Excess Access Copyright Tariff Ruling

While both sides will no doubt claim some element of victory, the Copyright Board's decision today in the K-12 reprography matter is bad news for Canadian educators, librarians, students, and taxpayers. The price of knowledge just went up a lot today in Canada.

Access Copyright (“AC”) was opposed by the provincial Ministers of Education (other than Quebec) and each of the Ontario School Boards (“the Educators”). It took that Board almost two years to issue a decision that essentially divides the amount sought by AC ($8.92) and the amount proposed by the Educators of $2.43 per FTE more or less down the middle to arrive at $5.16 per FTE. The exact arithmetic average would have been $5.68. Oh yes - there is a lot of detail about fair dealing - with a little bit of water in everybody's wine.

The amount per FTE paid for on behalf of K-12 students will more than double to $5.16 from the amount previously paid. With almost 4 million FTEs, and an increase of almost $3 per FTE over the previous negotiated rate, Access Copyright will reap a windfall of about $12 million a year from Canadian taxpayers - not counting those in Quebec.

Moreover, the decision eliminates the admittedly dubious “indemnity” scheme operated by Access Copyright for works not in its repertoire. The Board accepted Access's argument, without supporting evidence, that more than 99 per cent of works reproduced by educational institutions are currently part of its repertoire. That seems to be very counter-intuitive, considering the vast number of publishers and authors from around the world who have never heard of Access Copyright and the iffy international payment system for reprographic rights.

So - taxpayers in English Canada will pay out $12 million more per year and lose their indemnity scheme, which was about the only sensible thing about the previously negotiated deal from the user viewpoint, even if Access Copyright is not a licensed indemnity/insurance company.

The fair dealing analysis is complicated and inconclusive overall - but overall probably a real setback for users. The Board ruled that what the teachers do for the students (“upstream dealing”) isn't fair dealing. On the other hand, criticism by students needn't be communicated to the public to invoke fair dealing.

But the main problem with the fair dealing issue may have been that the Educators had agreed at an early stage of these proceedings to a survey methodology that resulted in evidence that by their later admission “needs to be collected differently” in light of the CCH v. LSUC case, even though it was obvious at the outset that the landmark CCH decision could and should affect what happens in Canadian schools. The Educators then tried to use a law professor's opinion to show that “most, if not all, photocopying in schools is fair dealing”, an approach that the Board naturally rejected, since it is for the Board to make this determination, not a professor. (If only the Board were so hard nosed on some of the other opinion evidence it accepts without question or even qualification of the witness!)

Incidentally, as I've said before on many occasions going back to the early days of this blog in early 2006, the educators in Canada - particularly the K-12 crowd under CMEC - apparently are still largely ignoring the potentially empowering and money saving potential of the CCH decision. CMEC still publishes and endorses and countless educators and school officials in Canada rely upon Copyright Matters! by Wanda Noel and Gerald Breau, which is aimed at teachers and which, as I have noted before, is overly cautious and was obsolete at the time of publication of the second edition in 2005. This is because it does not mention or appear to even take into account the landmark 2004 decision of the Supreme Court of Canada in CCH v. LSUC that opens the door to fair dealing for purposes of research or private study, and says in crystal clear language that copying of an entire work may well be fair dealing. As well, the CMEC publication perpetuates what is essentially an urban myth - that copying anything more than 10% of a work is illegal.

It may be that this excessively cautious approach to the CCH decision influenced the approach taken to the survey methodology that the Educators later tried to resile from.

In any event, and for whatever reasons, by the time the hearing took place, now almost two years ago, the evidence that the Educators may have needed on fair dealing may not have been available.

The Board used its usual complex methodology of crunching numbers to establish values - all of which is difficult to understand and normally impossible to reverse on judicial review.

This decision will set a dreadful precedent for higher education. If K-12 students generate $5.16 per year for AC, what will university students be worth? AC will argue that they will be worth several times more.

This will result in a huge windfall for AC now and down the line, which is suffering now from the decline of reprography in general. With the internet, reprography is much less important. AC will try to go digital. This could impact well beyond schools and universities to ISPs and others, especially if the educators get their educational exception for the internet and its inevitable “a contrario” implications. The educators enthusiasm for this proposed exception can ultimately only benefit AC.

Meanwhile, AC has budgeted an astonishing $915,000 for “Copyright Board applications” for 2009 - when there are no AC hearings scheduled. You can bet that this is going straight into the Mother of all cases aimed at post secondary copying. Will anyone step up to the plate to fight this really hard with a truly adversarial approach aimed at saving the taxpayers tens of millions of dollars? Based upon what we have seen in the past, it's very unlikely.

BTW, the real incongruity here is that American schools and universities simply don't face payments of this type. Worse still, these payments and the enormous bureaucracy required to support them also put a big chill on the use of material in the classroom - again, something that doesn't happen in the USA or other countries that are leaving Canada in the dust when it comes to competitiveness and innovation.

All of this is something to consider when we revise our Copyright Act and think about Canadian competitiveness and innovation. We have a series of incredibly picky little exceptions for educators and librarians, who have fared poorly in the legislative forum in the past. We need to think outside the box - and look no further than the USA to adopt classroom exceptions and make other changes such as “such as” language in the fair dealing provisions. Otherwise, Canadian taxpayers will get poorer, students will get less educated, and only collectives and their managers and counsel will continue to benefit.

Do we really want to pay more for less education?

Both sides may have a tricky task in succeeding in judicial review in this instance, because most of what the Board did appears to involve the assessment of evidence. There may be some scope for review on the legal results flowing from that evidence, but it may be hard to extricate the evidence from the legal issues - which would mean that the Board gets more deference.

However, given the deep and ultimately taxpayer funded pockets on both sides, a judicial review attempt by one or both sides would not be surprising.

HK

PS - there will be a whopping four year retroactive liability here of about $18 million a year starting in 2005-2006. That's about $72 million to date, of which about $40 million is additional to what was already presumably being paid at the old rate, allowing for a token discount of 10% to soften this blow. It'll be really interesting to see what AC does with all of this. Almost two of this four year period involved waiting for the Board to issue its decision after the hearing concluded. In fact, most of the hearing took place in June, 2007 with some follow up delayed unitl October of 2007 due to the illness of a key AC witness.

Copyright Reform Back on Course?

There's very encouraging news from Michael Geist, who was at Monday's exclusive government digital agenda pow wow.

There are strong indications that Ministers Clement and Moore really "get it" when it comes to copyright reform and its relation to innovation, and matters generally digital and cultural.

Minister Clement, who has incredibly important responsibilities for everything from competition to communications to copyright, notes that a lot has changed since Bill C-61. And the twittering, young, and very tech savvy Minister Moore once again prominently notes Michael Geist's tweets as a positive example of all that can be done with the various gadgets that he carries in his pockets and uses so often and so well.

All of these positive statements and strong hints at what could be a very exciting and constructive consultation process can be seen on Michael's posting today.

Lobbying organizations such as CRIA and CMPDA, which have clearly spent a fortune trying to hijack the copyright policy agenda in Canada for their members' special purposes and engage in "policy laundering" regarding their own role, may be worried about ministers who actually care about balance, innovation, cool technology and culture - and who are clearly listening to voices other than those of the usual suspects.

Could Canada get back on track and show some world leadership here? That would be cool indeed.

Clearly, what we are currently seeing in France, the UK, and in the USA is not the way to go. Any smart politician - and both Ministers are clearly very smart - can see that directions such as three strikes, statutory minimum damages against individuals, and digital lock downs are neither good policy nor good politics.

This could be an interesting and hopefully very productive summer.

Hopefully, we finally have the right Ministers, the right officials, the right politics and the right timing to modernize Canada's copyright law in a constructive, balanced and forward thinking manner - rather than resorting to desperate and artificial attempts to preserve failed and obsolete business models.

HK

A Canadian Copyright Policy Laundering Flow Chart

Michael Geist/The Register

Michael Geist has a thorough and excellent analysis today of the role of CRIA and CMPDA in copyright "policy laundering", as he calls it, in Canada - including in the recent Conference Board imbroglio. I had raised some questions about these two organizations in this context on June 17, 2009.

All of this may even be more incestuous than Michael's chart shows. For example, the USTR gets its "301" information from the International Intellectual Property Association ("IIPA"), a Washington advocacy group that runs out of a couple of Washington law offices and is heavily influenced by the US entertainment industries. As I have mentioned earlier, the reports on Canada are prepared with the considerable input of a well known Washington lawyer named Steve Metalitz.

And do you wonder where the IIPA gets its information about Canada?

HK

Boyle on Obama Admin Opposition to Rights for the Blind, etc.

Jamie Boyle - who was one of the pioneers of the articulate and erudite academic movement in favour of balanced copyright has a good piece in the Financial Times today.

It indicates that the Obama administration is opposing rights for the blind due to its deference to the content owners agenda.

Here's his conclusion, re the proposal under discussion at WIPO:

Why oppose this proposal? Scaremongering aside, there is no real threat to anyone’s business model here. But if one sees any limitation of the most extreme version of copyright as a dangerous and ideologically driven attack on property itself, well then, one must fight. This proposal represents the ideas that rights should have limits and that we should harmonise limitations and exceptions as well as rights themselves. It is that principle, the principle of balance, that must be resisted. Even if it puts one in the embarrassing position of – ever so pragmatically – sacrificing one’s blind citizens to an industry agenda. In a world where we have to deal with torture and climate change and the collapse of our economic system, this little piece of moral cowardice is not something many people are going to notice. But it leaves a nasty taste in the mouth, nonetheless.

Save this while you can. These things don't last too long at the FT website.

HK

RIAA: Be Careful What You Wish For

Various tweets from Minnesota confirm that a federal jury as just returned an astonishing verdict of $1,920,000 against Jammie Thomas for downloading 24 songs. That's $80,000 per song.

So I post this now - more in sadness than in anger.

Whether or not Ms. Thomas is the ideal post-card defendant for this type of case (she clearly isn't, since there were obvious credibility issues), and whether or not she had counsel capable of matching the RIAA team at critical stages, this is not a verdict that should please the RIAA.

If a single mother of two kids, age 32, can be whacked for almost $2 million for downloading 24 songs, and the RIAA actually believes that such a verdict should be enforced, can a law that allows this to happen be left on the books for long?

It's important to note that, in the USA, bankruptcy does not necessarily discharge a debt involving "willful" infringement. This was clearly such a "willful" case in the eyes of the jury and the amount of $80,000 per work is more than half of the maximum permitted under the statute for such infringement.

So - the RIAA has probably achieved more than it wished for here. It has the dubious honour of having achieved a damage award of $1,920,000 for downloading 24 songs - a fraction of what millions of American households have probably downloaded without authorization.

Given the civil wrongs caused by drunk drivers, incompetent and/or dishonest doctors and lawyers, polluting corporations, and countless others scenarios, the American justice system should take no pride in this verdict.

It could very well come back to haunt those who are now celebrating it. Maybe sooner rather than later in the form of a constitutional challenge to the damage award.

HK

PS - here's the Ars Technica story.

More Myths about Myths about File Sharing

250,000 legal and levy free P2P songs for less than CDN $200?
Can CRIA seriously say it isn't so?

Richard Pfohl of CRIA has taken on Prof. Michael Geist in a letter to the Editor published in The Star on June 12, 2009 in response to Geist's column on file sharing “myths” published June 8, 2009 The Star.

Mr. Pfohl says:

Michael Geist fabricates more myths than he dispels, and misinforms Star readers about the legality of unauthorized downloading.

Downloading pirated music is not legal in Canada. The copyright law conclusions in the case he cites were overturned on appeal. In fact, the Federal Court of Appeal has subsequently twice ruled that the private copying regime doesn't apply to downloads made to hard drives.

Widespread misunderstanding of this legal fact illustrates precisely why digital copyright reform, and the legal clarity it would provide, is needed in Canada.

As Mr. Pfohl knows. or ought to know, his description of Canadian jurisprudence on downloading music is inaccurate and misleading. The consistent thread of what the Copyright Board said in 2003 and the Federal Court of Appeal said in 2004 and 2008 is that downloading sound recordings onto something that is not an “audio recording medium” may be infringing. For example, the Federal Court of Appeal said in its 2004 decision at para. 147 that:

If, indeed, digital audio recorders (or the memories embedded therein) fall outside the scope of the definition, copyright infringement could result from the use of such devices to private copy.

So - copying unauthorized sound recordings obtained via P2P onto a 120 GB iPod Classic, for example, where the hard drive memory is permanently embedded (don't even think about trying to take it out!) may indeed be infringing - because the iPod as a whole is a "device" and not a medium subject to the levy.

However, a PC internal hard drive that is not “permanently embedded” and particularly an external plug and play hard drive that is clearly not in any sense “embedded” in anything and serves no function other than to be a large memory medium may very well be “audio recording media.” In that case, downloading any sound recording onto them obtained in any way from any source for private use would be legal in Canada, regardless of whether a levy has ever been sought from the Copyright Board. This follows from what the Copyright Board said in 2003 at page 20-21 of this famous decision and, contrary to Mr. Pfohl's assertion, no Canadian Court has ever ruled to the contrary.

A levy-free terabyte external hard drive that now sells for less than CDN $200 can hold about 250,000 songs downloaded via P2P. The fact that this is apparently legal in Canada is the direct consequence of the private copying levy scheme that Mr. Pfohl’s employer, the Canadian Recording Media Association (“CRIA”), so enthusiastically and effectively lobbied for and was given in the 1997 amendments to the Copyright Act. CRIA was short sighted. Mass access to the internet was already in full flight and the concept of the “celestial juke box” was already old news at that time. The Canadian levy scheme has now generated more than a quarter billion dollars. CRIA members whine about the consequences of their legislation all the way to the bank (and indeed incessantly afterwords), but keep on cashing the cheques.

As CRIA must constantly be reminded, “be careful what you wish for.” And hopefully, Government officials, MPs and Ministers will be careful about who they listens to when it comes to Canadian copyright law and sound public policy. CRIA and some of those who speak for it it, have a poor record for foresight, wisdom, credibility and even basic accuracy in these matters.

All of that said, it is by no means clear that well conceived litigation against individual file-sharers (in contrast to mere downloaders) backed up with sufficient, reliable, non-hearsay and convincing evidence would necessarily fail in Canada under current law under some scenarios. CRIA's members were given a green light or at least an orange light to proceed on such a basis by the Federal Court of Appeal in 2005, but have been unable or unwilling to bring forward the necessary evidence to even try. Perhaps they prefer instead to propagate the myth that current Canadian laws are inadequate, to play the role of the victim of mass "piracy", and to demand new, unnecessary and overreaching legislation.

One would have thought that the recent Conference Board of Canada fiasco would have resulted in lessons being learned by copyright lobbyist organizations. Apparently, in CRIA's case, that’s not the case.

BTW, Michael Geist has a prominent new tech savvy fan in high places in the person of the Hon. James Moore, one of the Minsters responsible for copyright, whose tweet on a more recent column of Michael's in the Ottawa Citizen on June 16, 2009 could easily have described the earlier one which so upset Mr. Pfohl:

Excellent column by Michael Geist in the Ottawa Cit. today. Nice to read policy ideas & substance - not just horse race politics & gossip.

BTW, I should disclose that I've been involved as counsel in all of the above cases about which Mr. Pfohl is inaccurately opining.

HK

Still More Conference Board of Canada Fallout

The Conference Board has taken the next step in damage control arising from its recent plagiarism scandal. Here's today's statement.

The most notable and useful disclosure from the Conference Board is that:

The evidence indicates there was undue reliance on feedback from a funder who was deemed to have important technical expertise.

(Emphasis added)

The Conference Board should identify the funder who provided the “feedback”, and why this funder's “deemed” technical expertise managed to effectively poison the process. It should, as a matter of course, identify all funders of all its reports. This is normal practice, and is absolutely essential if a report is to have any serious credibility in academic, policy, business and government circles. The Conference Board must guard against letting its good name be used by special interest lobbyists in what Dr. Michael Geist calls “policy laundering.”

The report in question was to have been rolled out as a key item at a Conference Board conference on May 29, 2009. Here is the program, which shows a list of sponsors and the Advisory Board of that rather imbalanced and expensive event, which, in fairness, covered quite a lot of material other than copyright. Nonetheless, and despite the breadth of the conference, two of the four members of the “Advisory Board” for the conference were the heads of CRIA and CMPDA. These have been two of the most, if not the most, energetic, persistent and successful (in terms of legislative influence) copyright lobbyist organizations in Canada since the 1980's. It's a fair question to ask whether either or both these two well known and well funded organizations (which represent mainly American interests) were among the funders or were otherwise involved in the specific ill-fated research project now in issue.

BTW, here's what it costs to “sponsor” a Conference Board conference.

Interestingly, the Conference Board has engaged Dr. Ruth Corbin to “to review all relevant research and consult multiple sources, and redo the reports.”

The Board indicates that:

When completed, this work will be presented to a multi-stakeholder Roundtable to be held in the fall. We will publish a summary of the Roundtable discussion, reflecting the full spectrum of views on the issue, as an Appendix to the research.

One can only wish Dr. Corbin and the Board luck in sorting all of this out. The scandal may not reside only in the fact that much of the key content of the now withdrawn work was plagiarized but that much of the IIPA material that was apparently recycled as “research” may have been utterly unreliable to begin with. I'm not sure that it's possible to “redo” that kind of work.

HK

PS & Update - the Conference Board did acknowledge the financial support of several coalition or umbrella groups in this case. But that still leaves questions unanswered - namely who was really actively involved in the sponsored research. See comments below.

PS and update #2 - more connecting of dots and about the courageous Curtis Cook, former employee of the Confernce Board, in a Canwest story here.

Digital Britain Final Report

Lord Carter's Digital Britain report can be found here.

More in due course.

HK

Scotch Whisky Association's Appeal Attempt Scotched by Supremes

The Scotch Whisky Association's attempt to get leave to appeal the very sensible decision of the Federal Court of Appeal has - as I predicted - been scotched by the Supreme Court of Canada this morning. (Coram: McLachlin / Abella / Rothstein ).

As usual, with costs and without reasons.

Now, Glenora Distillers in Nova Scotia can have its trade-mark registration of GLEN BRETON for "single malt whisky." The whisky is made in Canada and has never been called "Scotch" whisky by its manufacturer, althougn Justice Sexton of the Federal Court of Appeal did note that "I believe it is fair to say that Glenora has marketed its product as being like a single-malt Scotch in everything but name."

The Federal Court of Appeal had rejected the argument that, by "segmenting" several trade-marks for single malt Scotch whisky that include GLEN, the Scotch Whisky Association could block Glenora's use of the word:

The word “glen,” being a common word and forming part of numerous registered trademarks, is at best a weakly distinctive component of those trademarks. However, by segmenting those trademarks to consider “glen” as a mark on its own, this court would be affording stronger trade protection to that word than is due.

The great irony of this case is that, had the Scotch Whisky Association succeeded in its appeal based upon its rather creative and unprecedented interpretation of s. 10 of the Canadian Trade-marks Act, several of its members might would have found their own trade-marks in jeopardy. Justice Sexton concluded:

In short, success in this appeal would jeopardize the trademarks of many of the Association’s members. In my view, this cannot be the correct result, and is not true to the spirit and purpose of section 10 of the Act. Accordingly, I would allow the appeal, and direct the Registrar to allow Glenora’s application for the registration of GLEN BRETON.

s. 10 provides that:

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

(emphasis added)

HK

Three Strikes Strikes Out

The French Three Strikes law has stuck out in that country's Constitutional Court - - le Conseil constitutionnel:

AFP - France's highest legal authority on Wednesday struck down a key provision of a contested Internet piracy law that set up a new state agency to cut off offenders from the web.
...

The Constitutional Council ruled that "free access to public communication services on line" was a human right, and that only a judge should have the power to strike an individual from the Internet.

(emphasis added)

Here's the breaking story from AFP.

And here's much more detail from Ars Technica

And from Cory Doctorow at Boing Boing.

And here's the decision.

HK

"Copyright War" Online Program Today

REMINDER:

I will be participating today Tuesday June 9 at 3:15 EST in a day long session of online interactive presentations on Copyright Wars hosted by an exciting new enterprise called Brighttalk.com.

I would encourage you check out the other presentations and tune in free - you can see them listed here. Note that Ray Beckerman will be talking about the the RIAA mass litigation campaign at 5:45.

I'll be dealing with ACTA, WIPO and Canada. You'll be able to send in questions in real time...this is interactive.

Hope to see you...

HK

Canadian Bererage Wars

In a kinder and gentler time, before the era when big pharma v. generic Notice of Compliance litigation has almost taken over the Federal Court, Canada used to have lots of litigation about beer and spirits. Indeed, much of Canadian trade-marks law owes its existence to those more mellow days.

Well - beer and spirits are once again in the IP news. This Thursday, we will find out if the Supremes will grant leave to the Scotch Whisky Association in its appeal from the Federal Court of Appeal's decision upholding a Canadian company's right to register Glen Breton for single malt whisky - though notably not "Scotch Whisky". The original opposition and subsequent litigation were brought by the Scotch Whisky Association based upon the alleged rights of several of their members in "Glen" allegedly arising under the rarely used provisions of s. 10 of the Trade-marks Act, which provides, as I noted and commented before:

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

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

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

Now, for those whose interests run more to suds than single malt whisky - from wherever it may hail - consider that Labatt is suing Brick Brewing over the Red Baron label on the left, which Labatt alleges is confusing with it label on the right. Interestingly, Brick has a registration in a very similar - though not identical - label to the one on the left that predates Labatt's registration on April 29, 2009 in the label on the right by about 18 years. Yet more interesting is that Labatt is suing for copyright infringement. Even more interesting is that Labatt is seeking interim and interlocutory injunctive relief - which is almost never granted in the Federal Court these days. I'd say that Labatt has an uphill battle here.

HK

Copyright War Presentation Live Online Tuesday June 9 2009

I will be participating on Tuesday June 9 at 3:15 EST in a day long session of online interactive presentations on Copyright Wars hosted by an exciting new enterprise called Brighttalk.com.

I would encourage you check out the other presentations and tune in free - you can see them listed here.

I'll be dealing with ACTA, WIPO and Canada. You'll be able to send in questions in real time...this is interactive.

Hope to see you...

HK

British "compromise" v. French "Three Strikes"

or

The British Government - or what's left of it and if it survives - is considering a requirement that ISPs impose presumably significant bandwidth speed limits on alleged repeat infringers. What will be infringing and how this will work is unknown. Here's the BBC report.

I'm reluctant to disagree with the IP-Kat because its such a good blog and Tufty looks so judicious but I don't consider this a reasonable "compromise", presumably between the options of status quo and the French three strikes regime. I note that the IP-Kat qualified its endorsement in a potentially significant way - i.e. " If the technical solution works, it could be a nice compromise." (emphasis added).

This approach makes about as much sense as imposing a severe speed governor on the family car because one the household teenagers gets a speeding ticket - or even three speeding tickets. Or three of the household teenagers or their friends each get a speeding ticket. In this case, its even worse because the record industry will be presumably be the traffic cop, the prosecutor, and the judge. And they will use a very invasive and unreliable form of photo radar.

Severely crippled internet access is a severe penalty - especially when it could be imposed on an entire family - and imposed by mistake.

HK

Canada’s IP Writing Challenge - Update

MEA CULPA - earlier I today I said that there was a very short deadline until July 1, 2009 for this competition. I thought it was announced only today because I received a blast email from IPIC today. While the email and links seemed new, the subject of the email did indicate that it was a "reminder." My fault.

In fact, it was apparently announced April 6, 2009 here. Which still didn't leave a lot of time for the July 1, 2009 deadline , considering the end of term, exams, etc. But much more than the three weeks I earlier wrongly indicated.

So - consider this blog today as a "reminder" too.

Here's the basis scheme:

One winner will be announced from each of three
separate author categories:

1. Law student category (LL.B, J.D., BCL, and LL.L students)

2. Graduate student category (LL.M, S.J.D. and PhD students)

3. Professionals who have been practising 7 years or less
(patent agents, trade-mark agents, lawyers and other individuals who work in IP)

Each winner will be eligible for:

1. A prize of $1000 (CAD)

2. Be considered for publication in the Canadian Intellectual Property Review;
and/or Osgoode Hall Review of Law and Policy (OHRLP)

3. His/her work to be published on the IP Osgoode website

Here's the full information about the IP Writing Challenge.

The idea of this is a good one. There have been IP writing competitions in the past, and hopefully lessons have learned to ensure that there will be complete fairness and balance in the adjudication process, which has frankly not always been the case. There is a mechanism in place here to ensure “blind” judging in terms of the identity of the contestants. However, it will be interesting to see whether a submission that may be otherwise worthy but is considered too “copyleft”, for example, can survive whatever process and panel may be in place.

There is no specific mention about who the judges will be.The Rules state that:

All entries will be reviewed by a panel of judges selected by the Challenge Sponsors. The Challenge Sponsors reserve the right to not declare a winner in any or all of the challenge categories at their sole discretion.
(Emphasis added)

Hopefully, the panel of judges themselves will reflect true balance and will be looking not only for work of high quality but work that truly reflects the concept of “Challenge”.

Let's hope that lots of students and young lawyers found out about this in time and that we get some really good papers out of it.

HK

Salinger Sues for Sequel + Sibelius

J. D. Salinger, now 90 years old, sues - again. The remarkably reclusive, litigious and non-prolific (as far we know from publications) writer has sued over the expected publication in the USA of an "unauthorized sequel" called 60 Years Later: Coming Through the Rye, written by someone who the WSJ calls "a purported American living in Sweden named John David California." There's a brief discussion of the background here on the WSJ Blog, along with a good discussion and interview with a NYC copyright lawyer about sequels, parodies, and the possibility of copyright in a character.

Here's the complaint.

Salinger and Jean Sibelius are examples of creators who enjoyed great success at a relatively early age and became unable or unwilling to follow up to any extent to satisfy the public's appetite for their creativity. That's no reason to shorten the term of copyright - but these are important and prominent examples of why longer terms and stronger rights do not necessarily provide an incentive to create - and in the case of some individuals with substantial incomes from early success may paradoxically provide precisely the exact opposite by, in effect, enabling very early and comfortable retirement.

Sibelius in 1889

BTW, the works of Sibelius (1865-1957) will be protected in the EU until the end of 2027. In the USA, some of his work may be protected that long if properly renewed, although anything published before 1923 in the USA would not be. He wrote no major works after his Symphony No. 7 in C major for orchestra, Op. 105 (1924). Not that it's relevant, but his work was stylistically anchored to the 19th century and essentially immune to 20th century influence. His work entered the public domain in Canada on January 1, 2008, along with others as chronicled yearly by Maestro McLean of the Public Domain.

HK

Certainly Not a Certain Cert Petition

Speaking of the US Supreme Court, Charlie Nesson - the Harvard professor who is leading the ultra-controversial defense of Joel Tenenbaum - has sought certiorari (i..e. "leave to appeal" in Canadian) from the US Supreme Court on the First Circuit's rebuff of his attempt to have the proceedings webcast.

Oh yes, and a stay in the meantime. Which if granted could be a long time. The trial is currently set for July 20, 2009.

Prof. Nesson concludes his cert petition by arguing:

Internet now enables the members of the public
to come freely into court to attend and hear and witness
and learn for themselves what is going on. Total
prohibition of public access by all technological means
other than stenographic transcript is unnecessary,
unwise, unconstitutional, and radically out of step
with the current needs of our citizenry and our nation.

Now, I am not an American lawyer, much less an expert in US procedure, but I would be astounded if:

• cert is granted on an arguably purely procedural, albeit interesting, matter - especially considering the less than satisfactory briefings by both sides in the first instance motion
• in any event, the District Court agrees to stay this case for what could be a very long time.
  

Documents available here and hat tip as usual to Ray Beckerman.

HK

PS: June 2, 2009. No surprise. District Court Judge Gertner denied the motion for a stay. HT Ray Beckerman.

US Supreme Court to Hear Bilksi Business Method Patent Case

Not surprisingly, the US Supreme Court will hear an appeal in the Bilksi case

Here are the background documents.

This case involved a patent for a method of hedging in commodities trading developed by Bernard Bilski and Rand Warsaw. Here's a quick take from the WSJ.

For the more determined, go to Patently-O.

HK

Balanced Copyright Teaching Resource - for the USA

v.v.

The amazing EFF has come out with a balanced and informative teaching resource about copyright, with materials for teachers and students.

Unfortunately, we don't have such a thing in Canada. We did have Captain Copyright, who was fortunately euthanized by his creator, Access Copyright, before he could do any damage. He is gone but not forgotten.

We still have Copyright Matters! in Canada by Wanda Noel and Gerald Breau, published by CMEC, which is aimed at teachers and which, as I have noted before, is overly cautious and was obsolete at the time of publication of the second edition in 2005 - because it does not mention or appear to even take into account the landmark 2004 decision of the Supreme Court of Canada in CCH v. LSUC that opens the door to fair dealing for purposes of research or private study. It will be recalled that CMEC attempted to tout Noel and Breau's work as as being an "accurate and reliable" resource for use by teachers and students:

We disagree as well with Access Copyright’s assertion, also in the said August 9, 2006 letter, that there are no tools available to educators to help them teach their students about copyright. There are a number of accurate and reliable resources on copyright for use by teachers and students, such as the publication Copyright Matters!, which is now in its second edition.

We could use a balanced teaching program, not only for Canadian students but for the educational and library community, which largely continues to be afraid of its own shadow in this country - though there is some hope of potential empowerment and better leadership. In the meantime, the best source of information for teachers and librarians that I know of is book by Laura Murray and Sam Trosow, which I've reviewed here.

However, "balance" in the copyright context is becoming increasingly difficult if not impossible to achieve, as we witness certain content owner lobbyists going to more and more extraordinary lengths (for example, as just reported by Michael Geist) to control and manipulate public discussion and the public interest itself.

HK

Charlie Angus' New Net Neutrality Bill

Charlie Angus has a new net neutrality bill, private members Bill C-398.

The main differences from his previous bill on the same subject are the addition of the word "extraordinary" and the change of terminology from "network operator" (which is defined) to "telecommunications service providers", which isn't defined.

Frankly, it suffers from the same problem as before - which is that it puts the fox in charge of the chicken coop - allowing Bell, Rogers and/or whichever other likely duopolistic ISP ultimately controls your bandwidth to"manage", i.e. "throttle", in order, inter alia to:

• "relieve extraordinary congestion"
• "handle breaches of the terms of service"

Do we really want the likes of Bell and Rogers to determine what is "extraordinary congestion" - or to unilaterally impose, change and adjudicate breaches of self serving terms of service? Should the fox in the chicken coop be allowed to decide when he is suffering from "extraordinary" hunger?

As well, there is no explicit consumer remedy provided - which may be something of a Freudian slip, since it's unlikely that there would ever be a violation found according to the terms of the bill.

Charlie Angus has done great work on the copyright file and other issues, but I'm afraid that this bill won't help and would probably do far more harm than good to consumers if it somehow gets enacted.

HK

Good News From Geneva

As I said, things may have been more nuanced than appeared.

No details yet but a little tweet from Jamie says that:

WIPO sccr18. Text is now out. The proposal for a treaty "will be discussed at the nineteenth session of the SCCR."

So - the proposal will move forward and isn't dead.

Sounds like progress to me.

HK

PS - William New of IP Watch reports today - May 30, 2009 that:

The committee negotiated intensively on the chair’s text of the meeting conclusions, going through three drafts (IPW, WIPO, 29 May 2009) before reaching final agreement.

The committee’s late night outcome put the visually impaired treaty proposal – along with any other proposals or contributions on limitations and exceptions - on the agenda for discussion at the next SCCR, the date for which is not set. It also keeps on track a secretariat-led initiative to bring stakeholders on the visually impaired question together through a “platform”.

The final SCCR meeting conclusions text is available here [pdf].

BoingBoing Call to Action re WIPO Treaty for the Blind

Cory Doctorow - Canadian expat author and BoingBoing founder extraordinaire says:

I don't often ask readers to do things like this, but please, forward this post to people you know in the US, Canada and the EU, and ask them to reblog, tweet, and spread the word, especially to government officials and activists who work on disabled rights. We know that WIPO negotiations can be overwhelmed by citizen activists -- that's how we killed the Broadcast Treaty negotiation a few years back -- and with your help, we can make history, and create a world where copyright law protects the public interest.

Here's his posting, provocatively entitlted "USA, Canada and the EU attempt to kill treaty to protect blind people's access to written material".

I don't know yet what Canada has actually said - it may be more nuanced than what is being reported. The issue appears to be whether there will be movement directly towards negotiations for a treaty or will there be endless discussions with no treaty in direct contemplation. Nothing focuses the mind like the prospect of a diplomatic conference - even if a long way off. That, of course, is something that only the General Assembly can decide. Neither the SCCR nor the Secretariat can make that call - but they can be very influential if they so wish. Admittedly, the tabling by Brazil et al of a draft treaty proposal from the World Blind Union at the last moment this week was unlikely to create an immediate consensus.

The WIPO Secretariat's work with "Stakeholders" on rights for the visually impaired can be reviewed in this detailed document.

HK

Obama Admin Seeks Blocking WIPO Treaty for Blind

Jamie Love is reporting from WIPO that:

This evening the United States government, in combination with other high income countries in "Group B" is seeking to block an agreement to discuss a treaty for persons who are blind or have other reading disabilities.

Disappointing but not surprising. Not exactly "change."

We'll have to wait to see where Canada stands on this.

PS:

I've just discovered a tweet from Manon Ress from a few hours ago that says:

Canada is opposing the treaty for the reading disabled.

I hope she's wrong, but I can't recall that she has ever been wrong before on these kind of things. Maybe there's more to this than meets the eye. Let's hope.

HK

PS - May 29, 2009 7:45 AM - Jamie Love tweets that "WIPO #sccr18: Group B acting badly on treaty: EU plus Australia,Canada,Japan,New Zealand,Norway,Switzerland,the Holly See,United States"

PS: Cory Doctorow @ BoingBoing says "Update 3: Canada is upset with me. That's fine, I'm upset with Canada."

PS: This is going to be the first seriously Twittered SCCR. For those with accounts, check out "#sccr18"

Conference Board Volte Face

In a stunning and positive development, the Conference Board of Canada has “recalled” three reports: Intellectual Property Rights in the Digital Economy; National Innovation Performance and Intellectual Property Rights: A Comparative Analysis; and Intellectual Property Rights—Creating Value and Stimulating Investment.

It says today on the front page of its website:

An internal review has determined that these reports did not follow the high quality research standards of The Conference Board of Canada.

This is in stark contrast to the reported statements only yesterday of the Conference Board's Vice President Gilles Rheaume, who recites the now recalled report's main conclusion:

"Basically what is happening is that we are a major laggard when it comes to protecting intellectual property rights on the Internet. That is a big issue for us," said Gilles Rheaume, vice-president, public policy at the Conference Board. "We are the illegal file swapping country of the world - the leading country, when you look at Canada compared to other OECD countries.

"It is certainly an issue when we deal with Americans; it is something that is a sore point for them."

One particular point should be made right away. While I am sure that there will be a lot of fall out and follow up from this unfortunate episode, I do hope that the there are no unfair repercussions for whoever at the Conference Board had the good professional sense to retain Professor Jeremy de Beer in the first place. That was a good call. That his good work was subsequently reportedly ignored was not a good call.

Both Professors Geist and de Beer should be commended not only for their substantive work on these issues but for bravely speaking truth to power. We need more of this from other Canadian academics, who should also learn from Michael and Jeremy's outstanding contributions here.

HK

Broadcasters' Rights Redux - Decade Long Discussion Continues

Gurry/Liedes/Musungu/von Finckenstein

The indispensable IP-Watch reports (subscription required) in on the first day of the current SCCR meeting in Geneva that:

WIPO Director General Francis Gurry stressed at the outset of the 25 May information session that it was intended to be informational only and not a negotiation on a former proposed treaty strengthening IP rights for broadcasters that collapsed in the negotiation process in 2007 (IPW, WIPO, 22 June 2007)

Mr. Gurry is apparently seeking to lower expectations that there will be a WIPO Broadcasters' Rights Treaty. The current and long standing Chair of the SCCR, Jukka Liedes, has made is clear for a decade that he is personally committed to such an outcome and has gone to great lengths to make it happen. Despite his failure to deliver a treaty, and his clear preference on the issue, he is still the chair, perhaps because nobody else has seriously stepped forward to change the guard.

It may be noted in Canada that broadcasters are now currently trying to make a case to the CRTC that they should be paid a "fee for carriage" for "free" over the air basic channels. This has interesting copyright analogies and implications. This is clearly causing much consternation at the CRTC, resulting in its normally unflappable Chairman, Konrad von Finckenstein, now doing back flips. These issues get very touchy when so much money is involved. I wrote about this two years ago here.

At any rate, the initial day of expert presentations apparently included a lot of push for such a treaty and a presentation on the public interest perspective and a call for balance from Sisule Musungu, who is someone to watch. Presentations from the event are available here: Alberto, McFall, Mohan, Mohotty, Musungu, and Vermaele [ppt].

HK

Rupert's Revenge?

World Economic Forum Davos 2007

Google News has been down this afternoon for a while - can't ever remember that before.

As I have pointed out on May 17, 2009, one of Rupert Murdoch's honcho's and others have been going on lately about Google News and other news aggregators as “parasites or tech tapeworms in the intestines of the Internet”.

Could this be Rupert's Revenge ;-)
???

HK

PS - back in business when I just checked at 5:15 PM - thanks Rupert, or whoever...

Conference Board of Canada Controversy & American Based Copyright Lobbying - the Substantive Issues

Those who wish to pay $1,595 to attend a Conference Board of Canada conference this Friday May 29, 2009 that is reportedly being funded in the amount of $15,000 by Ontario taxpayers, according to ITBusiness, at which a controversial Conference Board of Canada report will be presented can find out more information about the Conference here. Prof. Geist has described this as a "deceptive, plagiarized rerport" and there's a front page article about all this in today's Ottawa Citizen.

While there are some good speakers on the list of this Conference Board Conference, the program and speaker list are seriously imbalanced in my view. It is regrettable that prestigious institutions such as the Public Policy Forum last year and the Conference Board of Canada this year allow themselves to be used in this way by lobbyists.

Those wishing to read the 2008 American IIPA lobbyist's report from which the Conference Board report has allegedly taken portions of its content can read it for free here.

These reports on Canada are prepared with the considerable input of a well known Washington lawyer named Steve Metalitz.

As it happens, I debated this very report with Mr. Metalitz at the 2008 Fordham conference, where I presented a paper entitled WHY CANADIAN COPYRIGHT LAW IS ALREADY STRONGER AND BETTER THAN THAT OF THE USA - AND WHY THE USA SHOULD LOOK IN THE MIRROR RATHER THAN AT ITS “SPECIAL 301" WATCH LIST.

This paper shows 15 ways in which Canadian copyright law is already stronger and better than American copyright law. None of those points have been refuted. These include a number of provisions that generate substantial amounts of money that benefit - in some cases mostly and significantly benefit - American interests, and for which the USA has no equivalent counterpart provisions. Here's a simplified "baker's dozen" list of examples from my paper:

1. Payment by broadcasters for "ephemeral rights"
2. Payment for public performance by small business establishments
   
3. Neigbouring rights for sound recording producers and performers
4. Theatrical exhibition rights for composers and authors
   
5. Blank media levies
6. Far higher reprography payments per capita - particularly in educational sector
   
7. Moral rights
8. No compulsory mechanical license
9. About 36 copyright collectives (about six or seven times more than USA)
   
10. Largest copyright tribunal infrastructure of any country that I know of
    
11. No parody right
12. No time shifting exemption
13. Crown copyright, which results in private sector monetization.
    

So - in the current debate, which ironically involves allegations of plagiarism in the context of copyright lobbying - let us not lose sight of the basic underlying issues:

1. In many ways which involve a lot of money flowing out of Canada to US interests, our Canadian copyright laws are already stronger and better than American laws.
2. The USA remains the world's longest and most flagrant outstanding adjudicated international copyright scofflaw, as determined by the WTO now 9 years ago.

HK

Conference Board of Canada Copyright Material Controversy

Prof. Michael Geist has raised in a posting this morning some allegations concerning, inter alia, plagiarism with respect to a report concerning Canadian IP law entitled “Intellectual Property Rights in the Digital Economy” published by the prestigious Conference Board of Canada. I take no position on the substance of these allegations, other than to note the obvious fact that they will be of interest to those concerned with IP and trade policy in Canada and elsewhere. This has been picked up by others, including the very widely read BoingBoing. This issue may well find its way into the main stream media.

The Conference Board, for its part, has published a lengthy defence of its report in a reply to Prof. Geist here entitled "Conference Board defends IPR report". The opening words of the Conference Board response are "In a blog posting today, Michael Geist charged the Conference Board with publishing a deceptive, plagiarized report."

Michael has followed up with a reply to the Conference Board's reponse.

Those who wish to pay $1,595 to attend a Conference Board of Canada conference this Friday, May 29, 2009 at which the report in question will be presented can find out more information about the Conference here.

HK

PS - This has hit the main stream media. See Sarah Schmidt's Canwest story here, which leads off as follows:

OTTAWA — The fight between consumers and the entertainment industry over reforms to Canada's copyright law escalated Monday when one of the country's leading experts on the issue accused the Conference Board of Canada of plagiarizing from a U.S. lobby group's documents to wrongly paint Canadians as the file-swapping capital of the world.

L’Oréal and parallel imports

Anyone who seriously does not think that attempts will not be made to use ACTA to get at parallel imports should look at the recent UK decision involving L'Oreal and eBay, which is almost 500 paragraphs in length and in the end refers several questions to the ECJ. The case concerns both counterfeits and parallel imports. While the judgment confirms that "a trade mark owner cannot request border control measures in respect of parallel imports" in the EU, it does show that major trade-mark owners regard both parallel imports and counterfeits as illegal and will what they can to stop both. It would be natural for the EU to "policy launder" though ACTA a change in its own law. Policy laundering is arranging for policy that is too controversial to legislate domestically being adopted in a treaty or agreement that "must" be implemented domestically.

Here's the decision from Justice Arnold of the UK High Court and some preliminary commentary from my friends at the IP Kat and IPWars.

HK

WIPO Copyright Meeting - May 2009

Following the recent Fordham Conference, I posted this comment on April 25, 2008 on the question of whether there could be a WIPO treaty for rights of the blind in the works:

• 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.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting in Geneva next week. Here are the documents. Hopefully, we will see if WIPO can make any progress on this issue and whether Mr. Keplinger's comment was indeed reflective of the Secretariat's views.

For many reasons, WIPO has been unable to achieve any notable successes in international substantive law norm setting since the 1996 Internet treaties. Even these treaties, which are now almost thirteen years old, have yet to be ratified by major developed countries apart from the USA, Japan, Switzerland and Australia - the latter under intense American pressure and the profoundly American-deferential leadership of former Prime Minister John Howard. (The ratification by Belgium is regarded as something of an anomalous accident, since Belgium is part of the EU and the EU has not yet ratified).

The troubles of WIPO under its former DG, Kamil Idris, certainly didn't help. The result has been a wave of bilateral and plurilateral initiatives that have ignored WIPO and even the WTO. It will be recalled that the TRIPs agreement in the 1994 WTO Uruguay Round treaty was arguably a rebuke to WIPO, which under the late Arpad Bogsch had taken a rather purist approach to IP that was largely insulated from such worldly concerns as economics, trade policy and the needs of developing countries.

The potential apotheosis of plurilateralism may be the current ACTA initiative, which is a significant threat to a sustainable system of international norm setting in IP law.

WIPO needs a new and positive milestone and the world needs a newly renewed WIPO. The pieces and the players are in place, particularly Francis Gurry, the new DG at WIPO who has fully earned the significant respect and confidence he enjoys. If ever there was an issue around which well-intentioned countries could rally, a treaty for the rights of the blind could be that issue.

Next week, we may see a draft treaty or a proposal tabled by Brazil, as the Irish Times reports. Also, look to leadership from Jamie Love and his very worthy KEI NGO. Here's one of his blogs.

Finally, we await with interest where Canada will stand on all of this.

HK

PS: William New of IP Watch reports that:

A group of Latin American and Caribbean countries have declared their intention to support discussion of a proposal to negotiate a World Intellectual Property Organization treaty ensuring an exception to copyright for visually impaired readers who lack access to protected reading materials. The proposal is expected to be brought to the floor of a key copyright committee meeting this week.

Mr. New also reports on other aspects of the forthcoming meeting, including this:

The committee will elect a chair for the meeting. In the case of the SCCR, unlike any other WIPO committee, the same person has been chair for as long as a decade: Jukka Liedes of Finland. He has generally shown sympathy for developed country – especially European – perspectives. It is unclear why developing countries do not push an alternative candidate for the chairmanship.

Right to Repair

Cars are increasingly computerized. Consumers are increasingly dependent upon even captive to their "authrorized"new car dealers for repair of these cars when the warranty expires because independent repair facilities do not have access to the information, tools, diagnostic codes, computer programs and other products and services necessary to service today's complex vehicles. IP and competition law are major issues here.

In Canada, there is a private member's bill intoduced by Mr. Masse as Bill C- 273, which is receiving much attention.

In the USA, there is a similar but more detailed bill, H.R. 2057 that is also getting some attention.

One of the notable differences between the two bills is that the American bill provides explicit remedies.

The EFF is suggesting that the concept apply accross the board to all consumer products and points out how the DMCA gets in the way of a the consumers' "right to repair".

All of this comes in interesting times for the major automobile companies.

HK

Levies Then and Now

$3.00 Each???

$2,800 each???

There's a story out that the capacity of a blank DVD could be boosted to 1.6 terabytes, which would make the "levy" sought by the CCPC back in 2002 of $2.27 seem fairly small on a capacity basis. However, that proposed levy on blank DVDs was shot down (yes - I was involved) and has not been resuscitated because the CPCC apparently (though I'm sure reluctantly) recognized that these products are not "ordinarily used" to copy music. That said, the $2.27 proposed levy then sought on blank DVDs is now about 10 times the retail price, if you buy them in any quantity and get a good deal. They are now cheaper by far in many cases than blank CDs (which have only about 15% of their capacity at best), because the latter have a $0.29 "levy" (commonly referred to as a "tax"), which is what is keeping the CPCC in business and supporting its overall more than 10% expense/revenue structure. The CPCC has still not published its 2008 financial figures, though we are well into 2009.

Speaking of 2002 proposals, the CPCC then proposed a levy "of $21 per gigabyte of of memory in each non-removable hard drive incorporated into each MP3 player or into each similar device with an internal hard drive that is intended for use primarily to record and play music." In other words, the current 120 gig iPod "Classic" that sells for under $300 would have had a levy of $2,520 if the CPCC had succeeded. Yes - we stopped that too, though the CPCC and Copyright Board had to be told twice by the Federal Court of Appeal that it wasn't on.

All of this shows that today's quickie proposed legislative solutions and oft inflated tariff proposals to deal with supposedly serious crises arising from copyright and new technology are potentially tomorrows' absurdities or even nightmares.

HK