. But still brave.

The NZ Prime Minister has announced that the controversial s. 92 A "three strikes" copyright provision will be scrapped.

Here's one of many reports:

Prime Minister John Key has announced that the government will throw out the controversial Section 92A of the Copyright Amendment (New Technologies) Act and start again.

HK

EU Sound Recording Term Extension Vote Delayed

Big reported news from Europe. The vote scheduled for March 23, 2009 on copyright term extension for sound recordings from 50 to 95 years has according to the Open Rights Group been postponed until late April. Here's the posting from the Soundcopyright blog:

Amid intense lobbying in the European Parliament next Monday's vote on the proposal to extend the term of copyright has been struck off in a shock move. Following a meeting of the presidents of the political groups in the European Parliament on Tuesday, and with controversy and a lack of consensus surrounding the proposal, MEPs have delayed voting till the end of April - just before this summer's European elections. A trialogue discussion between the European Commission, Council and Parliament, set for the end of March, will now attempt to broker a deal to see if the directive will be allowed to pass.

Prof. Martin Kretschmer has had a lot of useful things to say about all of this recently in The Telegraph.

This is not necessarily a victory for opponents of the term extension. Sources suggest that there is a danger of a "compromise" deal that would still result in a 70 year term.

HK

Obama and Diplomatic DRM

Wow - the USA does seem to take DRM and TPM seriously!

It seems that President Obama gave UK PM Gordon Brown a gift of 25 classic American movies on DVD. The trouble is that they were region coded for North America only.

So Gordon Brown couldn't watch Psycho or any of the others.

Presumably, Prime Minister Brown isn't going to engage in any illegal circumvention. That might upset the MPAA and cause who knows what international ramifications. Not to mention litigation. On the other hand, the Brits not only invented the concept of the Crown but also that of Crown immunity...

Who knows where this will lead?

HT to Cory Doctorow at Boing Boing and a prominent Washington lawyer.

HK

Obama's Royalties

President Obama made $2.5 million last year from his two popular books. And he has other big publishing plans, as is being widely reported.

Somehow, I don't think that he's about to quit his day job. But I wonder whether this will lead him to believe that, if copyright is good, even more of it must be better.

HK

Strange News Stories re VANOC and SITA

First, the CBC story on VANOC using "copyright" law to stop ticket resellers. The CBC reports that:

Organizers are also suing Coast2Coast for breaching copyright legislation by using the words Vancouver 2010 and Vancouver 2010 Olympics.

Without seeing the statement of claim, it rather sounds to me like the reporter is using the word "copyright" rather carelessly, as many reporters do. I strongly suspect that the law suit is based on the special sui generis statute known as C-47, which is a very twisted version of trade-marks law, if anything.

The other strange story is entitled Sita Sings the Copyright Blues, wherein it is reported that a film maker named Nin Paley reportedly paid $50,000 for what presumably is a synch license for some music, allowing for the production of 5,000 DVDs. That's $10 per DVD, an absolutely astonishing amount. The film maker is trying to raise money to get this back. All very strange indeed.

HK

ASCAP & Bernie Madoff?

Q: What do ASCAP and Bernie Madoff have in common?

A: The US federal prosecutor going after Bernie Madoff used to do work for ASCAP.

His name is Marc O Litt. And O is his middle name - not his initial.

Here's the story.

It's a small world.

HK

Kindling Patent Litigation

As if Amazon hasn't had enough troubles lately with its Kindle 2 product, it has now been sued for patent infringement of this patent by Discovery Communications. The patent in question was filed for in 1999 and issued in 2007.

Here's the abstract:

The invention, electronic book security and copyright protection system, provides for secure distribution of electronic text and graphics to subscribers and secure storage. The method may be executed at a content provider's site, at an operations center, over a video distribution system or over a variety of alternative distribution systems, at a home subsystem, and at a billing and collection system. The content provider or operations center and/or other distribution points perform the functions of manipulation and secure storage of text data, security encryption and coding of text, cataloging of books, message center, and secure delivery functions. The home subsystem connects to a secure video distribution system or variety of alternative secure distribution systems, generates menus and stores text, and transacts through communicating mechanisms. A portable book-shaped viewer is used for secure viewing of the text. A billing system performs the transaction, management, authorization, collection and payments utilizing the telephone system or a variety of alternative communication systems using secure techniques.

Here's the story.

This comes at more or less the same time as Amazon is invoking the DMCA against an entity that provides software to enable the use of ebooks from other vendors on its Kindle products.

Who was it who said something about promoting "the progress of science and useful arts"?

HK

Nesson's Apology

In the increasingly stranger than fiction case of Sony v. Tenenbaum, Harvard Professor Charlie Nesson has filed a Notice to "apologize" for not withdrawing his motion to compel deposition of the ubiquitous Matthew Oppenheim.

Here's Ray Beckerman's comment.

HK

NZ Government Runs For Cover on Copyright

With friends like this, the RIAA, IFPI and MPAA hardly need enemies. The current NZ Government is clearly running for cover to distance itself from the "three strikes"/no rule of law/absence of due process/industry defined infringement approach of the previous NZ government. It seems prepared - indeed eager - to repeal the controversial s. 92A of its copyright legislation even before it comes into force. As is being reported:

Calls to scrap the controversial new internet copyright law are increasing ahead of the Government's March 27 deadline for a decision on its future.

United Future leader Peter Dunne, the minister of revenue, today compared it with the ill-fated Electoral Finance Act (EFA).

"The EFA arguably started out with good intentions but those became overwhelmed by the impracticalities of the legislation," he said on Radio New Zealand.

"In the end it became a pariah, it literally brought a government down and Parliament has now repealed it. I would have thought we would have learned a lesson."

Mr Dunne is the second government minister to oppose the new law.

(emphasis added)

One can only hope that the "lesson" isn't lost on the UK government, the Canadian government, and others that might be entertaining thoughts of such ill-conceived legislation and lobbying visits from such entertainment industry organizations as CRIA and its lobbyists.

HK

"Digital Britain" Debacle?

(Photo of Carter - The Guardian) (Photo of Lammy - Facebook}

On Friday the 13th of March, 2009, news came that the UK Government released a new report called Copyright in a Digital World: What Role for a Digital Rights Agency?

It can only be described as a rambling and barely comprehensible endorsement of the privatization of copyright policy and enforcement in a way that will pander to the major European and mostly American sound recording and motion picture industries.

The document could have been written by IFPI and BPI, with some help from the RIAA nad MPAA. Actually, it probably should have been written by them, because it would at least have been more readable, better edited, more logical and certainly more aesthetically presented. It might have even had some of the usual litany of “piracy” statistics to warn of the imminent collapse of creativity and innovation as we know it, and the diversion of countless millions (or is it billions?) of pounds, Euros US dollars and every other major currency to terrorism.

To the extent I can make any sense of this document, it calls for a “Digital Rights Agency” that would be run and funded by the private sector, to which would be delegated a huge range of roles and responsibilities ranging from rights clearance to enforcement. This, of course, would best serve the public interest and ensure that the UK becomes “the world’s favoured destination for creative companies to grow and invest”, according to the Ministers responsible.

Actually, this would be an un-agency, if the Ministers are to be believed:

But we need to be absolutely clear. Although we think that a rights agency of this sort could be a vital step in building an environment in which copyright can be protected and exploited, we are not proposing that Government should set up and run such an agency. This is emphatically not a proposal for a new government regulator. Instead, we are inviting industry to come together to create a body that could tackle those parts of this agenda that are for industry to deal with. In pursuit of that we are happy to work with industry as a convener and a facilitator in this rocess.

Very reassuring.

Oh yes, and ISPs would be required to rat on their most “serious infringer” customers to any individual rights owner.

Lots of talk about “Value chain”, “Enablement” and other content industry code words for control and suppression of innovation and access.

Talk about protocol blocking and bandwidth limitation. Just what the founders of the internet had in mind, I’m sure. Not.

This is consistent with the suggestions for an IP Czar in the USA and some sort of privatized policy making in Canada. Ministers Stephen Carter and David Lammy frankly seem to have lost it lately - and are the laughing stock of such normally IP rights respectful folks as my feline, human and humane friends as the IPKat - who are very derisive about all of this.

And last but not least, this document calls for comments by March 30, 2009 - i.e. in about two weeks or so. This must be an emergency on par with the global financial meltdown, in order to warrant such a demand for rapid response. Or perhaps, the Brits have taken a cue from Canada’s current paradigm for disingenuous calls for consultation that consists of setting deadlines that cannot realistically be met and ignoring whatever submissions that somehow manage to be made in any event.

This is clearly another example of US based policy shopping, which is imploding in New Zealand, (where even Google has weighed in against the RIAA and MPAA inspired approach) and hopefully will implode shortly in the EU.

HK

ACTA FOIA Request FOILED

Jamie Love of KEI reports in Huffington Post that their Freedom of Information Act ("FOIA") request for copies of ACTA documents have been denied by the Obama USTR on the basis of state secrecy.

Love says:

The texts are available to the Japanese government. They are available to the 27 member states of the European Union. They are available to the governments of Canada, Mexico, New Zealand, Australia. They are available to Morocco, and many other countries. They are available to "cleared" advisers (mostly well connected lobbyists) for the pharmaceutical, software, entertainment and publishing industries. But they are a secret from you, the public.

Today we received this letter from the White House, Office of the United States Trade Representative. Our FOIA request was denied on the grounds that the documents are "information that is properly classified in the interest of national security pursuant to Executive Order 12958."

Here is a link to a PDF of the denial of the FOIA request.

This is very disappointing for those had "hope" for "change" in the way the USTR does business.

HK

More on Ticketmaster

The issues around Ticketmaster may be a bit more complicated that the press has been reporting lately.

The Wall Street Journal is reporting today, March 11, 2009 that:

Ticket reselling -- also known as scalping -- is an estimated $3 billion-a-year business in which professional brokers buy seats with the hope of flipping them to the public at a hefty markup.

In the case of the Neil Diamond concerts, however, the source of the higher-priced tickets was the singer, working with Ticketmaster Entertainment Inc., which owns TicketExchange, and concert promoter AEG Live. Ticketmaster's former and current chief executives, one of whom is Mr. Diamond's personal manager, have acknowledged the arrangement, as has a person familiar with AEG Live, which is owned by Denver-based Anschutz Corp.

And it seems that Cohen's current World Tour is being promoted by the above mentioned AEG Live.

There's no suggestion that Cohen has a comparable arrangment to that of Neil Diamond referred to above. But the WSJ story provides addtional insight into how the secondary or resale market works - and doesn't work. This is a very interesting WSJ story and really worth reading.

Let's hope that Competition Bureau does a good job on this one. As I mentioned earlier, they initially didn't see any issue until Minister Tony Clement stepped in and told them to investigate.

HK

Is Fairey's Use Fair Use?

Associated Press has filed its very lengthy Answer and Counterclaim in Fairey's preemptive litigation. Here is is, courtesy of Ray Beckerman.

Interestingly, AP has relied to a large extent on allegations that Fairey has made a career out of this sort of thing, and provides several other examples. AP also makes much of its history of photographing Presidents.

This is a rather unusual pleading - but this is a rather unusual case.

HK

Minister Moore and the PVR

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

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

Would he be able survive litigation under the current law?

Michael Geist doesn't think so.

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

See the story here.

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

HK