The apparent will of the Government to block the American takeover of Canada's leading strategic satellite technology funded by almost a half a billion Canadian tax payer dollars is great news. Here's the NY Times take.
Perhaps this Government remembers the forever tarnished legacy left by John Diefenbaker that stuck to the Progressive Conservative party for decades when The Chief canceled the AVRO ARROW aerospace program. This was one of the darkest days in Canadian history - and it happened apparently because President Eisenhower insisted. No other valid reason has ever been advanced.
What does this have to do with copyright?
The obvious question is whether this signals a new will to assert Canadian sovereignly on sensitive files where money and other values that money can't buy suggest that Canadian interests should come first. If so, this Government will win many friends and quite possibly a majority in the next election.
Or, will this Government make amends for cancelling the satellite deal by handing to the USA on a silver platter what certain American corporate interests and their Canadian lobbying proxies, such as CRIA, want on copyright.
I fear the latter because the Americans are obsessed by copyright dominance. In the end, a big American company can alway make or buy a new satellite somewhere - but international copyright hegemony is at or near the top of the USA wish list.
Let's hope this Government is resolute and consistent.
HK
Thursday, April 10, 2008
"Is Three-Strikes Out?"
The "three strikes and you're out" proposal to banish those who content owners think are infringers from internet access appears to be in trouble in Europe. The threat is most serious in France.
See the IP-Watch report here.
Make no mistake - the big content companies are trying to re-configure the internet in order to assert control over content. If they can't sue users, they want to be able to banish them - without judicial safeguards. This could make the DMCA look like a Sunday school picnic.
The French proposal was being touted at Fordham by Michael Einhorn who frequently takes positions that are friendly to the record industry - and was most unconvincing in my view.
HK
See the IP-Watch report here.
Make no mistake - the big content companies are trying to re-configure the internet in order to assert control over content. If they can't sue users, they want to be able to banish them - without judicial safeguards. This could make the DMCA look like a Sunday school picnic.
The French proposal was being touted at Fordham by Michael Einhorn who frequently takes positions that are friendly to the record industry - and was most unconvincing in my view.
HK
Wednesday, April 09, 2008
CMEC is on the defensive re "Implied Licence"
CMEC is once again on the defensive, now about the doctrine of “implied licence” or “implied license.” Note the two different spellings for research purposes.
CMEC says in its Copyright Bulletin #5 that:
It comes down to the fact that the implied licence is a theoretical concept whose scope
has never been explained by Canadian courts.
(emphasis added)
Well, the fact is that the doctrine has been mentioned and discussed in too many Canadian and UK cases to count. Just about everyone except CMEC seems to understand what it means. Most concepts in law have a “theoretical” basis, but this one has also had a very practical existence in IP law for 137 years, as I outlined recently.
Most notably in the current context, the Supreme Court of Canada has explicitly recognized it in at least two copyright cases:
Netupsky et al. v. Dominion Bridge Co. Ltd. (1971) 3 C.P.R. (2d) 1 (SCC)
and
Robertson v. Thomson Corp., [2006] 2 S.C.R. 363
It is dealt with repeatedly in the lower court decisions in CCH v. LSUC. The Supremes didn’t need to deal with it as such when that case arrived upstairs.
Plus many, many more cases in all areas of IP law.
Not to mention last week’s decision in the UK Court of Appeal in Brooker v. Fisher (the Procol Harum/Whiter Shade of Pale decision). In that decision, the UK Court of Appeal held, inter alia, that the plaintiff organist had given an implied license to the defendants and sat on it for far too long to be able to revoke it.
Those responsible for policy and taxpayers’ expenditures at CMEC may wish to actually read these cases, not to mention the landmark decision in CCH v. LSUC that CMEC still fails to appreciate.
CMEC wants legal certainty. However, the educational establishment has very little risk of being sued for normal use of the internet. If a school were to be sued for doing what everyone has been doing for a decade or more and is still doing and if CMEC were to retain vigorous and expert litigation counsel, it would have a very good chance of winning such litigation. In the unlikely event it were lose, then Parliament would surely step into the breach.
The Law Society did not seek a special amendment when confronted by CanCopy (i.e. Excess - oops - I mean Access Copyright before it changed its name) over the issues in the CCH v. LSUC case, which were far more pressing and far less certain in terms of outcome. It fought. And it won. And, frankly, its case was not nearly as strong as CMEC’s case would be in this instance. Now that it is long since over, it can be said that some of us were rather worried that the Law Society might actually lose the case on one or more key grounds. But it fought and prevailed. CMEC has vastly more resources even than the Law Society of Upper Canada to stand up to Access Copyright, if necessary. And a far stronger case, based upon what is now apparent. And no actual threat in sight.
I say all of this because not only am I a copyright lawyer but because I am a taxpayer - and every penny that CMEC spends for better or worse comes from me and other taxpayers. And I don’t want my internet bill to go up because of the inevitable tariff that Access Copyright will file due to the a contrario implications of this proposal, if enacted.
I'm quite confident that Canada's professional teachers in the classroom would really like to teach creatively and to use the internet in innovative and responsible ways. Their management and CMEC should be fighting for their right to do so and to defend them if necessary. In this light, CMEC's apparent obsession with avoidance of any risk of any kind is difficult to understand. However, it is nothing if not consistent with the extraordinarily and unnecessarily cautious approach advocated by Wanda Noel and Gerald Breau in Copyright Matters!, which is published by CMEC.
CMEC's position on the educational internet exception will play into the hands of Access Copyright by implying that everyone outside the educational tent is liable to pay for these same or similar practices and will weaken rights already in place for teachers and students, as I pointed out before.
In any case, I’m confident there is probably a greater risk of being fatally struck by lightning or otherwise killed on the way to work than a school board being successfully sued by Access Copyright for reasonable educational use of publicly available material on the internet. About one in every 6 million Canadians will be struck by lightning each year, if American statistics are any basis. So far, Access Copyright - litigious as it is and reckless as it has been in its litigation - has never actually sued an educational institution in Canada as far as I know - despite threats.
Instead of seeking broad and useful "such as" or "including" wording as exists in the §107 of the US legislation, CMEC has embarked on what is clearly an expensive and divisive preemptive campaign now several years old that - if successful - would likely give its members at the end of the day even less rights than they already have, likely ruin the law of fair dealing for everyone else, and likely ultimately benefit Access Copyright.
Maybe their next bulletin will explain why. Their last five bulletins have certainly not done so.
HK
CMEC says in its Copyright Bulletin #5 that:
It comes down to the fact that the implied licence is a theoretical concept whose scope
has never been explained by Canadian courts.
(emphasis added)
Well, the fact is that the doctrine has been mentioned and discussed in too many Canadian and UK cases to count. Just about everyone except CMEC seems to understand what it means. Most concepts in law have a “theoretical” basis, but this one has also had a very practical existence in IP law for 137 years, as I outlined recently.
Most notably in the current context, the Supreme Court of Canada has explicitly recognized it in at least two copyright cases:
Netupsky et al. v. Dominion Bridge Co. Ltd. (1971) 3 C.P.R. (2d) 1 (SCC)
and
Robertson v. Thomson Corp., [2006] 2 S.C.R. 363
It is dealt with repeatedly in the lower court decisions in CCH v. LSUC. The Supremes didn’t need to deal with it as such when that case arrived upstairs.
Plus many, many more cases in all areas of IP law.
Not to mention last week’s decision in the UK Court of Appeal in Brooker v. Fisher (the Procol Harum/Whiter Shade of Pale decision). In that decision, the UK Court of Appeal held, inter alia, that the plaintiff organist had given an implied license to the defendants and sat on it for far too long to be able to revoke it.
Those responsible for policy and taxpayers’ expenditures at CMEC may wish to actually read these cases, not to mention the landmark decision in CCH v. LSUC that CMEC still fails to appreciate.
CMEC wants legal certainty. However, the educational establishment has very little risk of being sued for normal use of the internet. If a school were to be sued for doing what everyone has been doing for a decade or more and is still doing and if CMEC were to retain vigorous and expert litigation counsel, it would have a very good chance of winning such litigation. In the unlikely event it were lose, then Parliament would surely step into the breach.
The Law Society did not seek a special amendment when confronted by CanCopy (i.e. Excess - oops - I mean Access Copyright before it changed its name) over the issues in the CCH v. LSUC case, which were far more pressing and far less certain in terms of outcome. It fought. And it won. And, frankly, its case was not nearly as strong as CMEC’s case would be in this instance. Now that it is long since over, it can be said that some of us were rather worried that the Law Society might actually lose the case on one or more key grounds. But it fought and prevailed. CMEC has vastly more resources even than the Law Society of Upper Canada to stand up to Access Copyright, if necessary. And a far stronger case, based upon what is now apparent. And no actual threat in sight.
I say all of this because not only am I a copyright lawyer but because I am a taxpayer - and every penny that CMEC spends for better or worse comes from me and other taxpayers. And I don’t want my internet bill to go up because of the inevitable tariff that Access Copyright will file due to the a contrario implications of this proposal, if enacted.
I'm quite confident that Canada's professional teachers in the classroom would really like to teach creatively and to use the internet in innovative and responsible ways. Their management and CMEC should be fighting for their right to do so and to defend them if necessary. In this light, CMEC's apparent obsession with avoidance of any risk of any kind is difficult to understand. However, it is nothing if not consistent with the extraordinarily and unnecessarily cautious approach advocated by Wanda Noel and Gerald Breau in Copyright Matters!, which is published by CMEC.
CMEC's position on the educational internet exception will play into the hands of Access Copyright by implying that everyone outside the educational tent is liable to pay for these same or similar practices and will weaken rights already in place for teachers and students, as I pointed out before.
In any case, I’m confident there is probably a greater risk of being fatally struck by lightning or otherwise killed on the way to work than a school board being successfully sued by Access Copyright for reasonable educational use of publicly available material on the internet. About one in every 6 million Canadians will be struck by lightning each year, if American statistics are any basis. So far, Access Copyright - litigious as it is and reckless as it has been in its litigation - has never actually sued an educational institution in Canada as far as I know - despite threats.
Instead of seeking broad and useful "such as" or "including" wording as exists in the §107 of the US legislation, CMEC has embarked on what is clearly an expensive and divisive preemptive campaign now several years old that - if successful - would likely give its members at the end of the day even less rights than they already have, likely ruin the law of fair dealing for everyone else, and likely ultimately benefit Access Copyright.
Maybe their next bulletin will explain why. Their last five bulletins have certainly not done so.
HK
Thursday, April 03, 2008
Reflections from Fordham - 2008
The annual Fordham International Intellectual Property Law and Policy Conference has just taken place, as always The First Thursday and Friday After Easter.™ The following is a very limited and personal take on a very complex and comprehensive conference.
The Canadian Panel:
Once again, through a lot of hard work, we’ve been able to convince Prof. Hugh Hansen (the conference director) to put on a provocative and balanced panel on Canadian copyright law. This is despite the fact that Canada has been crying “wolf” on new legislation for several years now.
This year, the panel consisted of:
1. Prof. Daniel Gervais, who talked mainly about the 2007 Kraft decision from the Supreme Court of Canada (a favourite case of mine because I made the prevailing argument).
2. Justice William Vancise, the Chairman of the Copyright Board, who chose to speak and write about “What are "adequate reasons" in a Decision of the Canadian Copyright Board? To what Degree Should Appellate Courts Defer to the Expertise of Specialized Tribunals? And Do They?”
3. Steve Metalitz, the lawyer/lobbyist for the Washington based International Intellectual Property Alliance (“IIPA”) which has recommended Canada for the “section 301 priority watch list” for 2008, who spoke about why he believes that this is justified. He focussed, inter alia, on Canada’s lack of implementation and ratification of the 1996 WIPO Treaties and the alleged inadequacies of Canadian enforcement, particularly regarding border measures. Since the IIPA is effectively the privatized research arm of the USTR for “301" purposes, it was good to have Steve on this panel.
4. Myself, who spoke and wrote (see my paper) about why the IIPA’s and similar positions from CRIA and the American government are not justified, and why the USA should look in the mirror and find a way to put itself at or near the top of its own “priority watch list” in terms of weaknesses in its own copyright law and violation of existing treaty obligations. I have now identified 15 areas in which Canadian law is already stronger and better than American law, and which result in many cases in very large outflows of payments to American corporate interests. None of these was refuted. I also pointed out that while Israel bravely rebuts the USA’s “301" reports, Canada simply does not take them seriously and the WTO has ruled that the USA cannot take any unilateral action beyond rhetoric with respect to its “301" mechanism. Moreover, the USA is arguably in violation of the Berne Convention with respect to moral rights and other important matters, and has been adjudicated to be and clearly intends to remain in violation in respect of its notorious exemption of small business establishments from the need to pay performing rights royalties.
5. Richard Pfohl from CRIA, who reiterated CRIA’s usual positions. Since CRIA, which essentially represents the big four foreign record companies, is apparently by far the most vociferous so-called “Canadian” copyright lobbyist organization, it was useful for Richard to be on the panel.
Apart from the very frank and, frankly, very unusual remarks and paper by Justice Vancise criticizing the Federal Court of Appeal, which reviews his Copyright Board, there were no real surprises from the speakers.
There were some very worthy comments from the audience, as often happens at Fordham where the audience members are often at least as expert and engaged as the speakers and panelists.
Mario Bouchard, the General Counsel of Canada’s Copyright Board, pointed out that the fact that it has been 12 years since the WIPO treaties came about in Geneva and that Canada has still not implemented and ratified them showed that there can hardly be said to be a Canadian consensus on these issues. He also pointed out that it took the USA 102 years to join the Berne Convention, so the USA ought not be too critical about a 12 year delay on Canada’s part in respect of the 1996 WIPO treaties.
Justice Roger Hughes of the Canadian Federal Court commented from the audience in response to Steve Metalitz’s suggestion that Canada lacks adequate and effective border measures and should provide “ex officio” seizures (i.e. seizures that bypass the Courts and let customs officials seize allegedly pirated or counterfeit goods). According to Mr. Metalitz, the current system doesn’t work. Justice Hughes pointed out that this was simply wrong and that judicial orders for seizures were readily available when appropriate – and that those seeking such a change should “stop whining” and just “roll up their sleeves” in order to use the current system. He indicated that he had signed three such orders at the request of Microsoft just in the last week.
Other Notable Aspects from Fordham
Once again, Justice Rogers Hughes from Canada’s Federal Court, who was a highly renowned and experienced litigator and author in all areas of IP prior to his appointment to the Bench in 2005, joined the Fordham Faculty on patent law sessions. One hopes that he will become a “regular” at Fordham in the tradition of Lord Jacob, Sir Hugh Laddie, Lord Hoffman, Pauline Newman, Randall Rader, and other distinguished expert judges.
Speaking of which, there was a remembrance of the Rt. Hon. Lord Justice Pumfrey a popular and very expert judge from the UK, who passed away suddenly on Christmas eve last, shortly after his elevation to the Court of Appeal.
There was a remarkable panel of General Counsel organized by Brad Smith of Microsoft, an old friend and frequent presenter at Fordham long before he became GC and Senior VP of Microsoft. The panel included the GCs/VPs from Time Warner, NBC Universal, Viacom and New Corps. Such an array of distinguished GC’s on one public panel is rare, if not unique. But it’s too bad that Google and Verizon weren’t there. The panel could have been much more balanced, especially because virtually all these GCs were extolling the development of “cooperation” with ISPs in curtailing piracy and saying much the same thing as each other otherwise. The panel fuelled fears that traffic shaping and other interference with net neutrality could be much more about IP enforcement than network management.
I managed to get them rather defensive when I mentioned that traffic shaping and “cooperation” has “throttled” CBC’s innovative attempt a few days earlier to use BitTorrent for a perfectly legitimate purpose - which their own companies might want to consider at some point. Tom Rubin, another senior Microsoft lawyer, later provided a rather thoughtful comment on this in another panel indicating that ways should be found to make sure that legitimate uses of innovative technology should not be hindered.
Ironically, virtually at the same time the GC panel was going on, Comcast in the USA announced that it was backing off from its plans to throttle the internet.
(Meanwhile, Canada - which has virtually no real competition in broadband internet service - and no evident willingness on the part of part of the Government or regulators to deal with this issue - is plunging further into the abyss of throttled and inferior internet service at very high prices.)
Another high point was the appearance of Ray Beckerman, the fearless New York trial lawyer from a small firm who is fighting the RIAA litigation campaign against children, dead grandmothers and 20,000 or so other ordinary victims on many fronts and who has a fabulous blog and data base of info on the RIAA’s litigation. Hugh Hansen gave Ray more than the usual ordeal by fire, which often greets anyone at Fordham who dares to question the establishment point of view. I get it every year. But Hugh does in fact invite strong and outspoken anti-establishment points of view- unlike certain Canadian conference organizers - and I trust that Hugh’s apparent righteous indignation (with more than a little twinkle in his eye) was his way of showing his seal of approval. He only gets this excited when things become electrified and polarized - which he likes to see. Ray stood up very well and then some - and I hope he’ll be back. Here’s Ray’s take on the P2P and related issue sessions. His RIAA opponent, Kenneth Doroshow, took the perfectly absurd position that Jammie Thomas had caused untold millions of dollars of damages, even though there wasn’t a shred of evidence that anyone other than the RIAA investigator had downloaded anything from her - and that $9,250 damages per song was therefore not such a high figure. No wonder people ridicule the RIAA and that the RIAA is giving copyright as we know it a very bad name. Pam Samuelson outlined how the whole statutory damages regime could crumble on a constitutional basis, something I’ve been saying for years. I’m glad I’m in such good company.
Additional high points were the participation of Alex Macgillvary, an associate general counsel of Google who is a Canadian and a Harvard grad and a very eloquent spokesperson for balanced copyright.
An new and important voice was also added from Israel - Mr. Tamir Afori. He is the official most responsible for the new Israeli Copyright Act, which has a brilliant solution to the problem of statutory damages (no minimum - USD $28,000 max) and fair use provisions very similar to those of the USA, which the IIPA has soundly criticized since that is not a feature of US law that they wish to see emulated. Israel has also stood its ground on TPMs and WIPO ratification. Canada would do well to look more closely at the new Israeli law and to invite Mr. Afori to come to Canada and tell us more. It is refreshing to see that the Israeli government listens to its professional civil servants, more so than certain other governments.
There was much talk about fair use, and a major new study on limitations and exceptions by Bernt Hugenholtz and Ruth Okediji.
And there was the usual rich three ring or more circus of simultaneous sessions on patents, trade-marks, copyright, competition law, etc. And much, much more - too much to talk about. I’m still recovering. Fordham was, as always, an exhausting but immensely rewarding experience. You cannot learn more about IP anywhere in two days than you can at Fordham - where you will be up to date with key developments from around the world - including Canada - and you will meet many of the most influential judges, officials, lawyers and academics who actually made these developments happen.
Update - the list of faculty and some of the papers (requires a password) are now at the Fordham conference website.
HK
The Canadian Panel:
Once again, through a lot of hard work, we’ve been able to convince Prof. Hugh Hansen (the conference director) to put on a provocative and balanced panel on Canadian copyright law. This is despite the fact that Canada has been crying “wolf” on new legislation for several years now.
This year, the panel consisted of:
1. Prof. Daniel Gervais, who talked mainly about the 2007 Kraft decision from the Supreme Court of Canada (a favourite case of mine because I made the prevailing argument).
2. Justice William Vancise, the Chairman of the Copyright Board, who chose to speak and write about “What are "adequate reasons" in a Decision of the Canadian Copyright Board? To what Degree Should Appellate Courts Defer to the Expertise of Specialized Tribunals? And Do They?”
3. Steve Metalitz, the lawyer/lobbyist for the Washington based International Intellectual Property Alliance (“IIPA”) which has recommended Canada for the “section 301 priority watch list” for 2008, who spoke about why he believes that this is justified. He focussed, inter alia, on Canada’s lack of implementation and ratification of the 1996 WIPO Treaties and the alleged inadequacies of Canadian enforcement, particularly regarding border measures. Since the IIPA is effectively the privatized research arm of the USTR for “301" purposes, it was good to have Steve on this panel.
4. Myself, who spoke and wrote (see my paper) about why the IIPA’s and similar positions from CRIA and the American government are not justified, and why the USA should look in the mirror and find a way to put itself at or near the top of its own “priority watch list” in terms of weaknesses in its own copyright law and violation of existing treaty obligations. I have now identified 15 areas in which Canadian law is already stronger and better than American law, and which result in many cases in very large outflows of payments to American corporate interests. None of these was refuted. I also pointed out that while Israel bravely rebuts the USA’s “301" reports, Canada simply does not take them seriously and the WTO has ruled that the USA cannot take any unilateral action beyond rhetoric with respect to its “301" mechanism. Moreover, the USA is arguably in violation of the Berne Convention with respect to moral rights and other important matters, and has been adjudicated to be and clearly intends to remain in violation in respect of its notorious exemption of small business establishments from the need to pay performing rights royalties.
5. Richard Pfohl from CRIA, who reiterated CRIA’s usual positions. Since CRIA, which essentially represents the big four foreign record companies, is apparently by far the most vociferous so-called “Canadian” copyright lobbyist organization, it was useful for Richard to be on the panel.
Apart from the very frank and, frankly, very unusual remarks and paper by Justice Vancise criticizing the Federal Court of Appeal, which reviews his Copyright Board, there were no real surprises from the speakers.
There were some very worthy comments from the audience, as often happens at Fordham where the audience members are often at least as expert and engaged as the speakers and panelists.
Mario Bouchard, the General Counsel of Canada’s Copyright Board, pointed out that the fact that it has been 12 years since the WIPO treaties came about in Geneva and that Canada has still not implemented and ratified them showed that there can hardly be said to be a Canadian consensus on these issues. He also pointed out that it took the USA 102 years to join the Berne Convention, so the USA ought not be too critical about a 12 year delay on Canada’s part in respect of the 1996 WIPO treaties.
Justice Roger Hughes of the Canadian Federal Court commented from the audience in response to Steve Metalitz’s suggestion that Canada lacks adequate and effective border measures and should provide “ex officio” seizures (i.e. seizures that bypass the Courts and let customs officials seize allegedly pirated or counterfeit goods). According to Mr. Metalitz, the current system doesn’t work. Justice Hughes pointed out that this was simply wrong and that judicial orders for seizures were readily available when appropriate – and that those seeking such a change should “stop whining” and just “roll up their sleeves” in order to use the current system. He indicated that he had signed three such orders at the request of Microsoft just in the last week.
Other Notable Aspects from Fordham
Once again, Justice Rogers Hughes from Canada’s Federal Court, who was a highly renowned and experienced litigator and author in all areas of IP prior to his appointment to the Bench in 2005, joined the Fordham Faculty on patent law sessions. One hopes that he will become a “regular” at Fordham in the tradition of Lord Jacob, Sir Hugh Laddie, Lord Hoffman, Pauline Newman, Randall Rader, and other distinguished expert judges.
Speaking of which, there was a remembrance of the Rt. Hon. Lord Justice Pumfrey a popular and very expert judge from the UK, who passed away suddenly on Christmas eve last, shortly after his elevation to the Court of Appeal.
There was a remarkable panel of General Counsel organized by Brad Smith of Microsoft, an old friend and frequent presenter at Fordham long before he became GC and Senior VP of Microsoft. The panel included the GCs/VPs from Time Warner, NBC Universal, Viacom and New Corps. Such an array of distinguished GC’s on one public panel is rare, if not unique. But it’s too bad that Google and Verizon weren’t there. The panel could have been much more balanced, especially because virtually all these GCs were extolling the development of “cooperation” with ISPs in curtailing piracy and saying much the same thing as each other otherwise. The panel fuelled fears that traffic shaping and other interference with net neutrality could be much more about IP enforcement than network management.
I managed to get them rather defensive when I mentioned that traffic shaping and “cooperation” has “throttled” CBC’s innovative attempt a few days earlier to use BitTorrent for a perfectly legitimate purpose - which their own companies might want to consider at some point. Tom Rubin, another senior Microsoft lawyer, later provided a rather thoughtful comment on this in another panel indicating that ways should be found to make sure that legitimate uses of innovative technology should not be hindered.
Ironically, virtually at the same time the GC panel was going on, Comcast in the USA announced that it was backing off from its plans to throttle the internet.
(Meanwhile, Canada - which has virtually no real competition in broadband internet service - and no evident willingness on the part of part of the Government or regulators to deal with this issue - is plunging further into the abyss of throttled and inferior internet service at very high prices.)
Another high point was the appearance of Ray Beckerman, the fearless New York trial lawyer from a small firm who is fighting the RIAA litigation campaign against children, dead grandmothers and 20,000 or so other ordinary victims on many fronts and who has a fabulous blog and data base of info on the RIAA’s litigation. Hugh Hansen gave Ray more than the usual ordeal by fire, which often greets anyone at Fordham who dares to question the establishment point of view. I get it every year. But Hugh does in fact invite strong and outspoken anti-establishment points of view- unlike certain Canadian conference organizers - and I trust that Hugh’s apparent righteous indignation (with more than a little twinkle in his eye) was his way of showing his seal of approval. He only gets this excited when things become electrified and polarized - which he likes to see. Ray stood up very well and then some - and I hope he’ll be back. Here’s Ray’s take on the P2P and related issue sessions. His RIAA opponent, Kenneth Doroshow, took the perfectly absurd position that Jammie Thomas had caused untold millions of dollars of damages, even though there wasn’t a shred of evidence that anyone other than the RIAA investigator had downloaded anything from her - and that $9,250 damages per song was therefore not such a high figure. No wonder people ridicule the RIAA and that the RIAA is giving copyright as we know it a very bad name. Pam Samuelson outlined how the whole statutory damages regime could crumble on a constitutional basis, something I’ve been saying for years. I’m glad I’m in such good company.
Additional high points were the participation of Alex Macgillvary, an associate general counsel of Google who is a Canadian and a Harvard grad and a very eloquent spokesperson for balanced copyright.
An new and important voice was also added from Israel - Mr. Tamir Afori. He is the official most responsible for the new Israeli Copyright Act, which has a brilliant solution to the problem of statutory damages (no minimum - USD $28,000 max) and fair use provisions very similar to those of the USA, which the IIPA has soundly criticized since that is not a feature of US law that they wish to see emulated. Israel has also stood its ground on TPMs and WIPO ratification. Canada would do well to look more closely at the new Israeli law and to invite Mr. Afori to come to Canada and tell us more. It is refreshing to see that the Israeli government listens to its professional civil servants, more so than certain other governments.
There was much talk about fair use, and a major new study on limitations and exceptions by Bernt Hugenholtz and Ruth Okediji.
And there was the usual rich three ring or more circus of simultaneous sessions on patents, trade-marks, copyright, competition law, etc. And much, much more - too much to talk about. I’m still recovering. Fordham was, as always, an exhausting but immensely rewarding experience. You cannot learn more about IP anywhere in two days than you can at Fordham - where you will be up to date with key developments from around the world - including Canada - and you will meet many of the most influential judges, officials, lawyers and academics who actually made these developments happen.
Update - the list of faculty and some of the papers (requires a password) are now at the Fordham conference website.
HK
Tuesday, April 01, 2008
Life + 343 years
Nicholas Poussin (1594-1665) was perhaps the greatest landscape painter - ever. There is currently a fabulous exhibition of his works at the Metropolitan in New York. There is a prominent “no photography” sign. I saw a security guard stop someone who tried to take a picture. The Met normally allows photography just about everywhere, provided that no flash is used - which is sensible both for preservation and politeness reasons.
So - I asked the security guard why the policy was different here. “Because of copyright”, he explained. We had a good chat about this - he was a very bright young man. He explained that the pictures were mostly on loan - and that was why this situation was different. So - I presume that this was a condition imposed by contract from the lenders. That would be within the lenders rights, though the purpose would seem unclear. If so, I would wonder why the Met would agree to the condition.
The management had apparently explained it to him as a matter of copyright.
Call it “respect for copyright” or perhaps creeping term extension. In this case, life plus 343 years.
HK
So - I asked the security guard why the policy was different here. “Because of copyright”, he explained. We had a good chat about this - he was a very bright young man. He explained that the pictures were mostly on loan - and that was why this situation was different. So - I presume that this was a condition imposed by contract from the lenders. That would be within the lenders rights, though the purpose would seem unclear. If so, I would wonder why the Met would agree to the condition.
The management had apparently explained it to him as a matter of copyright.
Call it “respect for copyright” or perhaps creeping term extension. In this case, life plus 343 years.
HK
Friday, March 21, 2008
Canada, Israel, 301, Pro Patria and Pro Patry
Bill Patry has a great blog today about Israel, Canada and the U.S. "301" watch list, or "wish list", as Bill calls it. He says:
HK
Of course, even large countries like Canada have been threatened: the U.S. is reported to have told Canada that the U.S. won’t do anything Canada wants in other areas unless Canada adheres to the WIPO treaties in the exact form that the U.S. has, and that such implementation is the highest priority in U.S.–Canada relations. That’s ridiculous bluster. I hope that the example of Israel, a much smaller and very vulnerable nation, standing up to the IIPA inspires the Canadians in drafting their anticipated copyright reform legislation. And one thing that might strengthen Canadian resolve is the experience of Israel with the migration of the watch list into an evolving wish list.Read his whole blog. Canada should welcome the constructive attention of a great American scholar such as Bill Patry. With a few notable exceptions, Canadian copyright scholars have been too quiet for too long on too many of these issues.
HK
Thursday, March 20, 2008
Thursday, March 13, 2008
THE CMEC RED HERRING
CMEC is spending a lot of political capital on its campaign for a special education exception for use of the internet, using reasoning that Prof. Michael Geist bluntly and succinctly describes as “utter nonsense” and which Prof. Sam Trosow has dissected in greater detail.
One wonders whether CMEC is aware of the following:
• Since 1871, there has been a firmly established doctrine of “implied license” in the law of intellectual property, which holds that when somebody has acquired something that was put on the market by the rights holder, that person can use it as they wish, absent some clearly binding agreement to the contrary. Here’s the original wording as repeated recently in the House of Lords by Lord Hoffmann:
The CMEC position is oblivious to one of the most lucid and empowering landmark decisions of any court anywhere anytime with respect to users’ rights, which holds that” "Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained.” Our Supreme Court in the CCH v. LSUC case in the words of its Chief Justice as unanimously concurred in by her colleagues was willing to allow law firms to make copies for commercial research purposes. The legal profession routinely makes multiple copies of entire works. For example, the rules of the Supreme Court itself require 24 copies of everything in the “record.” So, why is CMEC so worried about lawsuits reaching into K-12 classrooms for activity that is clearly either explicitly or impliedly permitted by the person posting it on the internet? Why does CMEC want to gild this extraordinary lily from the Supreme Court with an unnecessary and counterproductive amendment?
How will CMEC justify to everyone else outside its tent that there is an inevitable “a contrario” implication of their amendment, i.e. that everyone not in their tent must now get ready to pay an undoubtedly eager and ready collective known as Access Copyright, which would benefit greatly from the curtailment of the CCH decision that would result from CMEC’s proposed amendment? Does CMEC not appreciate that this process will almost certainly do it no good, the general public and corporate Canada much harm, and be of great benefit to Access Copyright?
Instead of potentially harming everyone else in Canada and weakening if not undoing the CCH v. LSUC decision, why doesn’t CMEC ask simply for what the Americans have enjoyed for years - which is immunity for educators from statutory damages where there is a good faith belief in fair use (or fair dealing in Canada’s case) and an explicit “classroom” exception, such as is found in §107 of the US legislation? Here’s the US provision. If CMEC and AUCC really want more certainty, which nobody else thinks they need, they it should ask for something along the lines of the emphasized wording to be included in a list of “such as” examples of fair dealing:
Who knows what wording we may seen in the new bill? Hopefully, nothing along the above lines.
HPK
One wonders whether CMEC is aware of the following:
• Since 1871, there has been a firmly established doctrine of “implied license” in the law of intellectual property, which holds that when somebody has acquired something that was put on the market by the rights holder, that person can use it as they wish, absent some clearly binding agreement to the contrary. Here’s the original wording as repeated recently in the House of Lords by Lord Hoffmann:
Put shortly, the problem is to explain why, for example, a patentee cannot not complain when someone to whom he had sold the patented product then, without any further consent, uses it or disposes of it to someone else. The answer given by Lord Hatherley L.C. in the leading case of Betts v. Willmott (1871) L.R. 6 Ch. App. 239, 245 (which concerned the resale of a patented product) was that he did so by virtue of an implied licence.
"I apprehend that, inasmuch as [the patentee] has the right of vending the goods in France or Belgium or England, or in any other quarter of the globe, he transfers with the goods necessarily the licence to use them wherever the purchaser pleases. When a man has purchased an article he expects to have the control of it, and there must be some clear and explicit agreement to the contrary to justify the vendor in saying that he has not given the purchaser his licence to sell the article, or to use it wherever he pleases as against himself."• That decision has been followed innumerable times in other IP contexts and cases. Translated into the current context, one can reasonably assume that when a newspaper or anyone else puts something on the internet without a pay wall or other TPM and especially if the site includes a “print” or “e-mail” or similar explicit invitation, the user can do just that. Everyone knows how to cut, paste and save material from the internet - and everyone who posts material knows that it can and will be used that way. With or without a “print” or “e-mail” button, it is child’s play to use the browser menu to do just that.
(emphasis added)
The CMEC position is oblivious to one of the most lucid and empowering landmark decisions of any court anywhere anytime with respect to users’ rights, which holds that” "Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained.” Our Supreme Court in the CCH v. LSUC case in the words of its Chief Justice as unanimously concurred in by her colleagues was willing to allow law firms to make copies for commercial research purposes. The legal profession routinely makes multiple copies of entire works. For example, the rules of the Supreme Court itself require 24 copies of everything in the “record.” So, why is CMEC so worried about lawsuits reaching into K-12 classrooms for activity that is clearly either explicitly or impliedly permitted by the person posting it on the internet? Why does CMEC want to gild this extraordinary lily from the Supreme Court with an unnecessary and counterproductive amendment?
How will CMEC justify to everyone else outside its tent that there is an inevitable “a contrario” implication of their amendment, i.e. that everyone not in their tent must now get ready to pay an undoubtedly eager and ready collective known as Access Copyright, which would benefit greatly from the curtailment of the CCH decision that would result from CMEC’s proposed amendment? Does CMEC not appreciate that this process will almost certainly do it no good, the general public and corporate Canada much harm, and be of great benefit to Access Copyright?
Instead of potentially harming everyone else in Canada and weakening if not undoing the CCH v. LSUC decision, why doesn’t CMEC ask simply for what the Americans have enjoyed for years - which is immunity for educators from statutory damages where there is a good faith belief in fair use (or fair dealing in Canada’s case) and an explicit “classroom” exception, such as is found in §107 of the US legislation? Here’s the US provision. If CMEC and AUCC really want more certainty, which nobody else thinks they need, they it should ask for something along the lines of the emphasized wording to be included in a list of “such as” examples of fair dealing:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —Instead, the following is what we can surmise that CMEC and AUCC want to get, according to a paper recently published in (2007) 23 C.I.P.R. 1 by Wanda Noel and Steve Wills, who respectively advise CMEC and AUCC:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The education amendment would permit an educational institution or a person acting under its authority, including a student, to do the following acts in relation to all or part of a work or other subject matter that has been made publicly available on a communication network, provided the act is done in a place where a student is participating in a program of learning under the authority of an educational institution, for not-for-profit educational or training purposes, and provided that the source is mentioned, and, if given in the source, the name of the author, performer, maker, or broadcaster:Ironically, if this is what CMEC is asking for, it would almost certainly end up giving educators and students far less rights than they already have. For example, as drafted this suggests that the exception doesn’t even apply to the student or teacher doing at home what they supposedly could do at the institution under the exception but which they almost certainly can do now anywhere without the exception. Go figure.
1. use a computer for reproduction, including making multiple reproductions for use in a course for instruction;
2. perform in public before an audience consisting primarily of students of the educational institution, instructors acting under the authority of the educational institution, or any person who is directly responsible for setting curriculum for the educational institution; and
3. communicate to the public by telecommunication to or from a place where a person is participating in a program of learning under the authority of an educational institution.
Who knows what wording we may seen in the new bill? Hopefully, nothing along the above lines.
HPK
Wednesday, March 12, 2008
Israel's Clever Statutory Damages Provision
Israel has come up with an interesting and clever twist on statutory minimum damages. It allows for damages of up to approximately the equivalent of USD $27,000 - but notably has no minimum. It also specifies that several infringements that are “part of a set of activities shall be deemed as a single infringement.” This would appear to greatly reduce the risk of a perverse and absurd result such as the $227,000 jury verdict against Jamie Thomas that worked out to more than $9,000 for every song she allegedly downloaded.
The statutory damages provision affects and infects numerous areas in Canadian copyright law, even though it has actually been applied only very rarely. It has made many educators and librarians led by CMEC who are already too risk averse even more nervous about doing there jobs and perhaps contributed to their belief that they need to seek an special exception for use of the internet, which many of us believe is unnecessary and harmful. Instead, they should focus on revising the statutory damages provisions, as should many others who are rightly or wrongly fearful of their application or misapplication. In the USA, from whom we copied the idea of statutory damages, educators basically get a free pass if they can show a bona fide belief that their activity constituted fair use. No such provision exists in Canada.
Anyway, here’s the Israeli provision which will come into effect in May. Israel’s previous law had a statutory damages minimum of app. USD $2,700 - which has now been eliminated. Israel’s old law was based on the 1911 UK law, as is Canada’s. The upper limit now is fairly high and could lead to greatly disproportionate awards - but appears to have some constraints on its application. Here it is:
I thank Israeli colleagues, David Mirchin, for bringing this to my attention and Neil Wilkof for providing a copy of the unofficial translation of the new legislation some time ago and to Michael Birnhack for providing a link to an unofficial translation which is here.
HPK
The statutory damages provision affects and infects numerous areas in Canadian copyright law, even though it has actually been applied only very rarely. It has made many educators and librarians led by CMEC who are already too risk averse even more nervous about doing there jobs and perhaps contributed to their belief that they need to seek an special exception for use of the internet, which many of us believe is unnecessary and harmful. Instead, they should focus on revising the statutory damages provisions, as should many others who are rightly or wrongly fearful of their application or misapplication. In the USA, from whom we copied the idea of statutory damages, educators basically get a free pass if they can show a bona fide belief that their activity constituted fair use. No such provision exists in Canada.
Anyway, here’s the Israeli provision which will come into effect in May. Israel’s previous law had a statutory damages minimum of app. USD $2,700 - which has now been eliminated. Israel’s old law was based on the 1911 UK law, as is Canada’s. The upper limit now is fairly high and could lead to greatly disproportionate awards - but appears to have some constraints on its application. Here it is:
Canada should consider this precedent very carefully.
56. Damages without Proof of Injury
(a) Where a copyright or moral right has been infringed, the court may, at the claimant's request, award to the claimant, in respect of each infringement, damages without proof of injury, in an amount not exceeding 100,000 NIS.
(b) In awarding damages pursuant to the provisions of subparagraph (a), the court may consider, inter alia, the following considerations:
(1) The scope of the infringement;
(2) The duration during which the infringement continued;
(3) The severity of the infringement;
(4) The actual injury caused to the claimant according to the assessment of the court;
(5) The benefit derived by the defendant from the infringement, according the assessment of the court;
(6) The character of the defendant's activity;
(7) The nature of the relationship between the defendant and the claimant.
(8) Good faith of the defendant.
(c) For purposes of this paragraph infringements carried out as part of a set of activities shall be deemed as a single infringement.
(d) The Minister may, by Order, change the amount prescribed in subparagraph (a).
I thank Israeli colleagues, David Mirchin, for bringing this to my attention and Neil Wilkof for providing a copy of the unofficial translation of the new legislation some time ago and to Michael Birnhack for providing a link to an unofficial translation which is here.
HPK
Tuesday, March 11, 2008
More on WIPO SCCR - "Do as we say, not as we do..."
Here's the KEI report.
Here's IP-Watch.
In a nutshell, the Broadcasters' Rights proposed treaty isn't dead yet...
And the attempt by Chile and others to promote a meaningful initiative on clarifying norms on limitations and exceptions is being opposed by the usual vested interests who are saying, in effect, "do as we say, not as we do."
HPK
Here's IP-Watch.
In a nutshell, the Broadcasters' Rights proposed treaty isn't dead yet...
And the attempt by Chile and others to promote a meaningful initiative on clarifying norms on limitations and exceptions is being opposed by the usual vested interests who are saying, in effect, "do as we say, not as we do."
HPK
Monday, March 10, 2008
WIPO Copyright Meeting
Most of the Canadian delegation to the SCCR got stuck in Ottawa during the great March Break Blizzard and couldn't get to Geneva in time to deal with this meeting.
In any event, the Chairman is -- once again -- Jukka Liedes.
Looks like we haven't heard the end of the proposed broadcasters' rights treaty...
HK
In any event, the Chairman is -- once again -- Jukka Liedes.
Looks like we haven't heard the end of the proposed broadcasters' rights treaty...
HK
Monday, March 03, 2008
The Copyright Board Says "No" to Record Industry Collectives for Interim Tariff
The Copyright Board has just delivered a very interesting decision on February 29, 2008 concerning an application for an interim tariff by the recording industry while it pursues its quest for a permanent tariff said to be worth up to $50 million a year in additional and strongly resented and resisted costs to Canadian radio stations. According to the Canadian Association of Broadcasters (“CAB”), “The record labels are demanding an additional payment close to $50 million annually for the right to make technical reproductions that are secondary to playing the music over the air – a right for which radio broadcasters already pay.”
The proposed tariff would cover the “ephemeral” recordings necessary for the operation of radio station, since the practice of live to air broadcasts with “disc jockeys” operating their own turntables has long been obsolete for a long time. Radio stations have moved on to automation and computers to store and play the music, so they can broadcast it efficiently. The record industry now wants a very substantial tariff for this practice.
This is in spite of the fact that there is an explicit exemption for the practice of using ephemeral recordings for broadcast purposes in the US legislation. The legislation that effectively deprives Canadian broadcasters of the “privilege” (as Bill Patry calls it in his treatise) or “exemption” long enjoyed by their American counterparts and which has enabled and will enable the collection of tens of millions of dollars in royalties mostly for the benefit of American rights owners was one of the more astonishing results of the backroom activity in the 1996-1997 Committee hearings on Bill C-32. The so-called “commercially available” exception to a number of apparent exceptions and exemptions, including the ephemeral rights exemption, rendered them apparently meaningless. But that is now the law in Canada, at least as the Board has construed it ... so far. The owners of copyright in “works”, i.e. songs, have been collecting millions for the “ephemeral right” since 2003. Now, the record companies want in on the action, and want about five times as much as the composers, authors and publishers have been getting.
Back to the Board decision of February 29, 2008. The Board decisively rejected an application for an “interim” tariff by the record industry, i.e. a tariff that would kick in while the hearing process and potential judicial review unfolds (which could take years). The record companies apparently claimed though their collectives (AVLA and SOPROQ) that they needed such a tariff to fund their application for a permanent tariff, that they had no revenues from other tariffs, that the interrogatory process would be “burdensome” for them (one is “shocked, shocked” to hear such as suggestion...), and a few other points that the Copyright Board clearly and bluntly rejected. Here are some excerpts from the ruling, which has a judicial-like ring to it that will be welcomed by many objectors:
[3] The application correctly states the test for
granting interim relief as the Board has
developed it. First, an interim order can be
issued as long as the main application is not
plainly without merit. The collectives meet this
branch of the test. Second, granting the
application will relieve the applicant from the
deleterious effects caused by the length of the
proceedings. We find that the collectives do not
meet this branch of the test, because the
arguments they rely on to conclude that
deleterious effects exist are irrelevant,
inapplicable to the collectives or just plain
wrong.
[4] First, the collectives argue that neither has
“tariff income” to fund the proceedings. To the
contrary, we find the collectives are quite
capable of supporting the financial burden of
these proceedings. They probably have
significant licensing income. More importantly,
and contrary to what they state, they are not
without “tariff income”. They jointly receive
millions of dollars each year from the
Neighbouring Rights Collective of Canada
(NRCC) on account of the maker’s share of
royalties paid pursuant to section 19 of the Act.
They also receive 15 per cent of the private
copying levies, which also amounts to millions
of dollars. Other collectives use their other
incomes as a matter of course to subsidize
proceedings before the Board.
[5] Second, the collectives note that
interrogatories can be burdensome. That does
not help them. The interrogatory process
generally is of primary benefit to collectives;
they are more interested (and justified) in
seeking to understand the licensees’ business
model than the licensees are in seeking to
understand the collectives’ business practices.
To the collectives, the availability of the
interrogatory process is an advantage, not an
inconvenience.
[6] Third, the fact that tariffs of first impression
often are judicially reviewed is irrelevant at
best. A certified tariff is enforceable even when
challenged, unless the Federal Court of Appeal
suspends its application.
...
[11] Two points the collectives raised in their
reply of December 28, 2007 merit attention.
First, they state that the application for an
interim tariff should be summarily granted
because the CAB failed to show that the
application does not meet the test for granting
interim relief. That is looking at the issue from
the wrong end of the telescope. The person who
applies for interim relief bears the burden to
show that relief is required, whether or not
anyone else objects to the relief being granted.
Second, contrary to what the collectives state,
neither AVLA nor SOPROQ “are obliged to
pursue proceedings before the Copyright Board
in order to collectively administer their rights.”
These collectives are subject to the general
regime. They are entitled to pursue licensing
deals with individual users. Indeed, in the
general regime, such agreements trump the
tariff.
(emphasis added)
I cannot help but note that this is a little breath of fresh air as we await the end an extraordinarily long and drearily depressing winter in Ottawa...
HK
The proposed tariff would cover the “ephemeral” recordings necessary for the operation of radio station, since the practice of live to air broadcasts with “disc jockeys” operating their own turntables has long been obsolete for a long time. Radio stations have moved on to automation and computers to store and play the music, so they can broadcast it efficiently. The record industry now wants a very substantial tariff for this practice.
This is in spite of the fact that there is an explicit exemption for the practice of using ephemeral recordings for broadcast purposes in the US legislation. The legislation that effectively deprives Canadian broadcasters of the “privilege” (as Bill Patry calls it in his treatise) or “exemption” long enjoyed by their American counterparts and which has enabled and will enable the collection of tens of millions of dollars in royalties mostly for the benefit of American rights owners was one of the more astonishing results of the backroom activity in the 1996-1997 Committee hearings on Bill C-32. The so-called “commercially available” exception to a number of apparent exceptions and exemptions, including the ephemeral rights exemption, rendered them apparently meaningless. But that is now the law in Canada, at least as the Board has construed it ... so far. The owners of copyright in “works”, i.e. songs, have been collecting millions for the “ephemeral right” since 2003. Now, the record companies want in on the action, and want about five times as much as the composers, authors and publishers have been getting.
Back to the Board decision of February 29, 2008. The Board decisively rejected an application for an “interim” tariff by the record industry, i.e. a tariff that would kick in while the hearing process and potential judicial review unfolds (which could take years). The record companies apparently claimed though their collectives (AVLA and SOPROQ) that they needed such a tariff to fund their application for a permanent tariff, that they had no revenues from other tariffs, that the interrogatory process would be “burdensome” for them (one is “shocked, shocked” to hear such as suggestion...), and a few other points that the Copyright Board clearly and bluntly rejected. Here are some excerpts from the ruling, which has a judicial-like ring to it that will be welcomed by many objectors:
[3] The application correctly states the test for
granting interim relief as the Board has
developed it. First, an interim order can be
issued as long as the main application is not
plainly without merit. The collectives meet this
branch of the test. Second, granting the
application will relieve the applicant from the
deleterious effects caused by the length of the
proceedings. We find that the collectives do not
meet this branch of the test, because the
arguments they rely on to conclude that
deleterious effects exist are irrelevant,
inapplicable to the collectives or just plain
wrong.
[4] First, the collectives argue that neither has
“tariff income” to fund the proceedings. To the
contrary, we find the collectives are quite
capable of supporting the financial burden of
these proceedings. They probably have
significant licensing income. More importantly,
and contrary to what they state, they are not
without “tariff income”. They jointly receive
millions of dollars each year from the
Neighbouring Rights Collective of Canada
(NRCC) on account of the maker’s share of
royalties paid pursuant to section 19 of the Act.
They also receive 15 per cent of the private
copying levies, which also amounts to millions
of dollars. Other collectives use their other
incomes as a matter of course to subsidize
proceedings before the Board.
[5] Second, the collectives note that
interrogatories can be burdensome. That does
not help them. The interrogatory process
generally is of primary benefit to collectives;
they are more interested (and justified) in
seeking to understand the licensees’ business
model than the licensees are in seeking to
understand the collectives’ business practices.
To the collectives, the availability of the
interrogatory process is an advantage, not an
inconvenience.
[6] Third, the fact that tariffs of first impression
often are judicially reviewed is irrelevant at
best. A certified tariff is enforceable even when
challenged, unless the Federal Court of Appeal
suspends its application.
...
[11] Two points the collectives raised in their
reply of December 28, 2007 merit attention.
First, they state that the application for an
interim tariff should be summarily granted
because the CAB failed to show that the
application does not meet the test for granting
interim relief. That is looking at the issue from
the wrong end of the telescope. The person who
applies for interim relief bears the burden to
show that relief is required, whether or not
anyone else objects to the relief being granted.
Second, contrary to what the collectives state,
neither AVLA nor SOPROQ “are obliged to
pursue proceedings before the Copyright Board
in order to collectively administer their rights.”
These collectives are subject to the general
regime. They are entitled to pursue licensing
deals with individual users. Indeed, in the
general regime, such agreements trump the
tariff.
(emphasis added)
I cannot help but note that this is a little breath of fresh air as we await the end an extraordinarily long and drearily depressing winter in Ottawa...
HK
Saturday, March 01, 2008
Canadian Copyright Collectives and the Copyright Board
I’ve just done a paper and given a CLE talk for the Law Society of Upper Canada entitled CANADIAN COPYRIGHT COLLECTIVES AND THE COPYRIGHT BOARD: A SNAP SHOT IN 2008. Here’s a copy.
Here’s my bottom line:
Here’s my bottom line:
CONCLUSIONSHK
Canada’s system of collective administration of copyright has both many strengths and weaknesses. This is also the case in most other countries. Improvements are possible and necessary. Some of these can come from collectives themselves. Others will need to come from the Copyright Board, or the Government itself in the form of regulation or legislation.
Canada’s Copyright Board plays a greater role in the collective administration of copyright than comparable tribunals in Australia, the USA, UK and other common law countries, and probably all other major developed countries. It appears to have more full time members and staff than its counterparts in any comparable country. It has a long and rich history of which it can mostly be very proud. However, that is not to say that improvements cannot be made. This appears to be recognized.
Canada’s Federal Court of Appeal, and on occasion the Supreme Court of Canada, have played a vital role in reviewing all of this activity and in ensuring that the public interest element inherent in copyright law is kept in mind.
Much more work needs to be done. Perhaps it is time for another commission along the lines of those chaired by Justice Parker and Justice Ilsley to look at all of this along with other copyright issues more fully and in the interests of the Canadian public.
More on Euro-Excellence v. Kraft
I’ve just done a short talk on the Supreme Court of Canada’s important Kraft decision (in which I was involved) for a LSUC CLE programme on February 28, 2008 in Toronto. Here’s my brief paper.
Here’s a bit of the bottom line in that paper.
Here’s a bit of the bottom line in that paper.
The doors have now been opened to new issues such as copyright abuse or misuse, or the argument that copyright law cannot be used to limit free trade in articles not protected by copyright. Other arguments are also open. Current and future potential plaintiffs contemplating the use of copyright law to bar parallel imports of consumer products not protected by copyright may wish to be careful about what they wish for.HK
Monday, February 25, 2008
Professor Lessig Won't Go To Washington
Professor Lessig has, not surprisingly, decided not to run from Congress.
It's hard to stop a train, especially when the anointed rival actually has a real train named after her.
HK
It's hard to stop a train, especially when the anointed rival actually has a real train named after her.
HK
"Debunking the Song Tax"
The National Post has another blunt editorial (at least its third this year) on copyright matters called "Debunking the Song Tax" in today's paper.
Here's the bottom line, according to the paper:
Here's the bottom line, according to the paper:
HK-How is the money to be distributed? SAC hallucinates an ultra-powerful, bias-free "collective" that "would track internet and wireless file sharing activity on a census basis. Virtually all sharing on the internet and wireless devices would be tracked," they promise, and "Creators and rights-holders will be paid with a level of speed and accuracy never before possible." Will this happen before or after pigs fly? And are you comfortable letting Eddie Schwartz and Randy Bachman monitor all the filesharing activity on your PC, or would you immediately click on the encryption option that peer-to-peer sharing applications already offer as a matter of course?
We know what choice we would make.
Friday, February 22, 2008
Broadcasters' Rights Redux - The Return of the Undead?
Never say never. Look at whassup in the Council of Europe.
Just in time for the forthcoming WIPO SCCR meeting coming up March 10-12, 2008 in Geneva.
Is this the Return of the Undead?
HK
Just in time for the forthcoming WIPO SCCR meeting coming up March 10-12, 2008 in Geneva.
Is this the Return of the Undead?
HK
The Copyright of Politics
Hillary Clinton has desperately and wrongly (see Bill Patry) accused Obama of plagiarism.
Potentially much more ironic and seriously serious is the accusation that the Conservative Party of Canada and Minister Prentice - the presumed sponsor of the presumed new copyright bill - have infringed Warner/Chappell's copyright in a recent slick political attack ad video:
Canadian law also provides "moral rights" to the composer and lyricist, which result in their permission being required if their work is used "in association with a product, service, cause or institution."
Are the next US and Canadian elections going to be about political piracy?
That could be entertaining and good for copyright lawyers. Let us hope...
Let's hear it for Copyright Awareness.
HK
Potentially much more ironic and seriously serious is the accusation that the Conservative Party of Canada and Minister Prentice - the presumed sponsor of the presumed new copyright bill - have infringed Warner/Chappell's copyright in a recent slick political attack ad video:
As the Harper government prepares to introduce tougher new copyright rules, the Conservative party is being accused of using the theme song from the reality TV show The Apprentice without permission of the record company that owns it.See Ottawa Citizen, Feb. 22, 2008.
Canadian law also provides "moral rights" to the composer and lyricist, which result in their permission being required if their work is used "in association with a product, service, cause or institution."
Are the next US and Canadian elections going to be about political piracy?
That could be entertaining and good for copyright lawyers. Let us hope...
Let's hear it for Copyright Awareness.
HK
Copyright Board and CAB - Once More with Feeling!
The Copyright Board has on February 22, 2008 now reiterated its conclusion from its decision October 14, 2005 to grant an increase of 32% to SOCAN for its commercial radio tariff and a corresponding increase to NRCC. The Board had been told by the Federal Court of Appeal that it had to provide adequate reasons for its original decision. I discussed this at some length on October 23, 2006 here.
The Board's new decision, which comes almost four years after the hearing in May 2004, comes to the same conclusion but for different reasons. A quick read indicates that it mainly adopts the CAB's economic expert's methodology "with several modifications", with the resulting arithmetic working against the CAB - and with lots of detail.
For fans of administrative law and "standard of review", the FCA's October 19, 2006 decision, which took only a week to issue and which was written by Mr. Justice John Evans, who is not a only a judge of the Federal Court of Appeal but is the co-author of the leading Canadian treatise on administrative law stated as follow:
The Board's new decision, which comes almost four years after the hearing in May 2004, comes to the same conclusion but for different reasons. A quick read indicates that it mainly adopts the CAB's economic expert's methodology "with several modifications", with the resulting arithmetic working against the CAB - and with lots of detail.
For fans of administrative law and "standard of review", the FCA's October 19, 2006 decision, which took only a week to issue and which was written by Mr. Justice John Evans, who is not a only a judge of the Federal Court of Appeal but is the co-author of the leading Canadian treatise on administrative law stated as follow:
HK[16] The Board is entitled to the greatest deference in the exercise of its discretion to set a rate and, accordingly, the discretionary decisions lying at the heart of its expertise are reviewable only for patent unreasonableness. However. it must explain the basis of its decisions in a manner that enables the Court on Judicial review to determine on the basis of the reasons, read in context, whether the decision was rationally supportable. When an administrative tribunal's decision is reviewable on a standard of reasonableness, its reasons are the central focus of a judicial review: Law Society at New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 see 20, at paras. 48-9, 54-55.
[17] In my view it was not sufficient in the circumstances of this case for the Board to justify its quantification of the undervaluation by merely referring to the evidence taken as a whole. It is not enough to say in effect: "We are the experts. This is the figure: trust us." The Board's reasons on this issue served neither to facilitate a meaningful judicial review, nor to provide future guidance for regulatees.
(Emphasis added)
Michael Geist's EFF Award
Congratulations to Michael Geist on his EFF award.
Michael has done a superb job of teaching, challenging and pushing the envelope on issues such as copyright law, privacy, net neutrality and, above all, the right of Canadians to determine what’s best for our own sovereign country on these and other important issues. And he has taken this to a world stage.
I hope that this award serves as an example to other academics in Canada to speak out on important issues. That is their responsibility and should be the quid pro quo for their tenure. Too many Canadian academics have been too silent for too long, perhaps because they have been too comfortable.
Not Michael.
Michael has been threatened with litigation by the Hon. Sarmite Bulte:
Bravo, Michael. Canada needs you.
HK
Michael has done a superb job of teaching, challenging and pushing the envelope on issues such as copyright law, privacy, net neutrality and, above all, the right of Canadians to determine what’s best for our own sovereign country on these and other important issues. And he has taken this to a world stage.
I hope that this award serves as an example to other academics in Canada to speak out on important issues. That is their responsibility and should be the quid pro quo for their tenure. Too many Canadian academics have been too silent for too long, perhaps because they have been too comfortable.
Not Michael.
Michael has been threatened with litigation by the Hon. Sarmite Bulte:
"I am not going to sue him before the election but dammit, watch me after the election."An influential lobby group went after him for his Toronto Star column:
"It seemed clear that the only outcome that would satisfy [CRIA] was getting rid of Geist, which wasn't even remotely in the cards."And he has faced other confrontations and attacks from powerful forces on Bay Street and elsewhere.
Bravo, Michael. Canada needs you.
HK
Wednesday, February 20, 2008
Reefer Madness 2008
Here's about two minutes of a leaked RIAA training video. It's too over the top to have been spoofied. According to its host, www.gizmodo.com :
Those of us of certain age may recall a not so great American film called Reefer Madness.
HK
This is a leaked official RIAA training video produced with the National District Attorneys Association telling U.S. prosecutors why they should bust music pirates: Because it'll lead them to "everything from handguns to large quantities of cocaine [and] marijuana," not to mention terrorists and murderers!Nobody condones commercial piracy - but linking illicit CDs to serious drug trafficking, gun crimes, murder and terrorism may be a trifle hyperbolic.The whole video is over 60 minutes long—these are just two of the more outrageous minutes with Jim Dedman, from the NDAA, interviewing Deborah Robinson and Frank Walters from the RIAA about the benefits of going SWAT on music pirates. At one point, Walters says the piracy/drug connection can be so bad that you get asked "When you buy a CD, would you like it with or without—the with is enclosing a piece of crack or whatever the case may be."
Those of us of certain age may recall a not so great American film called Reefer Madness.
HK
Professsor Lessig Goes to Washington?
Will Larry Lessig run for Congress?
Maybe.
Here's his site.
Take a few minutes to watch his video. Very interesting indeed.
And potentially very important.
Could this be a real life remake/sequel to the very great 1939 Frank Capra film starring Jimmy Stewart "Mr. Smith Goes to Washington"?
Here are some clips:
http://youtube.com/watch?v=de6f-ij81oQ
http://youtube.com/watch?v=p1d19wV1GZQ
http://youtube.com/watch?v=zWyEc7FAMTg
HK
Maybe.
Here's his site.
Take a few minutes to watch his video. Very interesting indeed.
And potentially very important.
Could this be a real life remake/sequel to the very great 1939 Frank Capra film starring Jimmy Stewart "Mr. Smith Goes to Washington"?
Here are some clips:
http://youtube.com/watch?v=de6f-ij81oQ
http://youtube.com/watch?v=p1d19wV1GZQ
http://youtube.com/watch?v=zWyEc7FAMTg
HK
Tuesday, February 19, 2008
Minutes of the Heritiage Committee re Proposed Special Joint Committee
The Minutes of the Heritage Committee meeting in which the Committee indicated its desire to get involved in the proposed copyright bill and to have it referred before second reading reveal some interesting remarks by the Hon.Hedy Fry, whose motion led to the Report:
Having now seen the above, the idea of a Special Joint Committee becomes rather problematic. If Minister Prentice is listening to the advice he is getting from those who believe in balanced copyright, especially the recently formed Business Coalition for Balanced Copyright ("BCBC") and his bill, if and when it comes, truly reflects these concerns, it should be passed quickly and could mark a major positive achievement for Canada. However, the proposed Special Joint Committee could slow this down or even stop such a good bill from going through, if Mme Fry's frankly reckless rhetoric represents the prevailing view of the Heritage Committee.
My earlier (November 20, 2006) potential sympathy for a Special Joint Committee was predicated on the likelihood that the Bill would wind up before the Heritage Committee alone, a troubling prospect at that time. As I said on November 20, 2006:
One also hopes that she is not speaking for the Liberal party - whose views on the bill could be crucial in terms of whether it stands a chance of being passed or not before the next election. Ms. Fry has been something of a controversial loose canon in the past with her comments in the House of Commons on cross burnings on the lawns of Prince George BC.
HK
I think we have heard repeatedly on this committee that one of the greatest challenges to copyright is the advent of digital media, and that this in fact seems totally insurmountable and uncontrollable because people are downloading intellectual property of creators and artists on iPods and everything they can. That has left us with a huge copyright vacuum.
I think the way Industry Canada may look at this would be very different from the way Heritage Canada would look at this. I believe the things that concern us at Heritage Canada and this committee here are the issues of pure intellectual property. When someone uses their intellectual property to invent a new piece of technology or widget, patent laws and all of those other things can come into place, because you can see the thing, hold it, feel it, touch it—like the BlackBerry, for instance. When you write a play or a song and someone picks it up on an iPod or on whatever and there's piracy going on and all of those things, that is really harming the creator, the artist. Therefore, I think we need to be at that table. We need to inject this perspective into any discussion on any copyright legislation.
It's most important, especially since we know that the CRTC has given an indication that they don't intend to deal with anything to do with the Broadcasting Act or copyright for the next 10 years. We are already the only one of the industrialized nations that doesn't have a copyright act that deals with these issues.
(emphasis added)
Having now seen the above, the idea of a Special Joint Committee becomes rather problematic. If Minister Prentice is listening to the advice he is getting from those who believe in balanced copyright, especially the recently formed Business Coalition for Balanced Copyright ("BCBC") and his bill, if and when it comes, truly reflects these concerns, it should be passed quickly and could mark a major positive achievement for Canada. However, the proposed Special Joint Committee could slow this down or even stop such a good bill from going through, if Mme Fry's frankly reckless rhetoric represents the prevailing view of the Heritage Committee.
My earlier (November 20, 2006) potential sympathy for a Special Joint Committee was predicated on the likelihood that the Bill would wind up before the Heritage Committee alone, a troubling prospect at that time. As I said on November 20, 2006:
If there is a copyright bill, and if it gets as far as committee hearings, it is imperative that it be considered by a balanced committee that represents the mandate of both of the sponsoring departments. The Heritage Committee alone cannot be entrusted alone with this task. Even with Mme Bulte gone, the institutional structure militates against both actual and apparent balance in the hands of that Committee alone. Even before Bulte, that Committee often gave the appearance of imbalance and of being too prone to influence by the Department of Canadian Heritage and the usual lobbying suspects. Indeed, the appearance probably reflected the reality. Clifford Lincoln may have appeared more balanced than Mme Bulte, but the result too often left much to be desired.If Ms. Fry represents anything like the current consensus of the Heritage Committee, then a Special Joint Committee is not likely a good idea - at least for those who believe in a balanced copyright policy informed by facts and sound reasoning.
One also hopes that she is not speaking for the Liberal party - whose views on the bill could be crucial in terms of whether it stands a chance of being passed or not before the next election. Ms. Fry has been something of a controversial loose canon in the past with her comments in the House of Commons on cross burnings on the lawns of Prince George BC.
HK
Monday, February 18, 2008
Politics More than Usual on the Hill
The Standing Committee on Heritage Committee has just released an interesting Report calling for the following:
This means two important things:
I've written before about the potential wisdom of having a special joint committee (rather than the Heritage Committee alone), and as well the need for balanced expertise - i.e. two or preferably three outside counsel to advise the committee members. This will be all the more important if the bill becomes a "free for all" as a result of referral after first reading.
HK
The Standing Committee on Canadian Heritage recommends that the Government Bill entitled “An Act to amend the Copyright Act” for which notice was given on December 7th 2007, once introduced and read a first time, be referred to a Special Joint Committee made up of members or associate members of the Standing Committee of Canadian Heritage and of the Standing Committee on Industry, Science and Technology before second reading.(emphasis added)
This means two important things:
- The Heritage Committee wants a piece of the action.
- The Heritage Committee wants to see the referral of the Bill before second reading, which is unusual, and would allow for major additions and alterations to the bill that would otherwise not be possible from a procedural standpoint.
I've written before about the potential wisdom of having a special joint committee (rather than the Heritage Committee alone), and as well the need for balanced expertise - i.e. two or preferably three outside counsel to advise the committee members. This will be all the more important if the bill becomes a "free for all" as a result of referral after first reading.
HK
Friday, February 15, 2008
"More Than a Feelling" about Less Than Adequate Moral Rights in the USA
Here's an example of why the USA needs moral rights in its copyright law. According to CTV:
Maybe somebody should put the USA on a priority watch list. It's lack of adequate moral right protection puts it out of compliance with the Berne Convention, although it cleverly managed to make that a non-issue for dispute purposes in TRIPS.
And that's not the only reason. I'll get around to others.
HK
The chief songwriter and founder of the band Boston has more than a feeling that he's being ripped off by Mike Huckabee.In a letter to the Republican presidential hopeful, Tom Scholz complains that Huckabee is using his 1970s smash hit song "More Than a Feeling" without his permission. A former member of the band, Barry Goudreau, has appeared with Huckabee at campaign events, and they have played the song with Huckabee's band, Capitol Offense.
Canadian law has real moral rights protection and prevents a work from being " used in association with a product, service, cause or institution" without permission. See s. 28.2 of the Canadian Copyright Act.
Maybe somebody should put the USA on a priority watch list. It's lack of adequate moral right protection puts it out of compliance with the Berne Convention, although it cleverly managed to make that a non-issue for dispute purposes in TRIPS.
And that's not the only reason. I'll get around to others.
HK
Wednesday, February 13, 2008
IIPA, DMCA, 301, and Canadian Copyright Sovereignty
Canada is now on the IIPA "priority watch list."
This is clearly a blatant bullying attempt to influence domestic Canadian copyright reform, and the allegations are very wrong - especially since Canada already provides much stronger copyright protection in many important respects than the USA.
But don't take my word for it....
Here's a brilliant take on the IIPA, DMCA and Canada, from Bill Patry. This is a MUST to read. Bill is the author of a new and very important seven volume treatise on American copyright law and has taken a great interest in Canadian issues...
As Bill reports:
Read all of Bill's blog. More to come on this for sure.....
HK
This is clearly a blatant bullying attempt to influence domestic Canadian copyright reform, and the allegations are very wrong - especially since Canada already provides much stronger copyright protection in many important respects than the USA.
But don't take my word for it....
Here's a brilliant take on the IIPA, DMCA and Canada, from Bill Patry. This is a MUST to read. Bill is the author of a new and very important seven volume treatise on American copyright law and has taken a great interest in Canadian issues...
As Bill reports:
So what are the IIPA’s beefs? The principal ones ostensibly concern Canada’s failure to implement the 1996 WIPO treaties. Examination of the IIPA’s 301 reports reveals, though, that what it has in mind is simply adoption of U.S. law, not amendments to Canada law that are consistent with the treaties obligations. The WIPO treaties modestly require only remedies for circumvention of Technological Protection Measures (TPMs) that involve the exercise of exclusive rights. Although the U.S. attempted to have the treaties include remedies for circumvention of access controls, other countries rejected the U.S.’s efforts. One would never know this from the IIPA’s reports, which mix the two together and lead readers to believe both are required; they are not.
...
The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the WIPO treaties is a mystery.
Read all of Bill's blog. More to come on this for sure.....
HK
Tuesday, February 12, 2008
Rule Britannia - Three Strikes and You're Out?
Rumours reported in no less than The Times of London indicate:
This would be a "three strikes" policy and one of the disturbing aspects of the story is that the ISPs have actually been negotiating with Hollywood’s biggest studio and distribution companies.
The IPKat rightly "wonders whether, once unlawful downloaders are cut off, there will be enough people left online to make the internet worthwhile."
I wonder whether the UK may have forgotten about the Magna Carta, which predates the RIAA and IFPI by almost 800 years.
Maybe the current UK government regards the Magna Carta and all that stuff about rule of law, due process, etc. as an outdated business model.
Which is exactly how many people who love music but not necessarily the music industry would describe the big four record companies today.
HK
People who illegally download films and music will be cut off from the internet under new legislative proposals to be unveiled next week.
Internet service providers (ISPs) will be legally required to take action against users who access pirated material, The Times has learnt.
Here's the whole story, which is based upon a "leak" of a forthcoming green paper.
This would be a "three strikes" policy and one of the disturbing aspects of the story is that the ISPs have actually been negotiating with Hollywood’s biggest studio and distribution companies.
The IPKat rightly "wonders whether, once unlawful downloaders are cut off, there will be enough people left online to make the internet worthwhile."
I wonder whether the UK may have forgotten about the Magna Carta, which predates the RIAA and IFPI by almost 800 years.
Maybe the current UK government regards the Magna Carta and all that stuff about rule of law, due process, etc. as an outdated business model.
Which is exactly how many people who love music but not necessarily the music industry would describe the big four record companies today.
HK
Q&A with Lawrence Lessig
The always informative and often entertaining WSJ Law Blog has a Q&A with Lawrence Lessig and why he is morphing from copyright to "eliminating the corroding influence of money in politics."
HK
HK
Monday, February 11, 2008
Canada, WIPO, and "certain obligations"
If and when there is a new copyright bill introduced before a possibly imminent election, there will be much talk about the 1996 WIPO treaties.
It is obvious that
And, in the meantime, let’s be accurate about just what
I have often said and been quoted on the principle that that signing a treaty is to ratification about the same as dating is to marriage. The latter does not necessarily follow from the former, and the influences on the relationship during the dating (i.e. signature) phase are, just as in person to person relationships, often defined more by influences other than legal “obligations.” Let’s just leave it at that.
But, there’s no need to take my word for this.
The effect of signature is not, of course, to bind the signatory State but simply represents an acknowledgment of its intention to enact a law based on the Convention and, in due course, to ratify the Convention. It is only the ratification of the Convention by an existing member State which has signed the Convention, or accession to the Convention by a new member State, which creates an international legal obligation.
(emphasis added)
www.wipo.int/about-ip/en/iprm/doc/ch5.doc
Coming from WIPO, that is about as strong a statement as one can find from a credible institutional source, and is not inconsistent with my simple dating analogy.
Others see the effect of signature as even less. Prof. J. Craig Barker puts it as follows:
The effect of signature is not, as one might expect, to bind a state to the terms of a treaty. There is usually a further stage of ratification required before a state party can be said to be fully bound. Nevertheless, the signature of a state to a treaty is not without effect. A state that has signed, but not yet ratified, a treaty is bound not to do anything contrary to the objects and purposes of that treaty prior to ratification or withdrawal of signature. However, a state is not bound to follow the terms of a treaty in their entirety until ratification.
The point is very simple.
However,
Let us be precise with our language here and not use language too loosely. There is too much at stake.
HK
Saturday, February 09, 2008
How J.K. Rowling can "Choke Creativity"
There's an excellent article in the business section of the NYT today by Joe Nocera about J. K. Rowling's efforts to squash a small publisher who wants to publish a "companion" book. According to the Times:
It will be about the battle between those who believe in the evolution of culture through a large and liberal interpretation of the time honoured practice of fairly building upon what has come before and those, such as Ms Rowling and her agent, Mr. Neil Blair who says:
In other words, creativity v. control.
J.K. Rowling may be the most successful author in history in the financial sense. It's just too bad that she is using her money and power to control, stifle and "choke" the creativity of others.
PS - here's a great article by Tim Wu from January 10, 2008 Slate on why Rowling should lose her lawsuit.
HK
RDR has the help of Lawrence Lessig's clinic at Stanford. This will be a very important test case on the parameters of fair use in American law.“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” she said in a declaration to the court.
And what perfidious act of “hijacking” has RDR Books committed? It planned to publish a book by Steven Vander Ark, who maintains a fansite called the Harry Potter Lexicon. The Lexicon publishes Harry Potter essays, finds Harry Potter mistakes, explains Harry Potter terminology, devises Harry Potter timelines and does a thousand other things aimed at people who can’t get enough Harry Potter. It’s a Harry Potter encyclopedia for obsessive fans.
It will be about the battle between those who believe in the evolution of culture through a large and liberal interpretation of the time honoured practice of fairly building upon what has come before and those, such as Ms Rowling and her agent, Mr. Neil Blair who says:
“There have been a huge number of companion books that have been published,” Mr. Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But, he added: “These guys refused to contact us. They refused to answer any questions. They refused to show us any details.”(emphasis added)
In other words, creativity v. control.
J.K. Rowling may be the most successful author in history in the financial sense. It's just too bad that she is using her money and power to control, stifle and "choke" the creativity of others.
PS - here's a great article by Tim Wu from January 10, 2008 Slate on why Rowling should lose her lawsuit.
HK
Thursday, February 07, 2008
CPCC won't seek leave to appeal...
CPCC has announced today that it will not seek leave to appeal to the Supreme Court of Canada from the January 10, 2008 decision of the Federal Court of Appeal quashing the Copyright Board's decision to hold a hearing to set a tariff on digital audio recorders. (I acted in this matter for the Retail Council of Canada, which along with Apple Canada, etc. had brought the applications to quash.)
Jack Kapica has a blog on this today, as well as his prediction on the much awaited copyright legislation.
HK
Jack Kapica has a blog on this today, as well as his prediction on the much awaited copyright legislation.
HK
Monday, February 04, 2008
Facebook at 40,000
Sometime sson, quite possibly tonight, Michael Geist’s Facebook Fair Copyright for Canada (FCFC) site will hit 40,000 members. As I write this, it’s at 39, 941.
Here’s the link for those are already on Facebook.
For those who aren’t members and want to join, it’s painless. You don’t have to give a lot of information about yourself to sign up. You don’t even have to reveal your age (thank goodness), and the mandatory registration info required is quite minimal.
Let’s put that these numbers in perspective. At this same moment, Barrack Obama has 359,307 members on his Facebook site.
So, Michael has in less than two months accumulated more than 11% of the membership of Obama, whose campaign for President began some would say at least three years ago. Using the usual back of the envelope rule that everything in the USA is about 10 times greater than Canada, Michael’s site is actually relatively more popular than Obama’s.
Some have taken cheap shots at the fact that the average Facebook FCFC member does not have an LL.M. in copyright law, or sentiments to that effect. I actually find most of the comments quite prescient, positive, relevant and informative. The point is that they are from citizens who are wired and likely very well educated, impassioned and influential with their friends and families. If copyright law is not understandable and acceptable to ordinary Canadians, then who is it for?
The fact is that these 40K people are voters and they represent many times more voters who feel the same way. Anyone who is in denial about this may well have to reckon with reality.
HK
Here’s the link for those are already on Facebook.
For those who aren’t members and want to join, it’s painless. You don’t have to give a lot of information about yourself to sign up. You don’t even have to reveal your age (thank goodness), and the mandatory registration info required is quite minimal.
Let’s put that these numbers in perspective. At this same moment, Barrack Obama has 359,307 members on his Facebook site.
So, Michael has in less than two months accumulated more than 11% of the membership of Obama, whose campaign for President began some would say at least three years ago. Using the usual back of the envelope rule that everything in the USA is about 10 times greater than Canada, Michael’s site is actually relatively more popular than Obama’s.
Some have taken cheap shots at the fact that the average Facebook FCFC member does not have an LL.M. in copyright law, or sentiments to that effect. I actually find most of the comments quite prescient, positive, relevant and informative. The point is that they are from citizens who are wired and likely very well educated, impassioned and influential with their friends and families. If copyright law is not understandable and acceptable to ordinary Canadians, then who is it for?
The fact is that these 40K people are voters and they represent many times more voters who feel the same way. Anyone who is in denial about this may well have to reckon with reality.
HK
Sunday, February 03, 2008
Murray and Trosow on Canadian Copyright - A "Must" for educators and librarians
There is a very useful new book entitled Canadian Copyright on Canadian copyright published late in 2007 that I really ought to have mentioned earlier, but I’ve been very busy lately with litigation, some of which readers will have heard about.
Laura Murray, a professor of English Literature at Queen's and Sam Trosow, a law professor at Western, have jointly written a very fine little book of major importance that will appeal to and be indispensable to a broad spectrum of those who are concerned about Canadian copyright law and policy. Indeed, its subtitle is "A Citizen's Guide." Murray’s ability to communicate with a non-legal audience and Trosow’s knowledge of both Canadian and American copyright law (together with his professional qualifications as a librarian) are a potent combination and the result is very positive.
This book takes a stand on issues where taking a stand is necessary and inevitable, such as CMEC’s proposed special exception for educational use of the internet (pp. 124-125). But it also provides basically accurate and useful analysis and references. It is quite up to date - at least to the middle of last year. There is no reference to the Euro v. Kraft decision of the Supreme Court which was released on July 26, 2007 - but that’s not too serious given the main audience for this book, which will be the educational community in the largest sense but not necessarily the business community. Besides, I imagine that the book was probably well into production by July 26, 2007.
The book is eminently readable, which is unusual for any quality book about copyright law. It has a very useful index and bibliography. And I’m honoured to have been mentioned in this work including in the credits.
And it even has some good cartoons. It also has some box summaries of key cases, which are useful for non-experts.
This book is by far the most useful and reliable publication now available on basic legal and policy issues of importance aimed at the thousands of students, educators, librarians, teachers and academics across Canada who need to deal with copyright on a day to day basis. It is not excessively cautious in its approach. Unlike certain other previous publications aimed at such a general audience, it assumes a reasonable degree of intelligence and responsibility on the part of its readers, who will benefit from learning about how to use copyright law to their advantage. It provides a reasonable degree of detail about key recent legal cases, and even provides a quick guide on how to find Canadian and American case law.
It is a welcome antidote to and replacement for certain previous publications aimed at non-lawyers, which tended to be excessively cautious and risk averse to the point where teachers and librarians, for example, who rely on such publications too literally, might be unable to do their job as well as they could and should.
For example, a publication that is apparently oblivious to the empowering possibilities of the CCH v. LSUC decision does not help teachers and librarians to be more effective in their work.
By way of another example, I’ve previously written about how SFU has seriously misinformed its graduate students on copyright issues pertaining to their theses and pointed them in turn to a publication that contained serious errors of omission in terms of case law at the time when it was published, but which SFU describes as “"the indispensable guide for publishers, web professionals, writers, artists, filmmakers, teachers, librarians, archivists, curators, lawyers and business people."
Murray and Trosow have now gone beyond these problematic past approaches. Even experienced copyright lawyers will find this book to be interesting and useful in the policy context. While not as comprehensive or authoritative for legal research or litigation citation purposes as David Vaver’s 2000 publication, it is more up to date and has potentially a much broader audience. It will also be more useful than Vaver’s book in many respects in terms of dealing with the forthcoming wars over the new legislation.
One suggestion for the next edition - which I hope to see after the dust has settled someday on the expected new legislation - would be expanded treatment of collectives and the Copyright Board. Of course, one of the ironies of Canadian collectives and the Board is that there is little opportunity for "citizen" participation. The collectives are generally not very democratic or transparent. And meaningful participation in Copyright Board hearings is normally very expensive and time consuming.
Frankly, the major educational and library advocacy entities involved in copyright reform and policy should be distributing this book in quantities to their staff and bringing it to the attention of their many ultimate members, i.e. working professionals. These entities include ACCC, AUCC, CAUT, CLA, CARL, and last, but not least, CMEC.
The publisher is missing a great opportunity if it does not actively bring this book to the attention of the thousands of students, teachers (at all levels), school board officials, civil servants and librarians who could immediately benefit from it. But, thankfully, Amazon steps at least partially into the breach and the book is available here at discounted price of $15.72.
A bargain at several times the price.
HK
Laura Murray, a professor of English Literature at Queen's and Sam Trosow, a law professor at Western, have jointly written a very fine little book of major importance that will appeal to and be indispensable to a broad spectrum of those who are concerned about Canadian copyright law and policy. Indeed, its subtitle is "A Citizen's Guide." Murray’s ability to communicate with a non-legal audience and Trosow’s knowledge of both Canadian and American copyright law (together with his professional qualifications as a librarian) are a potent combination and the result is very positive.
This book takes a stand on issues where taking a stand is necessary and inevitable, such as CMEC’s proposed special exception for educational use of the internet (pp. 124-125). But it also provides basically accurate and useful analysis and references. It is quite up to date - at least to the middle of last year. There is no reference to the Euro v. Kraft decision of the Supreme Court which was released on July 26, 2007 - but that’s not too serious given the main audience for this book, which will be the educational community in the largest sense but not necessarily the business community. Besides, I imagine that the book was probably well into production by July 26, 2007.
The book is eminently readable, which is unusual for any quality book about copyright law. It has a very useful index and bibliography. And I’m honoured to have been mentioned in this work including in the credits.
And it even has some good cartoons. It also has some box summaries of key cases, which are useful for non-experts.
This book is by far the most useful and reliable publication now available on basic legal and policy issues of importance aimed at the thousands of students, educators, librarians, teachers and academics across Canada who need to deal with copyright on a day to day basis. It is not excessively cautious in its approach. Unlike certain other previous publications aimed at such a general audience, it assumes a reasonable degree of intelligence and responsibility on the part of its readers, who will benefit from learning about how to use copyright law to their advantage. It provides a reasonable degree of detail about key recent legal cases, and even provides a quick guide on how to find Canadian and American case law.
It is a welcome antidote to and replacement for certain previous publications aimed at non-lawyers, which tended to be excessively cautious and risk averse to the point where teachers and librarians, for example, who rely on such publications too literally, might be unable to do their job as well as they could and should.
For example, a publication that is apparently oblivious to the empowering possibilities of the CCH v. LSUC decision does not help teachers and librarians to be more effective in their work.
By way of another example, I’ve previously written about how SFU has seriously misinformed its graduate students on copyright issues pertaining to their theses and pointed them in turn to a publication that contained serious errors of omission in terms of case law at the time when it was published, but which SFU describes as “"the indispensable guide for publishers, web professionals, writers, artists, filmmakers, teachers, librarians, archivists, curators, lawyers and business people."
Murray and Trosow have now gone beyond these problematic past approaches. Even experienced copyright lawyers will find this book to be interesting and useful in the policy context. While not as comprehensive or authoritative for legal research or litigation citation purposes as David Vaver’s 2000 publication, it is more up to date and has potentially a much broader audience. It will also be more useful than Vaver’s book in many respects in terms of dealing with the forthcoming wars over the new legislation.
One suggestion for the next edition - which I hope to see after the dust has settled someday on the expected new legislation - would be expanded treatment of collectives and the Copyright Board. Of course, one of the ironies of Canadian collectives and the Board is that there is little opportunity for "citizen" participation. The collectives are generally not very democratic or transparent. And meaningful participation in Copyright Board hearings is normally very expensive and time consuming.
Frankly, the major educational and library advocacy entities involved in copyright reform and policy should be distributing this book in quantities to their staff and bringing it to the attention of their many ultimate members, i.e. working professionals. These entities include ACCC, AUCC, CAUT, CLA, CARL, and last, but not least, CMEC.
The publisher is missing a great opportunity if it does not actively bring this book to the attention of the thousands of students, teachers (at all levels), school board officials, civil servants and librarians who could immediately benefit from it. But, thankfully, Amazon steps at least partially into the breach and the book is available here at discounted price of $15.72.
A bargain at several times the price.
HK
Friday, February 01, 2008
CMEC & CARL
The Canadian Association of Research Libraries (CARL) has - predictably - supported CMEC's call for an exception for educational use of the internet. These libraries would be inside the educational tent.
Can AUCC be far behind?
It will be interesting to see what position the public libraries take.
HK
Can AUCC be far behind?
It will be interesting to see what position the public libraries take.
HK
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