More on Maple Leaf

Even if the Toronto Maple Leafs are out the picture, the official Maple Leaf is not. There's an update of the story of the battle imbroglio about Canada's Maple Leaf in the EU, which I commented on the other day.

Here's Peter O'Neil's Canewst story of May 20, 2009.

Kahle on Google Book Settleemnt

(Internet Archive)

Brewster Kahle, who is the founder and director of the quite amazing Internet Archive, and has somehow managed not to be sued himself as far as I know, has come out explicitly opposing the Google Book Settlement, especially because he believes that it will give Google a monopoly on the exploitation of orphan works. He believes that courts should prevent and not confer monopolies and wants to see legislation instead.

Read this for sure in today's Washington Post.

HK

Intimates™ at INTA

Elle Macpherson Intimates™ @ Liverpool Daily Post

Trade-mark (CDN spelling) colleagues from around the globe, including my firm, are gathered in Seattle, inter alia, to hear Elle Macpherson deliver an undoubtedly interesting keynote address at this years' INTA (International Trademark Association) conference.

The ever vigilant, diligent and long suffering scholars at IPKat report on her disquisition. She is said to have spoken "eloquently and fluently of her brand -- Elle Macpherson Intimates™." Despite Ms. Macpherson's appearance, IPKat advises that it was "the lovely Richard Heath [picture omitted, speaking about domain names] who melted all our hearts with talk of expanding private/public partnerships, putting the can on ICANN so far as introducing more general top-level domains is concerned, establishing regional councils and coordinating their assault on counterfeiting, and so on." Trade-marks lawyers and agents are indeed true professionals and always focus first on policy priorities.

In the interest of research on brand exposure, innovation and protection, you may wish to pursue further study of Ms. Macpherson's website here. which uses "Flash" techniques in more than one sense. I must say that the Fordham Conference was never quite like this.

I, however, missed out on all of this stimulating intellectual excitement. Patriot that I am, I remained here in Ottawa to celebrate Victoria Day.

HK

Woody Allen Scores Successful Settlement (+ Canadians in the news)

Woody Allen has scored a 5 million settlement - half of the $10 million he had demanded from American Apparel for the unauthorized use of his image as seen above, apparently taken from that lovely old film Annie Hall. No bad indeed from his viewpoint, taking everything into account.

Here's the BBC take on it.

The unhappy founder and CEO of American Apparel is Dov Charney, a Canadian. Charney claims his insurance company made him settle. It would have made an interesting trial, to be sure.Here's Charney's interesting press release

Charney and his company (which he has sold but still runs) have been reported as having other legal problems as well. See also here. And lots of other places. Here's the NY Times take on the settlement and Mr. Charney's other troubles. According to the NY Times, "Mr. Charney, who has admitted in interviews to sleeping with employees, has faced several sexual harassment lawsuits since 2005."

Speaking of creative Canadians whose business involves IP, Conrad Black is no doubt pleasantly surprised to learn that he will get his day (actually an hour) before the US Supreme Court on the issue of:

Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.

For those that follow these things, here are some links:

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

And here's David Akin's perceptive take.

HK

News Aggregators as "Tapeworms"

There was much hyperbole at the recent Fordham conference about how news aggregators are, in the words of one of Rupert Murdoch important lieutenants and the editor of the Wall Street Journal, “parasites or tech tapeworms in the intestines of the Internet”.

My attempt to ask exactly how news aggregators that index and link to stories in online newspapers infringe copyright was, regrettably, not answered.

Google News, for example, provides links to countless stories that one would never find otherwise. Although the newly made over format is inexplicably worse in some respects than it was before, it can still be used - albeit with much more difficulty - for such useful purposes as finding the "latest" story on a particular topic of interest. Any source site can, as I understand, opt out. Few do - presumably because the exposure is more often than not beneficial.

I don't know whether or not Google "reproduces" on its servers the stories to which it links, and if so whether ephemerally for indexing purposes, or more permanently. If the reproduction is ephemeral, I don't know how long it lasts and how it works. If there is "reproduction" involved, I would imagine that there is an even better fair use argument under American law than is the case in the litigation which is now in limbo in the Google Book Settlement saga. The obvious difference is that there are significant chunks of scanned books available on Google servers, whereas Google News normally provides only a few words, the occasional thumbnail picture, and a link to the actual source.

What I do know is that, in most cases, the link on Google takes me directly to the Toronto Star, San Jose Mercury, Washington Post or whatever site to which it points - where I just might click on an ad and generate some revenue for one or more parties. I have access to the most famous and most obscure newspapers from around the world - with aggregation based on a vast choice of country based templates. Since few people subscribe to more than one paper, and even libraries can't subscribe to all papers, this is surely a useful and economically productive development.

For example, Google News took me to this op-ed in the Washington Post dated May 16, 2009, which is essentially an attack by a couple of Washington lawyers (Bruce W. Sanford and Bruce D. Brown) on Google News. Among other things, they suggest:

-- Bring copyright laws into the age of the search engine. Taking a portion of a copyrighted work can be protected under the "fair use" doctrine. But the kind of fair use in news reports, academics and the arts -- republishing a quote to comment on it, for example -- is not what search engines practice when they crawl the Web and ingest everything in their path.

-- Federalize the "hot news" doctrine. This doctrine protects against types of poaching that copyright might not cover -- the stealing of information not by direct copying but simply by taking the guts of the content. While the Internet has made news vulnerable to pilfering because of the ease of linking from one site to the next, the hot-news doctrine has limited use because it is only recognized in a few states.

Both of these are frankly regressive suggestions that would serve to perpetuate a business model that goes back more than a century and is doubtlessly much beloved by Rupert Murdoch. Much as I disagree with this article, I never would have found it without Google News.

The battle over whether the providers of news aggregation services and other "information location tools" need to be made explicitly subject to copyright liability or explicitly sheltered from it is bound to loom large in Canada and elsewhere.

But, whatever is killing newspapers, I have yet to understand how Google News is part of the problem.

HK

The Full Meaning of "Fulsome"

(Speaking of "cash" and "fulsome", this is Folsom Prison, made famous by Johnny Cash. Different spelling, different context).

The word "fulsome" has come up lately in much news and comment, for example here.

"Fulsome" is a very ambiguous and imprecise word that is best avoided in the legal realm. Its meanings range from “abundant" or "copious” or "comprehensive"on the one hand to “excessive” or “offensive” or "disgusting" or "insincerely lavish" on the other. Therefore, it ought to be used with great care, if at all, especially with a witness who is wont, at suitable times, to answer a question only in the most precise, limited and literal meaning that the witness can construe. Such a witness could respond to a request to provide a "fulsome" answer in quite different and not necessarily predictable ways, any or all of which may well fit the definition of "fulsome."

Here are two dictionary entries for "fulsome":

Merriam Webster:

Main Entry:

ful·some

Pronunciation:

\ˈfu̇l-səm\

Function:

adjective

Etymology:

Middle English fulsom copious, cloying, from full + -som -some

Date:

13th century

1 a: characterized by abundance : copious fulsome detail — G. N. Shuster> <fulsome bird life. The feeder overcrowded — Maxine Kumin> b: generous in amount, extent, or spirit fulsome in praise of the plane's crew — Don Oliver> fulsome victory for the far left — Bruce Rothwell> fulsome, the farewells tender — Simon Gray> c: being full and well developed fulsome, limpid voice — Thor Eckert, Jr.>2: aesthetically, morally, or generally offensive <fulsome lies and nauseous flattery — William Congreve> fulsome rogue — George Villiers>3: exceeding the bounds of good taste : overdone fulsome chromium glitter of the escalators dominating the central hall — Lewis Mumford>4: excessively complimentary or flattering : effusive fulsome — A. J. Liebling>

— ful·some·ly adverb

— ful·some·ness noun

usage The senses shown above are the chief living senses of fulsome. Sense 2, which was a generalized term of disparagement in the late 17th century, is the least common of these. Fulsome became a point of dispute when sense 1, thought to be obsolete in the 19th century, began to be revived in the 20th. The dispute was exacerbated by the fact that the large dictionaries of the first half of the century missed the beginnings of the revival. Sense 1 has not only been revived but has spread in its application and continues to do so. The chief danger for the user of fulsome is ambiguity. Unless the context is made very clear, the reader or hearer cannot be sure whether such an expression as “fulsome praise” is meant in sense 1b or in sense 4.

Random House:

–adjective
1. offensive to good taste, esp. as being excessive; overdone or gross: fulsome praise that embarrassed her deeply; fulsome décor.
2. disgusting; sickening; repulsive: a table heaped with fulsome mounds of greasy foods.
3. excessively or insincerely lavish: fulsome admiration.
4. encompassing all aspects; comprehensive: a fulsome survey of the political situation in Central America.
5. abundant or copious.
Origin:
1200–50; ME fulsom. See full 1 , -some 1

Related forms:
ful?some?ly, adverb
ful?some?ness, noun

Usage note:
In the 13th century when it was first used, fulsome meant simply “abundant or copious.” It later developed additional senses of “offensive, gross” and “disgusting, sickening,” probably by association with foul, and still later a sense of excessiveness: a fulsome disease; a fulsome meal, replete with too much of everything. For some centuries fulsome was used exclusively, or nearly so, with these unfavorable meanings.
Today, both fulsome and fulsomely are also used in senses closer to the original one: The sparse language of the new Prayer Book contrasts with the fulsome language of Cranmer's Book of Common Prayer. Later they discussed the topic more fulsomely. These uses are often criticized on the grounds that fulsome must always retain its connotations of “excessive” or “offensive.” The common phrase fulsome praise is thus sometimes ambiguous in modern use.

Usually, when lawyers say "fulsome", they really mean "full." I trust that the foregoing has been a full if not fulsome explanation.

HK

P2P & the (skinny) Long Tail Theory

(Wikimedia)

There's an interesting looking new paper from the in-house economist at PRS and Eric Garland of Big Champagne on the P2P and the Long Tail theory.

Here's the abstract:

The theory of the Long Tail first came to light in
Wired Magazine in October 2004, as legal digital
music services like iTunes and eMusic were
taking off. However, illegal music services like
Napster, Grokster or Kazaa had been around,
providing digital music fans with a massive
choice of music catalogue long before such
choice was legally provided. As a result, the
well-known anomaly of the digital music world
was reinforced - legal services constantly play
catch-up with illegal services, and the
enforcement of copyright persistently lags
advances in technology. With these issues in
mind, and the infamous Pirate Bay still very
much in the news (and still on folks’ desktops),
what does the Long Tail distribution profile of
hits and niches look like in the world of massive
choice that is P2P? Will Page teamed up with
BigChampagne's Eric Garland to figure it all out.
The following Insight paper is a bit longer than
those previously released by PRS for Music.
As such, we thought it best to give the reader,
upfront, a sense of where we are headed. In the
first section of this Insight paper, we will be
releasing the results of a critical inquiry into the
music usage patterns within file-sharing
networks. Particularly, would a so-called long
tail or a pinhead pattern describe the relative
popularity of music files within these networks?
In the second section of this paper, we will dig
into the 'Wherefores' - particularly issues of
supply and demand - underlying the usage
pattern we found. In the final section, we will
consider long-term trends in P2P activity
alongside some new behaviours that seem to
be emerging. We will then wrap this discussion
up with a few final thoughts on the 'paradox of
choice'.

HT to the 1709 blog.

HK

Justice Vancise Reappointed to Copyright Board

Justice William J. Vancise, who has shown considerable enthusiasm in his role as Chairman of the Copyright Board of Canada for the last five years, has been reappointed as Chairman for another five years. Here's the official news release.

HK

Bono Bonanza - Three Strikes and Three Bonos

MSNBC European Voice US Congress

It seems that Guy Bono (above, centre), Socialist Member of the European Parliament from France, doesn't like the "three stikes" bill and will fight it from Brussels.

BTW, here's the best description I've seen to date of the French HADOPI law, naturellement from IP-Watch.

Meanwhile, there's another Bono, the rightly renowned leader of U2 and proponent of many worthy causes. The manager of that band is prominently on record that:

The French government should be congratulated – it is proposing a law that is a workable solution to the problem of online piracy. It has brought together ISPs and content industries in a way that will effectively protect music and film rights, while respecting important consumer freedoms.

Then, there's the late Sonny Bono, musician and congressman, who also had some interesting thoughts on strong copyright, according to his widow, Congresswoman Mary Bono:

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.

Sonny probably would have loved "three strikes" - and extended the ban on internet access to "forever", in the interest of consistency.

So, I'm left to wonder about the answer to the proverbial question - cui bono?

Of one thing readers may rest assured - this blog is emphatically undertaken pro bono.

HK

Vive la France?

"

"Three strikes" has just hit a home run in France. But count on extra innings with the EU, where confrontation is imminent.

So - French downloaders, file sharers, and other "pirates" and anyone wrongly accused thereof three times along with their entire household will soon be in terror and hiding from the French authorities. Inspector Clouseau will be tracking "les pirates".

What would that great freedom fighter Charles de Gaulle have said? Perhaps:

• Vive la France!
• Vive la résistance!
  
• Vive l'internet libre!

HK

PS: don't miss Ed Felten's brilliant take on this, HT to MG.

The Maple Leaf Forever? - Maybe not in Europe

Well, the fur is flying fast in Europe and it’s all about Canada.

My esteemed fellow feline fanciers and IP afficionados at IPKat have brought to world attention the case of the attempted appropriation of the Canadian Maple Leaf - an “official” national emblem - by a private company called American Clothing Associates SA (ACA). It seems that ACA sought registration in the EU for the mark above as a Community trade mark for ‘leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery’ (Class 18), 'clothing, footwear, headgear’ (Class 25) and ‘tailoring; taxidermy; bookbinding; dressing, processing and finishing of skins, leather, furs and textiles; photographic film development and photographic printing; woodworking; fruit pressing; grain milling; processing, tempering and finishing of metal surfaces’ (Class 40).

Whether ACA sells seal skins and fur from Canada is unknown. Could that be the reason it covets our maple leaf?

To make a long story short, the examiner and the first Board of Appeal rejected registration for both classes on the basis that article 6ter of the Paris Convention protects national emblems. To everyone’s surprise, however, the Court of First Instance (CFI) allowed registration for services - on the basis that the Community legislation did not forbid it and that legislation was not inconsistent with the Paris Convention in the CFI’s view.

The case is now before the European Court of Justice (ECJ) and the Advocate General’s opinion has been published, which is available here. These “opinions” are not judgments but are usually followed by the Courts. The Advocate General would reverse the CFI and deny registration both for goods and services. My friend and fellow cat fancier Jeremy feels that this may be good policy but not necessarily a literally correct reading of the legislation and the treaty. He says:

The IPKat suspects that, on policy grounds if for no other reason, the Court would prefer to reach the conclusion regarding service marks that has been proposed by the Advocate General, but wonders how sound his arguments are. What we have here is really an argument that you have to give effect to the essential function of the Convention, which is defined by the broad terms of its preamble rather than the narrower substantive provisions by which its members are bound. It is inconceivable that the legislative intent was to create and apply a strict distinction between marks for goods and services, but what we are dealing with here is an absence of intention rather than a positive -- and many people would prefer Europe's highest court to apply the law rather than to create it.

It will be interesting to see how this turns out. It would be astonishing if national emblems can be taken for use as service marks.

I shall try to find out why Canada apparently has taken no part in this exercise. One would think that our Government had an interest to protect.

BTW, they love maple syrup in Europe. Let us close with a heart warming rendition of "The Maple Leaf Forever":

HK

UPDATE: Here's a story in the Ottawa Citizen on May 20, 2009 about this from Peter O'Neil.

Competition Curiousities in Canada

I'm not an big hockey fan. Much more of an opera buff, frankly. But I'd love to see another NHL team in southern Ontario. If the Leafs can't bring the Stanley Cup back to Toronto, where it belongs (at least every forty years or so), then maybe another team can bring it at least close to Toronto - e.g. Hamilton.

But it's kinda odd that Minister of Finance, Jim Flaherty, who has nothing to do with the relevant operations of the Competition Bureau, is saying that there could be a role for the federal Competition Bureau involved in the NHL Coyote debate. This could be particularly interesting given the following provisions relating to professional sport in the Competition Act:

Conspiracy relating to professional sport

48. (1) Every one who conspires, combines, agrees or arranges with another person

(a) to limit unreasonably the opportunities for any other person to participate, as a player or competitor, in professional sport or to impose unreasonable terms or conditions on those persons who so participate, or

(b) to limit unreasonably the opportunity for any other person to negotiate with and, if agreement is reached, to play for the team or club of his choice in a professional league

is guilty of an indictable offence and liable on conviction to a fine in the discretion of the court or to imprisonment for a term not exceeding five years or to both.

Matters to be considered

(2) In determining whether or not an agreement or arrangement contravenes subsection (1), the court before which the contravention is alleged shall have regard to

(a) whether the sport in relation to which the contravention is alleged is organized on an international basis and, if so, whether any limitations, terms or conditions alleged should, for that reason, be accepted in Canada; and

(b) the desirability of maintaining a reasonable balance among the teams or clubs participating in the same league.

Application

(3) This section applies, and section 45 does not apply, to agreements and arrangements and to provisions of agreements and arrangements between or among teams and clubs engaged in professional sport as members of the same league and between or among directors, officers or employees of those teams and clubs where the agreements, arrangements and provisions relate exclusively to matters described in subsection (1) or to the granting and operation of franchises in the league, and section 45 applies and this section does not apply to all other agreements, arrangements and provisions thereof between or among those teams, clubs and persons.

1974-75-76, c. 76, s. 15.

(emphasis added)

S. 45, of course, is the general "conspiracy" provision of the Competition Act.

The Minister said:

“We have a competition bureau and we have a competition tribunal in this country and if someone was of the view that the competition laws of Canada were being violated those would be the avenues to follow,'' he told reporters after a speech in Hamilton.

Mind you, he did say this in Hamilton, which may explain at least something.

But, meanwhile, where has the Competition Bureau been while Bell Canada has swallowed up Virgin's cell phone operation in Canada? Or on Ticketmaster, where Industry Minister Tony Clement had to place a wake up call to the Bureau?

HK

Some Possible Canada EU FTA IP issues

The Canada/EU FTA negotation process is underway. The EU has published a consultation document (HT to Jamie Love) asking what stakeholders think of Canada.

From an IP standpoint, there are many clear opportunities and pitfalls for Canadian interests depending on point of view. For example, consider the following - which apart from the first and the above illustrations relate to copyright law:

1. The EU is very aggressive on geographical indications. Does Canada want to take away the right of its food manufacturers, retailers and restaurants to sell domestically made products such as the following that we have referred to for years as:
a. "parmesan" cheese
b. “dijon” mustard
c. “prosciutto” ham?

2. The EU is has a life plus 70 year copyright term and is heading towards a 70 year term for sound recordings. The EU will clearly not harmonize downwards to meet Canada on this. Canada will be under great pressure to harmonize "upwards" to these lengthy terms. This would clearly be highly controversial in Canada.

3. The EU will doubtless press for quick Canadian ratification of the 1996 WIPO internet treaties, even though the EU has not ratified these treaties to date and has been claiming that such ratification is imminent for many years.

4. The EU has a very complex labyrinth of laws concerning parallel imports or "grey market" products. Essentially, they amount to a strong "Fortress Europe" regime to keep parallel imports out but such products are allowed to flow freely within the EU if they have been imported with the appropriate "consent", whatever that may mean. If goods can flow freely between Canada and the EU, the EU will probably want Canada to drastically change its laws to tighten up the possibility of allowing parallel imports into Canada because Canada could become a "back door" to Europe. This could prove costly for Canadian consumers, because IP has hitherto been essentially ineffective to block parallel imports of consumer goods into Canada, except for books. The EU is generally a very "high price" market for the types of goods that are subject to parallel trade, perhaps in large part because of its IP policies on parallel imports.

5. The EU has much more a much active antitrust policy and enforcement mind set and mechanism than Canada, and is extremely cognizant that IP rights are prone to abuse and other anticompetitive practices.

6. The EU will no doubt press for expanded ex officio border actions without Court orders that could interfere with legitimate trade and may not be necessary or desirable from a Canadian standpoint. This effort will no doubt be linked to the still secretive ACTA process.

7. The EU also has a rather strange database protection regime, which has led to some odd results in terms of "extraction" of information. Whether the EU will press for this remains to be seen.

I have not yet considered patent or trade-marks law, or the seal hunt.

What is a Sound Recording? ...cont'd

On Thursday, May 7th, 2009 the Copyright Board will hold an oral hearing on the preliminary matter of whether the definition of “sound recording” in the Copyright Act excludes a sound recording embodied in a sound track of a cinematographic work, in the context of whether movie theatre owners and television broadcasters must pay a tariff to owners of rights in sound recordings.

The Act says:

"sound recording" means a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work;

(Emphasis added)

While the meaning of this definition has seemed to be clear up until now, the NRCC has decided to try to assert a right to be paid for the use of sound recordings that are part of the soundtrack of films. This hearing should be interesting, considering the rather complex and lengthy arguments filed on both sides by some very experienced counsel. The word “absurd” seems to loom large in arguments on both sides of the fence.

The last time a hearing of this nature on a such a basic issue took place involved the CPCC's unsuccessful attempt for the second time in the “iPod tax” matter to collect levies for the sales of digital audio recorders, despite the fact that the Act refers to “medium” and not to “device” and despite the fact the Federal Court of Appeal had denied the same thing just over a couple of years earlier and the Supreme Court of Canada had refused to hear an appeal on the issue.

As I pointed out in February, for the upcoming hearing, the NRCC has filed a 30 page memo with references to law from the USA, UK and mostly Australia - and relatively little about Canada. Perhaps this is because the Canadian statute clearly speaks for itself in this instance. Interestingly, the Supreme Court of Canada has twice recently refused to follow Australian copyright precedents that were essential to the arguments being advanced by ultimately unsuccessful plaintiffs, notably in the CCH and Kraft cases. Anyway, we shall see. Either way, this is likely to end up in the Federal Court of Appeal.

This proposed tariff was filed on May 31, 2008. This preliminary motion will be heard just over 11 months later May 7, 2009. By comparison, in the “iPod tax” matter (in which I was involved), the tariff was filed on February 10, 2007 and the preliminary motion was heard about four months later in June of 2007. The Federal Court of Appeal finally disposed of the matter in exactly 11 months from the initial filing of the tariff. In the current instance, the schedule is apparently much slower.

HK

Microsoft Scores Large Damages Award against PC Village et al

Microsoft has just been awarded $250,000 by the Federal Court for the sale of two computers sold with 15 unauthorized copies of Microsoft programs. This includes statutory damage awards of $10,000 for each infringing copy - which is what Microsoft apparently asked for - plus $50,000 in punitive or exemplary damages plus $50,000 in costs. The awards are against some companies and two specific individual employees. Even if the companies are judgment proof, the judgment is enforceable against the individuals and includes injunctive relief.

Although this was a default judgment, it carefully sets out the reasoning process and reviews the applicable case law on statutory damages. It is interesting that these actions were initially defended by a prominent IP firm.

Canada's copyright laws do have teeth when enforcement is clearly warranted and when the plaintiff is prepared to take the necessary steps to go through the judicial process.

Here's the judgment in Microsoft v. PC Village et al.

HK

Canada and the 301 Priority Watch List - “Now She's Hit the Big Time in the USA”

Canada has finally made it to the top level of the USA's “Special 301" list, as I have recently predicted. Here's the scoop, according to the USTR, which says that:

Canada is being elevated to the Priority Watch List for the first time, reflecting increasing concern about the continuing need for copyright reform, as well as continuing concern about weak border enforcement.

Canada is arguably the star of this year's report. Here's the portion on the Report featuring Canada:

Canada will be added to the Priority Watch List in 2009. The United States appreciates the high level of cooperation between our two governments in many important bilateral and multilateral IPR initiatives. The United States also welcomed the Government of Canada’s reaffirmation earlier this year of its 2007 and 2008 commitments to improve IPR protection and enforcement. However, the Government of Canada has not delivered on these commitments by promptly and effectively implementing key copyright reforms. The United States continues to have serious concerns with Canada’s failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties. The Unit ed States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada. Canada’s weak border measures continue to be a serious concern for IP owners. The United States hopes that Canada will implement legislative changes to provide a stronger border enforcement system by giving its customs officers the authority to seize products suspected of being pirated or counterfeit without the need for a court order. The provision of additional resources and training to customs officers and domestic law enforcement personnel would enhance IPR enforcement. The United States will continue to follow Canada’s progress toward providing an adequate and effective IPR protection and enforcement regime, including near term accession to and implementation of the WIPO Internet Treaties and improved border enforcement.

Meanwhile, it doesn't hurt to rhetorically ask again and again when the USA intends to:

1. Comply with and stop flouting the nine year old WTO Ruling as to its violation of the Berne Convention in the “s. 110" matter, by denying royalties to composers and authors for performances in countless small business establishments;
2. Get counterfeit merchandise off the street corners of midtown Manhattan; and,
3. Generally do something about the dozen or so ways in which American copyright law is weaker and worse than Canadian law, because Canada's is stronger and better, as I outlined at the Fordham Conference in 2008?

It's also useful to recall one of the last newpaper interviews given by the late, irreplacable and uniquely authoritative Sir Hugh Laddie who told The Times in a story on June 3, 2008 a few months before his death last year "Of course there is counterfeiting in China, but the same goes on in the US and Europe. Pro rata, the biggest source of pirated computer software in the world in the US.”

Canada is now in interesting company with China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Israel, Pakistan, Thailand, Venezuela.

Fortunately, Canada has traditionally taken this exercise with the appropriate grain salt:

In regard to the watch list, Canada does not recognize the 301 watch list
process. It basically lacks reliable and objective analysis. It's driven entirely by
U.S. industry. We have repeatedly raised this issue of the lack of objective
analysis in the 301 watch list process with our U.S. counterparts.

I also recognize that the U.S. industry likes to compare anyone they have a
problem with, concerning their IPR regime, to China and the other big
violators, but we're not on the same scale. This is not the same thing. If you
aren't on the watch list in some way, shape, or form, you may not be of
importance. Most countries with significant commercial dealings are on the
watch list.

(House of Commons, Standing Committee on Public Safety and National Security, No. 35, 1st Session, 39th Parliament (March 27, 2007), at 1150 (testimony of Nancy Segal).

As I've said before, it's too bad that the USTR can't put the USA on its own "Special 301" list. If analyzed objectively, I've little doubt where it would rank.

HK

Ticketing Ticketmaster?

The Government of Ontario yesterday introduced legislation to create an offence when related primary and secondary sellers make available for sale in Ontario tickets for admission to the same event.

This would presumably deal with the type of situations that gave rise to controversy earlier this year involving some of the Leonard Cohen concerts. It was alleged in some cases that “primary” market tickets were never effectively available to the public and that virtually immediately upon the release of the primary market tickets, or even allegedly beforehand, tickets were only actually available on the resale market through a related seller at drastically increased prices. Here's a news story.

Bill 172 was tabled yesterday by the Hon. Chris Bentley and is available here. It is short, sweet and even elegant in its conception. My concern, however, is that the maximum fine for a corporation is only $50,000. That's a large amount and would be a substantial deterrent if it applies per ticket, but certainly not in many cases if it applies only per event.

If that is the case, the maximum fine could be nothing more than a license fee - and a very small one at that - in many instances. For example, the Air Canada Centre in Toronto has a capacity of 19,800 seats in “full concert” mode. If only half of those seats were illegally resold at an average illegal markup of $200, that would be an illegal profit of $1,980,000 - i.e. almost $2 million. The reseller would presumably make even more from service charges. In such a case, a $50,000 fine would be barely noticeable and less than the cost of a one page ad in the Globe and Mail promoting the event in the first place.

A much higher fine may be needed, if this bill is to accomplish it purpose. Other Ontario statutes, such as the Consumer Protection Act, provide for corporate fines up to $250,000.

Ticketmaster doesn't seem too thrilled with with the Bill.

Another critical issue, moreover, is what the Competition Bureau is going to do about this. They didn’t even see an issue until their Minister Tony Clement told them to look at it. An update from the Bureau would be useful.

HK

Google Deadlines Delayed & Enter Antitrust

The Google settlement deadlines have just been delayed by about four months for the opt out and for the final fairness hearing.

Here's part of the press release:

NEW YORK, April 28 /PRNewswire/ -- The federal court overseeing the Google Book Search Copyright Settlement today extended the Opt-Out Deadline in the case from May 5, 2009 to September 4, 2009 (the "Extended Opt-Out Deadline"). The Extended Opt-Out Deadline is the new date by which class members must decide whether to remain in the Settlement Class and receive the benefits of the Settlement, object to the Settlement, or opt out of the Settlement.

The change in the Opt-Out Deadline has caused the Final Fairness Hearing date to be rescheduled, from June 11, 2009 to October 7, 2009. This is the new date of the hearing for the court to consider whether to grant final approval of the settlement. All other deadlines and key dates in the case remain the same, including May 5, 2009 as the date on or before which a book must have been scanned in order to be entitled to a Cash Payment.

PS:

The antitrust folks at the the US Department of Justice ("DOJ") have entered the fray, announcing, today, to nobody's great surprise, that they have begun an inquiry into the antitrust implications of Google’s settlement. According to the NY Times, there was a turf war (yet again) between DOJ and the Federal Trade Commission as to who would handle this. The DOJ prevailed - to nobody's surprise.

In Canada, we rarely have such competitiveness in antitrust matters between agencies. It could arise between the Competition Bureau and the CRTC - but rarely if ever has - because neither is very interested in antitrust enforcement in the telecom or broadcasting industries. Nor has the Competition Bureau ever exercised its mandate to become involved in Copyright Board matters. The Competition Bureau in Canada has basically taken a pass in recent years on anything involving intellectual property.

HK

The Specter Spectre

Sen. Arlen Specter's defection to the Democrats could be interesting for IP people.

He is said to like big pharma, which has a large presence in his state of Pennsylvania.

He was a bull on the IP Czar(ina) position and getting the FBI more involved in enforcement.

But he is bear on ACTA.

In other words, a "loose cannon" on IP.

Here's what Techdirt has to say about him.

The times in the USA just got a lot more interesting. Specter has always been interested in IP and it's possible that a subcommittee could be put in place to give him some scope.

HK

Google Agrees to Delay Settlement Deadlines

Google itself is indicating that a delay is desirable. Here's the CNET story with lots of links.

HK

"Three Strikes" Strikes Out in UK

UK Minister David Lammy has reportedly taken "three strikes" off the table, according to The Register:

The Government minister responsible for intellectual property has ruled out a 'three strikes' law denying internet access to illegal file sharers. David Lammy said cutting off users was not "the right road" for UK law makers.

HK

Canada Finally Guilty As Charged?

As we await in intense suspense the "Special 301" report from Washington, it is perhaps time for Canada to confess to its past piracy peccadilloes.

The NY Times has a dramatic exposé of Canadian piracy, counterfeiting, intermediary liability and cross border illicit commerce and piracy that has devastated the American music publishing industry by 50%. The American music publishers were sufficiently concerned that they held a three day conference about this "last week."

The thing is that "last week" was the first week or so of June, 1897. The technology involved was newspapers, the post office, classified ads and sheet music.

Here's the link to the NY Times story. See also below.

So, if the USTR can't come up with any current hard evidence for the "Special 301" blast we are expecting momentarily, or as a basis to check iPods and laptops and invade ISPs under ACTA, they can at say that Canada's piracy goes back at least to the 19th century.

Then, there are those who say that:

"The first American "pirate" was probably Benjamin Franklin (1706-90), who was, among other things, a Philadelphia printer who re-published the works of British authors in the eighteenth century without seeking their permission or offering remuneration."

The moral of the story may be that sometimes, maybe, you can step in the same river twice.

Or, that this is a new take on a "blast from the past."

HT to Cory and MG.

HK

Google Book Settlement Deadlines - May 5, 2009

For those who have not been following the Google Book Settlement saga, here is a reminder of the key deadlines:

* Claim your Books and Inserts: You can do this at any time, but in order to be eligible for Cash Payments for Books, you must complete your Claim Form on or before January 5, 2010.
* Opt out of the Settlement:Must be submitted online or postmarked on or before May 5, 2009.
* File an objection or notice of intent to appear at the Fairness Hearing: Must be postmarked on or before May 5, 2009.

There's a growing list of discontents that make strange bedfellows - ranging from Microsoft to the Internet Archive to Prof. Pamela Samuelson. Here's a posting with some good links.

Here's the latest from the NY Times, including reference to a request for delay of four months from the heirs of John Steinbeck and Arlo Guthrie.

The Hon. Marybeth Peters, US Register of Copyrights' comments are reported here.

Add to this a Quebec based publisher's lobby group, as advised by a colleague:

ANEL (Quebec's publisher lobby) issued a press release to instruct members not to take part in the Google Book settlement:

Of note, is this passage:
La position de l’ANEL est fort simple : depuis trois ans, les éditeurs de livres sont à pied d’oeuvre pour développer le marché du numérique selon les règles de l’art en matière de droit d’auteur. L’ANEL combat toute réforme de la loi canadienne qui permettrait une exception pédagogique « numérique »

Article on Barbara Ringer

(Library of Congress)

There's an article about the late Barbara Ringer in today's Washington Post.

HK

Thoughts Following the 2009 Fordham Conference

The annual Fordham IP Conference was held at Cambridge, England this year on April 15 and 16, 2009.

The plenary, copyright and trade sessions were interesting, though not as balanced as we have seen in the past. Moreover, there were several prominent absences of those who were expected to participate this year or who have done so frequently in the past. These included Francis Gurry, the new DG of WIPO, Hon. Marybeth Peters, US Register of Copyrights and Prof. Bernt Hugenholtz.

Hugenholtz is a leading European academic and was a consultant to the EC though his Institute for Information Law. Despite his credentials, his authoritative report recommending against sound recording term extension has been summarily discarded in favour of lobbyists’ positions by the same EC that commissioned it. One can read about this sorry episode here in an important posting by the IPKAT, including the report in question and a very trenchant comment from the late Sir Hugh Laddie who opined on August 22, 2008 shortly before his death:

I think it is worth pointing out that this refusal of the Commission to pay proper regard to the result of thoughtful and independent research is more than a blow to academics. What the Commission has done undermines all of us who support the European Union. One of the functions of the Commission is that of proposing legislation which benefits citizens of the Union as a whole. In that respect it is or ought to be part of the democratic fabric of our society. Commissioning work like that carried out by the Institute for Information Law allows the Commission to look beyond the interests of lobby groups and to take into account interests which do not have the time, expertise, organisation or immediate and direct financial interest to put counter views - including the interests of the public at large. What the Commission has done in this case is little less than a denial of its own responsibilities. Perhaps its motto should be "He who pays wins".

(emphasis added)

Speaking of Sir Hugh Laddie, who died of cancer on November 28, 2008, his absence from this conference was palpable and painful. His contribution was irreplaceable. He never hesitated to speak truth to power and did so often at the Fordham conference. When he spoke, he could not be dismissed, not only because of his position but because he had earned his position. When Hugh was only 29, he won the landmark ruling from Lord Denning that gave the world the “Anton Piller order.” This has proven to be one of the most positive and potent weapons that IP owners have ever possessed in their eternal war against infringement. When he later as a treatise writer and a High Court Judge, former High Court Judge and academic said that IP rights were becoming excessive and counterproductive, everyone had to pay attention. The IP world generally and the Fordham conference in particular has lost its leading advocate for balance and reason. He was only 62.

Anyway, back to Fordham @ Cambridge 2009. On the copyright and trade panels, after hearing repeatedly from several of the same USTR, USPTO, EC, IFPI and MPA people, it seems clear that:

• Enforcement is a major priority of the US government (“USG”) and EU. They will press forward on ACTA.
• Multilateralism, policy making and norm setting in long established institutional fora such as WTO and WIPO are currently obsolete. The USA, EU and Japan are engaged in situational diplomacy. Bilateralism and plurilateralism in ad hoc alliances such as ACTA are seen by the USA, the EU and Japan as currently best serving their immediate interests.
• The USA is doing its best to spin its mixed victory over China at the WTO. Meanwhile, it continues to flout a longstanding and unambiguous WTO finding of contravention of the Berne Convention and TRIPs in the “Section 110" matter. It will be recalled that the USA has exempted countless businesses from a requirement to pay many millions in royalties to composers and authors for public performance, as is the case in virtually all other WTO/Berne countries. But somehow still, the USA continues to preach to other countries about “respect” for intellectual property and international obligations.
• Canada was gratuitously mentioned many times as a problem and is clearly being targeted by these usual suspects - but with no apparent evidentiary basis.
• ACTA will cover parallel imports, if the content owners and the USG have their way. When an influential American lobbyist says the potential effect of ACTA on parallel imports would be a “marginal” problem, then you can assume that parallel imports could indeed be a focus of the ACTA efforts. Other comments suggested that the USA would favour the application of ACTA to parallel imports precisely because it would enable international price discrimination.
• If if ACTA is intended to exclude a "de minimis" number of unauthorized copies for personal use on iPods, laptops, cell phones, etc., border officials would presumably be authorized to make inspections to deterime whether that threshold has been crossed. And one can be quite sure that the RIAA's idea of "de minimis" will be quite different from that of millions of internet users. The RIAA is going after Joel Tenenbaum for just seven songs, and was awarded $222,000 for 24 songs in the Jammie Thomas case (under appeal). The RIAA has sued in is strenuously litigaitng against Joe Tenenbaum for just seven songs.
• Intense pressure will be brought on Canada to empower “ex officio” powers for border measures that have previously and properly been entrusted to the judiciary. This is probably one of the main goals of the USG, and could lead to intense anti-competitive abuse, the potential for which has been recently seen with respect to legit generic AIDS drugs being tied up in transit through the Netherlands.
• “Three Strikes” is a huge priority for the content owners and the USG and the content industries and will be a part of ACTA, if they have their way - notwithstanding the rejection of “three strikes” in every Western democratic country that has considered it to date.
• Despite the earlier promise (or at least the expectation) of a WIPO treaty for the rights of the blind, WIPO Deputy Director Michael Keplinger (whose appointment will shortly expire) indicated that no such thing was in the works. At best, we could expect “soft law.” Whether such an explicit statement reflects the wishes of the new WIPO DG, Francis Gurry, is not known because Mr. Gurry was not present. Of course, the WIPO Secretariat cannot unilaterally decide to launch a treaty process - such a mandate must come from the WIPO General Assembly. But the Secretariat can be very influential in such matters. One would think that a copyright treaty for the rights of the blind is about as close as one could get to a useful, necessary and relatively non-controversial multilateral issue. If WIPO is really unable or unwilling to press forward on this issue, there are bound to be more questions about WIPO’s future role in international norm setting and treaty making. Certain countries may think that they don’t need WIPO in such a role today or even in future. However, things could change very quickly in international politics and economics - especially when - not if - the “BRIC” (Brazil, Russia, India and China) countries (which were not represented on the faculty of this year’s Fordham conference and have not been invited to the ACTA table) assert the power that is rapidly shifting in their direction. Hopefully, the forthcoming SCCR meeting in May will shed some light and accomplish something more than calling simply for another semi-annual SCCR meeting at some presumably pleasant time in Geneva.
• Canada will likely make it to the top level (or bottom, depending on one’s point of view and sense of humour) of this years’ “Special 301" report - expected momentarily.

On the domestic Canadian front, there was an interesting reference in a presentation by an Australian grad student that confirmed that the Canadian library community is still apparently largely oblivious to the potential implications of the CCH v. LSUC decision, and has given it a “markedly muted reception.” This is hardly news - but interesting to hear from down under. The really interesting question is why there is still so little awareness five years after the fact of the potentially liberating results of that the decision. It’s becoming more and more clear that many Canadian librarians and educational administrators are not being fully and/or independently advised of the real significance of this decision.

BTW, if anyone wishes to pay $1,595 for a one day program (which does include lunch) to attend what promises to be an enthusiastic presentation of American government and American content owners’ points of view voiced directly and through Canadian lobbyists on some of the above topics, the Conference Board of Canada is hosting just such an event on May 29, 2009 in Toronto. Here’s the program.

HK

Bordering on Fiction

It’s interesting that the new U.S. Homeland Security Secretary, Janet Napolitano, believes that terrorists have routinely entered the United Sates through Canada — including the perpetrators of the 9/11 attacks. If such ill-informed, clearly harmful and inaccurate myths are really believed by high American officials, the resulting US Government demands could seriously impair ease of travel and increase shipping costs and inconvenience for Canadian businesses. Such measures could render cross border trade uncompetitive in some cases. So much for free trade. Could this all possibly be a disingenuous excuse for more protectionism? Trade lawyers would be shocked, shocked if such were the case.

Speaking of never letting a crisis (whether real or concocted) go to waste, it was apparent at last week's Fordham conference held at Cambridge, England that American USTR and Department of Commerce (USPTO) officials are similarly ill informed about piracy, counterfeiting and Canadian border and IP issues in general. This has clearly driven the USA ACTA and “Special 301" agendas.

The American officials actually do seem to believe that Canada is a major gateway for transhipping fake goods to the USA and that fake goods are actually made here in Canada in quantity. But where is the evidence for this? It seems that a key source of these allegations about Canada is that of Canadian based lobbyists for American content owner interests.

Don't be surprised if, based upon such “evidence”, Canada is promoted to the worst of the worst list on this year's “Special 301" report, expected any day now. Clearly, the Canadian lobbyists who act for their American bosses and profess to be interested in the cause of Canadian artists are getting a lot of traction. Even US Vice President Joe Biden now has Canada in his sights, along with China:

Biden blasted China, saying its intellectual property laws remain "largely ineffective" and will end up "strangling their own creative juices," and compared it to what he described as India's more effective anti-piracy regime. He singled out Canada, a close U.S. ally, as needing stronger laws; it never signed the treaty that led to the Digital Millennium Copyright Act, and a proposal to adopt anti-circumvention restrictions was never adopted.

I'd like to think that our Canadian government is doing its best to inform the US Government of facts, rather than passively letting special interest lobbyists feed unfettered fiction into the American policy making machine.

The fact is that Canada has long had in place very effective border enforcement mechanisms that operate under the jurisdiction of the courts, as they should. “Ex officio” measures that would empower Canadian border officials to decide matters on their own that should be left to the judicial process are not needed or even desirable in Canada. As I've pointed out before, Justice Roger Hughes, who has extraordinary experience as both a Canadian IP litigator and now as a Federal Court Judge, provided an important comment last year at Fordham that takes the wind out of the sails of those who advocate "ex officio" actions at Canadian borders:

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.

The fact is that counterfeit and pirated products are not freely and openly available on the main streets of major Canadian cities, as they are in New York City, for example. Why blame Canada for a problem that the USA cannot or will not address even in mid-town Manhattan?

As to piracy and counterfeiting in general, the late Sir Hugh Laddie told The Times in a story on June 3, 2008 a few months before his death last year:

"Of course there is counterfeiting in China, but the same goes on in the US and Europe. Pro rata, the biggest source of pirated computer software in the world in the US.”

It’s time for facts about piracy, counterfeiting and what happens at borders. We need to move beyond lobbyists’ fabrications bordering on fiction.

HK

PS:

BTW, if anyone wishes to pay $1,595 for a one day program (which includes lunch) to attend what promises to be an enthusiastic presentation of American government and American content owners’ points of view voiced directly and through Canadian lobbyists on some of the above topics, the Conference Board of Canada is hosting just such an event on May 29, 2009 in Toronto. Here’s the program.

Notice of Vacancies at the Copyright Board

As expected, vacancies have been announced at the Copyright Board, and were posted in the Canada Gazette on April 18, 2009. Under the statute, terms are for a maximum of five years and can be renewed only once. Not all members have had their appointments renewed in the past. There can be up to five members, who can be full or part-time. The notice refers to a full-time position for the Vice-Chairman and Chief Executive Officer and part-time member positions, of which there could be up to two appointments.

This year, there could be up to four vacancies, including the position of Chairman. Interestingly, for the first time since the beginning of the “new” Copyright Board era in 1989, the Government is looking for “part-time” appointments for positions other than the Chairman and Vice Chairman. This may reflect the fact that live hearings are infrequent and have rarely involved more than three members.

The Chairman must be a sitting or retired judge of a superior, county or district court. The current Chairman is Justice William Vancise, a supernumerary judge of the Saskatchewan Court of Appeal, who was appointed five years ago. He could be reappointed for a second term.

It will, of course, be a challenge to the Government to fill the potential vacancies referred to in the Canada Gazette with available persons who are sufficiently expert on the one hand and who would be perceived as sufficiently impartial on the other.

The deadline for application for the vacancies referred to in the Canada Gazette is May 4, 2009.

HK