Muffin Maven Muzzled

The Washington Post reports that a US Appeals Court has confirmed that "A food-industry executive armed with the secret to the "nooks and crannies" in Thomas' English muffins can't work for a rival amid a trade-secret lawsuit."

Thomas' English Muffins is owned by Bimbo Bakeries. The former Thomas/Bimbo exec wants to work for Hostess in Houston.

As the Third Circuit Court of Appeals noted:

Significantly, as Bimbo repeatedly has noted throughout these proceedings, Botticella was one of only seven people who possessed all of the knowledge necessary to replicate independently Bimbo’s popular line of Thomas’ English Muffins, including the secret behind the muffins’ unique “nooks and crannies” texture. Thomas’ English Muffins is the source of approximately half a billion dollars worth of Bimbo’s annual sales income.
(emphasis added)

I would imagine that the muffin maven is mighty miffed.

HK

PS - it seems that there isn't much that is "English" about Thomas' English Muffins other than that the baker who started making and selling them in New York in 1880 emigrated from England in 1874, according the the New York Times.

Indeed, according to the Boston Globe, "There may not be a single "English Muffin" in all of England".

That being said, I would imagine that "English Muffins" won't be pushed as geographic indication by the EU.

ACTA "intercessional" [sic?] meeting in Washington, August 16, 2010

It seems that there will be an "intercessional" [sic?] ACTA meeting in Washington, D.C. on August 16, 2010.

Either somebody (USTR?) can't spell or this is a great pun or Freudian slip.

"Intercession" usually has religious significance, i.e. see here and here, i.e. in the sense of mediating between two parties who can't agree, which seems to be the situation these days between the US and the EU over ACTA, which both parties are pursuing with religious-like fervour but also with fervent disagreement over just how excessive and aggressive the agreement should be.

Whether this will be an "intercessional" or "intersessional" meeting, apparently the meeting will be only between the USA and the EU, with the less important countries, in their view, such as Canada not invited.

Speaking of religion, I guess that "They also serve who only stand and wait..."

HK

Speaking of Statistics (and Copyright Blogs)

Not surprisingly, IPKat shows up yet again as the "first in show" copyright blog this week according to the Copyright Litigation Blog.

Congratulations to my dear friendly felines - Jeremy (the wise and wily tom cat), Annsley, Tufty and all the other Kats and Kittens...

No doubt their otherwise well deserved popularity this week was not diminished with this deceptively misdescriptive (though only barely) but still somewhat salacious blog about the "Naked Truth" of American trade marks litigation involving a cow boy, cow girl. and guitars.

Curiously, my little Canadian blog, lately rather neglected by the undersigned, apparently came in at number 11 around the world.

This is interesting, especially since neither this blog nor that blog were even mentioned.

There's an old adage about lies, damn lies and statistics - the latter of which is a hot topic these days in Canada that has even reached the New York Times. The Canadian long form census debate is ironically related to to copyright policy and the debate unfolding on Bill C-32. This is because of the air tight protection for DRM and TPM measures in Bill C-32 and the inadequate protection from their privacy invasive potential. See here on this blog a few days ago.

In order to achieve more reliability on copyright blog readership statistics, we really should consider including one or more questions on the mandatory Canadian census - if it survives - about blog reading habits so that Canadians can know the real truth about who reads what and why...

To certain readers who occasionally take this blog, including its title, too literally - part of the foregoing is tongue in cheek. But only part. If you can't guess which part, you need help!

HK

Bratz Beats Barbie

(The Telegraph)

Here's a remarkably witty and wise decision from Chief Judge Alex Kozinski of the US 9th Circuit - famed for his often colourful IP decisions.

He overturns Mattel's early victories in this epic case on many grounds, not least important of which is the classic idea v. expression issue.

His bottom line and his last line indicate the frequent reluctance of the experienced IP judiciary to let copyright law be used to stifle otherwise legitimate competition:

America thrives on competition; Barbie, the all-American

girl, will too.

HK

The Privacy Policy Paradox - Census and Copyright Contrasted

(Slyck)

There is a certain paradoxical irony in the coincidence of the debate over abolishing the mandatory long form census form and Bill C-32 on copyright revision in Canada.

The current census proposal reflects a commendable desire, in principle, to cut back on the “nanny state” notion of society, with a “less is more” approach to the role of Government. Interestingly, many groups are resisting this initiative in this instance, calling for the keeping of the long form because the minor inconvenience and the minimal privacy implications are, in their view, worth the benefit of the important information that will be collected.

Moreover, according to Jennifer Stoddart, the Federal Privacy Commissioner, only three complaints have been filed in the last decade about the long form census.

Likewise, most Canadians favour strict regulation of banks and the environment, because the costs and interference with “property” are well worth the benefits. Even Alan Greenspan now believes in regulation.

Segue to Bill C-32, which ironically is clearly an example of major Government intervention and regulation. The air tight “digital locks” provisions that will sooner rather than later override all users’ rights have received enormous criticism and even backlash. Not only will these provisions enable the micro-management, if not absolute control, over what consumers can do with their expensive Blue Ray discs, software and other bought-and-paid-for property consisting of content media and hardware (from smart phones to cameras to computers) in terms of where, when and how they can be used. These provisions will enable the elimination of users’ fair dealing rights in DRMed and TPMed material, if the content owner so decrees, and even access to material in the public domain.

Moreover, there is an enormous potential for invasion of privacy - since DRM and TPM can be programmed to “phone home” or to report to third parties on users’ reading, research, listening, viewing, photo, video, webcam, browsing and who knows what other activities to whoever is interested and willing to pay for such information. The proposed privacy protection measures in Bill C-32 (s. 41.14) are simply not adequate to safeguard the legitimate privacy concerns of Canadians.

Bill C-32 would not only enable third party corporations to collect such personal information. It would make it illegal to circumvent such technology if the user is notified in presumably small print in a click through contract of adhesions that this is being done and a means is provided - which may be far from easy or practical - to opt out of the data collection. Just think about how tricky is it is to protect your privacy on Facebook - and nobody is forcing anyone to have a page on Facebook.

Canadians should be able to assume that their default status is that their privacy is being strongly protected. They should not have to take active, complex and quite likely ineffective steps to constantly ensure that this is the case in ordinary and often inevitably necessary daily and activity.

If the Government believes that questions to Canadians about “the number of bedrooms in their homes and what time they leave for work” are too privacy invasive, and are not the business of disinterested professional civil service statisticians, why would the Government enable collection of the most intimate personal information for commercial and who knows what other purposes about what consumers are doing with their computers, smart phones, TV sets, and other electronic devices and content and what information these consumers are obtaining?

The digital lock measures in Bill C-32 are an extreme example of government intervention not only in the market place and the R&D labs and educational institutions of this country but in the innermost realms of Canadian privacy. Apart from certain paid lobbyists and trade associations largely serving the American entertainment industry, and organizations controlled or created by them, there is little if any support for these digital lock measures.

A Canadian compromise style solution would be to allow for protection of anticircumvention measures consistent with but not beyond what is required by the 1996 WIPO treaties - and to also allow protection from such measures when they interfere with users’ fair dealing and any other rights provided by copyright, privacy and generally applicable law. There is nothing in international law to prevent such an approach.

The digital locks provisions of Bill C-32 are clearly the most controversial issue in this reform package - which is otherwise potentially promising. Without a compromise, Bill C-32 will almost certainly be doomed and all of the many supporters of constructive copyright reform will definitely be disappointed.

HK

Copyright Board Issues Commercial Radio Decision

The Copyright Board of Canada today issued its long awaited Commercial Radio tariff and reasons. It is a 116 page bilingual decision that covers six different rights payable to six different collectives.

As the Board states:

A Canadian radio station that broadcasts recorded music off a server reproduces and communicates musical works, performers’ performances and sound recordings. Four copyrights and two remuneration rights must be accounted for. This is the first time that the Board has been asked to set tariffs for all those rights at the same time.

It is notable that this entails more types of rights and more collectives than American commercial radio stations have to deal with. Whether this additional complexity and proliferation of collectives is a good thing or bad thing probably depends on whether one is a broadcaster or someone in the music business. Even in the music business, there is internecine concern about the old “pie” theory that holds that a pie can only be a certain size - and the more people that want a piece of it, the smaller each piece can be. The one sector that clearly benefits from all of this is the copyright bar.

Today’s decision probably validates the pie theory.

In the Board’s words, this is a summary of the result:

How much will the new rates generate in royalty payments, compared to the old rates?

The Board estimates that commercial radio stations will pay a total of $85 million in royalties. This is based on total station revenues of slightly over $1.5 billion in 2009. Using the previously certified rates, radio stations would have paid about $72 million. The new rates thus increase the amount of royalties by $13 million. Of this amount, $10.2 million represent royalties resulting from the introduction of two new rates, for AVLA/SOPROQ and ArtistI.

How much will each collective society receive?

Of the total amount of royalties of $85 million paid by radio stations, the Board estimates that $51 million will go to SOCAN, $13 million to Re:Sound, $11 million to CSI, $10 million to AVLA/SOPROQ and $200,000 to ArtistI.

The overall increase is $13 million per year, which is significant because it is an 18% increase over the previous overall tariff cost to commercial radio stations. And there are still some loose ends and unknown costs, notably regarding internet simulcasting.

However, the total amount is far less than the $200 million predicted by Glenn O’Farrell, former President of the former Canadian Association of Broadcasters. Here’s an article predicting this by Glenn and pictures of former Ministers Jim Prentice and Josée Verner from the Hill Times of February 11, 2008, which seems like aeons ago.

It should also be noted that if Bill C-32 passes as is, the right to collect from commercial radio stations for “reproduction” activities - i.e. copying and storing music on servers so that it can be archived, stored and broadcast efficiently - will be gone, provided that broadcasters can live with the limited exception provided for such reproduction which would last a maximum of thirty days. If the broadcasters can work with this proposed regime, they could save annual payments of $11 million to CSI, $10 million to AVLA/SOPROQ and $200,000 to ArtistI.

Don’t be surprised if the broadcasters try to broaden and lengthen the proposed ephemeral exception.

This tariff is the result of the combination of several proposed tariffs filed in 2007 and 2008. The Board consolidated them all into one hearing, which took place in December of 2008 and January of 2009. If there is judicial review, the Federal Court of Appeal could could hear the matter in a year or less (i.e. before next summer) and typically would render a decision in a few weeks or months at the most after the hearing.

HK

DRM, TPM, WIPO, GDP, & G20

Speaking of some well known acronyms. HT to MG re Brazil's proposed measure to protect users and consumers FROM excessive anti circumvention measures by punishing those who would hinder or prevent otherwise lawful activity, access to the public domain, etc.

Here's a table from 2008 indicating GDP performance of G20 countries. Look at Brazil and Canada - in a virtual tie in GDP, but Brazil having the higher growth rate.

Do we want to shoot ourselves in the foot with copyright policies that will hinder rather than encourage innovation and sustainable economic growth?

Or do we want to preserve obsolete and failed business models for the supposed benefit - but more likely the ultimate harm - of the American entertainment industry.

Never forget Jack Valenti in 1982 telling Congress on behalf of the motion picture industry that"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

It was a good thing nobody listened to him then. Why would we do so now?

HK

On the Right to Read for Blind Persons and others with print disabilities

As reported by KEI Online, below is Ambassador Gero's statement at the recent WIPO SCCR/20 meeting (June 21-24, 2010 in Geneva) on the subject of a possible treaty dealing with rights for the blind. It is rather unusual for an Ambassador to attend a working level meeting such as this. John Gero was very active on IP matters at the very early stages of the FTA, NAFTA and the WTO agreements beginning in the mid to latter part of the 1980's. It is unclear why he chose to personally deliver Canada's main intervention - but, at the very least, it would suggest that Canada regards this as a very important issue.

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

Intervention — International instrument on access to protected materials by persons with print disabilities

Thank you Mr. Chairman

Canada is pleased once again to address this Committee on the important issue of access to work by the print disabled. We would like to thank Brazil, Ecuador, Paraguay and Mexico – the co-sponsors of the Visually Impaired Persons (VIP) Treaty Proposal – for their contribution to this discussion. We would also like to thank the U.S., the European Union, and the Africa Group for their respective proposals that address access to print materials by persons with print disabilities, which have been recently submitted to this Committee.

Canada would like to take the opportunity to reconfirm our interest in finding expeditious and pragmatic solutions for access to works by the print disabled. Today, Canada would like to offer our perspective on the general principles that should apply to a possible instrument. We would also like to highlight how some potential reforms to Canada’s domestic regime could positively contribute to the work of this Committee.

In terms of some considerations that could serve the work towards an international instrument, Canada would like to note the following:

First, the element of flexibility is vitally important. It is Canada’s position that any solution to the problems of access by print disabled persons to copyright works should allow for a variety of means for domestic production of accessible material. Members States should have the choice of using exceptions, compulsory licensing or conditional exceptions. Providing Member States with flexibility in this regard is important as some Member States have laws that provide different types of limitations and exceptions for different types of accessible materials. Although there are some Member States here that suggest a mandatory exception is necessary, it is Canada’s view that enabling Member States to implement provisions which reflect local realities by having more than one type of limitation or exception, including for different types of accessible material, would not prevent but actually enhance the international exchange of such materials.

In this regard, a mandatory exception in all countries to allow for the import and export of special format materials does not seem necessary. It is important to recognize and account for the reality that not all Member States have identical laws. Moreover, it is also important to provide Member States with the ability to account for cultural differences and not to restrict their capacity to innovate in their legal framework.

With respect to the various proposals that have been tabled, we note that the Consensus Instrument proposed by the U.S. and the Joint Recommendation proposed by the EU allow for flexibility in laws. Canada sees this as an advantage for it recognizes effective regimes which are already in place, including those which may require payment in certain circumstances.

Another important consideration is that of the trusted intermediary. In order for the discussion to progress, it will be key to address the role and obligations of trusted intermediaries. Canada takes note that some proposals introduce the concept of trusted intermediaries. Canada would welcome a discussion on the range of circumstances in which these organizations could play a role.

Aside from Canada’s preference for flexibility, we view the ability of individuals with print disabilities to import special format materials for their own use without necessarily going through a domestic organization, such as a trusted intermediary, to be an important feature of the copyright modernization bill recently introduced in Canadian parliament that we will now turn to briefly describe.

As stated at the beginning of our intervention, Canada would also like to highlight how some potential reforms to Canada’s domestic regime could positively contribute to the work of this Committee. Earlier this month, a copyright modernization bill was introduced in the Canadian Parliament. This bill implements the rights and protections under the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, it creates new exceptions for educators, librarians, consumers and innovators and it strengthens the tools for rights owners to fight piracy. More to the point of our current discussion, the bill also explicitly addresses the issue of the import and export of special format materials for the print disabled.

With respect to importation, Canadian law – and this principle has existed in our law for many years – provides that it is only necessary to look at the limitation or exception in Canadian law to determine whether material can be imported. The copyright modernization bill clarifies for print disabled persons the existing rule that copyright materials can be imported into Canada if they could have been made in Canada under one of the exceptions in our law. This includes the importation of special format material for the perceptually disabled including importation by individuals with print-related disabilities.

We think that this example from Canadian law demonstrates that the importation of special format materials can be achieved in a variety of ways.

We would also like to note that this principle on importation may already exist in the laws of a number of Member States.

With respect to exportation, the bill in front of the Canadian parliament also has specific measures related to the export of special format materials. It includes a number of provisions to ensure that there is an appropriate balance between the interests of the parties involved. First, exportation is limited to special format versions of works by Canadian authors or authors of the country of importation. Second, the bill allows for the possibility of a royalty collected for export material even though there is a complete exception for domestic production of special format materials. Third, export from Canada can only be done by organizations, not by individuals; and the importer recognized by the law can only be an organization and not an individual. And fourth, the bill allows for the possibility of requiring a contract between the Canadian exporting organization and the foreign importing organization. A contract of this type could stipulate, for example, that the copies could only be used by persons with print disabilities. In this sense, this provision is aligned with the concept of trusted intermediaries by ensuring that the distribution is limited to persons with print disabilities.

Of note, the bill allows the export of special format materials to foreign countries regardless of what the law is in the foreign country and regardless of whether the foreign country has a limitation or exception for the creation of special format materials.

Although the bill does not allow for the export of third country material, any international instrument should establish rules and principles under which third country material can be exported.

In conclusion, we hope that Canada’s perspective on general principles and the approaches set out in our new copyright modernization bill are helpful in advancing the dialogue on this issue.

In terms of next steps, Canada does not see a consensus instrument or a joint recommendation as excluding the possibility of a treaty. Indeed, it can be considered as an important building block.

Thank you Mr. Chairman.

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

BTW, KEI is very active on this issue and has lots of useful resources and references. Start here.

This issue is not only important for those who are blind or have other reading disabilities. It is increasingly being seen as a a crucial test of whether WIPO can broker a meaningful multilateral agreement, or whether we will continue to see more erosion of multilateralism and the United Nations spirit. This is indeed what we are seeing in the controversial ACTA negotiations and countless bilateral and plurilateral agreements, such as the proposed CETA (Canada Europe Trade Agreement).

Those who are blind or who have print disabilities should at least have the right to read. Many of them have to struggle to do everyday things that most people take for granted. This right should not be controversial.

It would be very unfortunate if certain vested interests in the copyright world play politics in Geneva at the expense of blind and otherwise print disabled persons. The WIPO Secretariat will no doubt do its best to see a positive and concrete result - which most advocates for the blind would consider to be nothing less than a treaty. "Soft law" is probably not good enough any more on this issue.

But if major countries or blocs, spurred on by major copyright trade associations or acting for other reasons, frustrate efforts for this worthy cause, WIPO's ability to do what is right, just and necessary will be limited.

HK

PS - here is IP Watch's excellent report on how a "golden opportunity" was missed.

The “Balance” Brand in the Balance

It’s kind of interesting, though hardly surprising, that the so-called “Balanced Copyright for Canada” coalition has finally admitted that “the lead funding source is the Canadian Recording Industry Association” (i.e. CRIA).

A few years ago at the Fordham conference, a prominent international content industry lobbyist, in a funny Freudian slip, referred to CRIA as the “Canadian Recording Industry of America.”

I wonder if the so-called “Balanced Copyright for Canada” coalition will admit that it is, at the very least, ironic that its name is arguably confusingly similar to that of the Balanced Copyright Coalition (“BCC”) (which I started in 2007) which morphed into the Business Coalition for Balanced Copyright (“BCBC”).

The BCC and the BCBC indeed were based on a genuine attempt to achieve real balance - the notion that blue chip corporate giants in the communications, internet, broadcasting and retail sectors (e.g. Google, Yahoo, Rogers, Telus, the Canadian Association of Broadcasters and the Retail Council of Canada) inherently need to see copyright from the various standpoints of consumers, users, owners, and creators - and that their views are thus very much more “balanced” than the much smaller purely content industries which see things from one purely parochial side only - namely their owner based interests - which don’t necessarily and often emphatically do not reflect the interests of actual creators.

There is not much that is “balanced” about CRIA’s latest lobbying front. If it were truly grass roots, it wouldn’t even need funding. The basic cost of website is about the same or less as a case of beer. Starting a blog such this one or a Facebook site is free. However, the so-called “Balanced Copyright for Canada” coalition apparently needs the weight of corporate lobbying lucre behind it.

I would say that the word “balance” is now being bandied about badly.

HK

"Extremism in the defence of liberty is no vice..."

Barry Goldwater (1909-1998):

I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue!

Google Book Conference from U. of T. Now Viewable on Web

The recent May 28, 2010 conference on the Google Book Search/Settlement ("GBS") at U. of T. has has now been archived here.

It was extremely informative, provocative and balanced and was very capably organized by Prof. Ariel Katz.

All kinds of talk about the implications for Canada - including from yours truly?

Unfortunately, there was no speaker from Google.

We all await what Judge Chin will do in New York one of these days...

HK

Bill "C-32" Redux?

If the bill unexpectedly expected for today June 2, 2010 turns out to be numbered "Bill C-32", that could be a bad omen.

Bill C-32 was the last major update to Canada's Copyright Act. It became law in 1997 - the last "act"of the the then Liberal government before an arguably unnecessary election. Literally, the last thing done before they turned out the lights before that election....

That bill was a bad bill going in that was made a lot worse after it got through a very unsatisfactory committee process that was crammed through the House and Senate in only a year.

Are those who don't know history once more condemned to repeat it...????

HK

Another Access Copyright "Access" Oxymoron

As a proud member of Access Copyright, I've been trying to log on to to (i.e to "access") its appropriate web pages to verify whether or not folks can meet online Access's unilaterally imposed May 31 2010 deadline for its "Payback" scheme that will somehow presumably put more rationale in its otherwise very unsatisfactory distribution scheme. See the report of the former Dean of U. of T. Law School, Martin Friedland.

Good luck to anyone trying online to work their way through, i.e. to "access" Access's "Payback" process online today....!

As I just tweeted:

howardknopf

Access Copyright's "Payback" scheme? Online non functioning on deadline day of May 31,2010? Can't get there from here? http://bit.ly/bu0XFD
HK

PS - I follow the instructions and persistently get the following error message when I try enter my information via the the Writer tab of the "Books" section:

An error has occurred in this page. All information about this error has been logged and the support team has been notified of the error.
You may contact the support desk at affiliates@accesscopyright.ca.
We apologize for any inconvenience

PS - 11:42 AM Monday May 31, 2010: Access Copyright appears to have corrected the online problem - though I haven't tried to follow it all the way through. I think I'll stick with paper and Access has wisely posted the following notice granting an extension of the deadline for paper until June 15, 2010.

HK

The online claim process for Payback ^TM will be closing at 11:59 p.m. Eastern Standard Time on May 31. Please note our office closes on May 31 at 5 p.m. EST and you will not be able to contact Affiliate Services staff that evening.

If you have not done so already, please click here to submit your Payback ^TM claim to ensure you receive your full royalty payment.

If you do not make an online Payback ^TM claim by May 31, you can still make a claim by mail, fax or email until Tuesday, June 15. To receive a paper claim form, please email AffiliateServices ataffiliates@accesscopyright.ca

Pernicious Permissions Policies in Canada

Padraic Ryan, CC license

Library and Archives Canada (“LAC”), that esteemed national public institution and repository of Canadian knowledge, has some seriously misleading language in the license it requires for the deposit of all graduate theses and on its website. This reflects an apparently inadequate understanding of the Supreme Court of Canada’s landmark CCH v. LSUC ruling. This is nothing if not ironic, given that the LAC and the Supreme Court of Canada are next door neighbours in Ottawa.

LAC requires the author/depositor of a graduate thesis to agree to the following:

I represent and promise that my thesis is my original work, does not infringe any rights of others, and that I have the right to make the grant conferred by this non-exclusive license. [HK: So far, so good.] If third-party copyrighted material was included in my thesis, I have obtained written copyright permission from the copyright owners to do the acts mentioned in paragraph (a) above for the full term of copyright protection. [HK: Not good, to say the least]

The second bolded sentence, if read literally as many have not surprisingly done, suggest that any excerpt from any copyrighted work requires written permission from the copyright owner. This is simply wrong from both a legal and academic standpoint. The error is repeated and compounded at the part of the LAC site that provides information about copyright to students and universities here:

Please ensure that you haven't included copyrighted material from other sources unless you've received written permission from the copyright holder(s).

This may take quite some time especially if some of the copyrighted material is older, if the copyrighted source(s) you need to contact is out of the country and/or you need to contact multiple sources. We strongly recommend that you contact the copyrighted source(s) early in your thesis preparation.

This erroneous, or at the least badly drafted, language has caused a lot of confusion in the university community, as I have seen in several instances.

Clearly, it is a basic principle of copyright law that the quotation of a less than a “substantial part” of copyright work requires no permission. This is hardwired into s. 3(1), which is keystone arch of the Copyright Act, and explained in lots of case law. S. 3(1) states that

…“copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof … (emphasis added)

Many institutions understand that much, even if it’s far from clear on the LAC site. But they don’t necessarily go on to explain the next step as to why permission will rarely be required for quotations in graduate theses, namely the users’ right of “fair dealing".

Even when the quotation is a “substantial part”, it is still permissible to use it without permission, if it falls within the very big and “flexible” tent of “fair dealing” for purposes such as “research” or “criticism or review” – which will be the case in most if not all properly done graduate theses.

See s. 29 of the Copyright Act, and see the Supreme Court of Canada's decision in CCH v. LSUC. Unfortunately, many who should know better in the educational community and some of the lawyers who advise them have apparently still not assimilated this landmark decision and/or are in denial as to its implications.

The LAC language should have made it clear that permission is only required when the quotation is “substantial” and when it does not fall within “fair dealing”. That is the law. The LAC passage suggests that permission will indeed be routinely required - which will rarely be the case in the context of graduate theses.

It’s hard to imagine a thesis that wouldn’t include “third-party copyrighted material.” How else can the writer demonstrate that his or her work is in fact new and creative and adds something of value to the state of knowledge in a particular field? All competent research builds on previous research. Remember Isaac Newton, who said “If I have seen further it is by standing on the shoulder of giants.”

Most theses, especially in the humanities, are quite properly replete with quotes, which are invariably attributed, as required by norms of academic protocol and strict policies against plagiarism. Mostly, they will be so short that they don’t constitute a “substantial part” of the work they come from or they will fall within fair dealing for the purpose of “research” and/or "criticism or review" of the work of other scholars. Furthermore, the purpose of reading such theses will invariably be for “research”. They are usually not particularly entertaining.

Moreover, the problem of excessively long quotes that go beyond fair dealing is normally self-regulating because any competent thesis supervisor and committee, if applicable, wants to read the work of the student, and not someone else's work. There cannot and should not be any absolute or formulaic rules about how long is too long.

It is very disappointing that LAC would adopt such language in this important document and on its website. This license document confronts all successful Canadian graduate students who have written a thesis. I’m told that even some publishers who ought to know better have now accepted that such language actually represents the state of the law in Canada and are refusing to publish books based on a thesis unless all permissions for all quotations have been obtained. I can understand why even some publishers might rely on LAC, given its prestige and role. But, in this case, I'm sorry to say that LAC has got it wrong.

Badly drafted, ill-advised and/or ill-conceived language that gets included in important public documents has a way of creeping into the common vocabulary and acquiring virtually authoritative status. This has apparently already happened in this example of LAC, and is clearly quite harmful because of LAC’s prominent and official role.

In fact, I gather that LAC compounds the problem by devoting taxpayer resources to vetting theses for copyright violations before putting them online. This is also a problematic policy for many reasons which I won’t go into here because this post is already too long. One obvious question, however, is how much taxpayer money is being spent on such efforts, and how many graduates students have had their research work wrongfully interfered with by such a process.

This is even worse in some ways than the arbitrary, unfounded and incorrect 2% or 500 word requirement that was in force and still may be at Simon Fraser University and still is on the website at UBC and who knows where else. It is astonishing that leading Canadian institutions presumably dedicated to research can promulgate policies that are so antithetical to it and just plain wrong. I’m sure that they don’t intend this to be the result.

Not surprisingly, Access Copyright has done its bit to compound the confusion here with misleading and incomplete information that will discourage legitimate permissible quotation that doesn’t require permission.

I don’t know how Canadian students can write decent theses, much less expect to make them available online, publish them and compete on the world stage, if they believe that they have to get permission to quote material that doesn’t require permission to quote.

Here’s an actual example of how all of this muddled and wrong thinking has translated into a seriously incomplete, misleading and counterproductive statement on thesis requirements from no less illustrious an institution than York University:

No substantial amount of copyrighted material may be included in the thesis/dissertation. Under the Copyright Act, if more than a reasonable extract of another person’s work is included in the thesis/dissertation, written permission must be obtained from the copyright holder(s).

Who knows what “reasonable” means? Why not refer to “fair dealing”, quote s. 29 of the Copyright Act, and at least point to the SCC decision in CCH. v. LSUC?

I hope that LAC and the Canadian universities that have misunderstood or misstated the role of copyright law in the writing and publishing of theses take appropriate steps to correct the current misinformation situation.

"Respect for copyright" is not increased by mindless insistence on clearance and permission when none is necessary. In fact, the result is quite the contrary.

I will address this and other issues in a pre-conference talk at the CLA conference in Edmonton on June 2, 2010. Unfortunately, although Access Copyright had agreed to send a senior person to this event, it has since backed out and no replacement speaker from Access Copyright will be on the program.

HK

PS June 1, 2010: UBC now appears to have removed the "2% or 500 word" language - but still has this chilling and incorrect statement on the page heading up the "Avoiding Copyright Violations" section of its website:

When you submit the final copy of your thesis, you must sign a document confirming that you have permission to use any copyrighted material in your thesis. (emphasis added)

Even the University of Toronto appears oblivious to the "substantial part" threshold and the "fair dealing" exception. See this:

When is Copyright Permission Required?

Does your thesis contain someone else’s work (third party materials)? For example, text, figures, maps, images, questionnaires, photos, etc.

1. Does your thesis contain your own previously published materials (e.g. journal article)?
2. Does your thesis include material (e.g. a chapter, an article) that was co-written with another author(s)?

If you answered “yes” to any of these questions then you must obtain written permission to reproduce the material from the copyright owner (e.g. journal publisher and/or co-authors).

USTR "301" Report Due Today

The USTR is expected to release its annual "301" report today. I wouldn't be surprised to see Canada in the top three "piracy haven" countries on the priority watch list - along with Russia and China. At the Fordham conference earlier this month, Stan McCoy of USTR put Canada right up there in his rhetoric. Will Canada be #1 or #3?

Here are 21 reasons why Canada shouldn't even be on this list, and why the USA should look in the mirror.

HK

PS - the 2010 Report is out. Here's what it says about Canada:

Canada
Canada will remain on the Priority Watch List in 2010. The United States looks forward to the government of Canada’s implementation of its previous commitments, recently reaffirmed in 2010, to improve IPR protection, and is encouraged by the high level of cooperation between the Canadian and United States governments on IPR matters. However, Canada has not completed the legislative reforms in the copyright area that are necessary to deliver on its commitments. The United States urges Canada to enact legislation in the near term to update its copyright laws and address the challenge of Internet piracy. Canada should fully implement the WIPO Internet Treaties, which Canada signed in 1997. Canada’s weak enforcement of intellectual property rights is also of concern, and the United States continues to encourage Canada to improve its IPR enforcement system to provide for deterrent sentences and stronger enforcement powers. In particular, border enforcement continues to be weak. The United States encourages Canada to provide its border officials with the authority to seize suspected infringing materials without the need for a court order. The United States will continue to follow Canada’s progress toward implementing an adequate and effective IPR protection and enforcement regime, including its progress on actions to address Internet piracy and improve border enforcement.

US Supreme Court to Hear Costco v. Omega Parallel Import Case

The United States Supreme Court has granted certiorari (i.e. it will hear the appeal) in the case of 08-1423 COSTCO WHOLESALE CORPORATION V. OMEGA, S.A

The fact situation is identical for all intents and purposes to the Kraft v. Euro Excellence case, from Canada's Supreme Court - in which I was involved as counsel on behalf of the Retail Council of Canada and in which our arguments on the "hypothetical maker" issue carried the day.

All eyes will be on this US case, which will be a very important milestone in the never ending "grey" or :"gray" market and "parallel import" wars.

It could be heard later this year.

HK

A good call by Hon. James Moore on Funding for CDN Music Industry

As I tweeted earlier yesterday:

Bravo to @mpjamesmoore for serious $78 million support for CDN music. This is far more effective than an iPod "tax".http://bit.ly/9Rs7D1

Indeed, it makes a lot of sense to encourage Canadian artists directly through Government programs. That way, the money can go to Canadians and those who have a case to get it.

In this case, the three organizations entrusted with taxpayer's money are worthy ones - namely:

FACTOR: www.factor.ca

MUSICACTION: www.musicaction.ca

SOCAN Foundation: www.socanfoundation.ca

They should hopefully do a decent job of distributing $78 million of taxpayer dollars to worthy Canadian artists - at least in the commercial music realm.

Serious music is quite another matter, and requires further special attention. This is especially the case since the current management of CBC has effectively thrown serious music under a bus and destroyed 70 years worth of essential infrastructural support for it. It's still not too late to restore much of what was lost and even to save a lot of money in the process - not least of which would involve significantly lower tariff payments to SOCAN and Re:Sound (NRCC). But some serious decisions need to be taken by the CBC president if this is to happen, and if not by him, then by the Board of Directors and potentially, if necessary, by the Government.

Because funding programs are outside of the copyright system, they are not subject to the strictures of national treatment, which inevitably results in major outflows to the USA and EU.

This is far better than an iPod "tax" that would hand over lots of money to the the CPCC, which will eventually hand out what's left, after legal, consulting and other expenses, to mostly foreign interests on the basis of proven commercial success - i.e.not to emerging and/or deserving Canadian artists who don't show up enough or at all on the record or radio play data to benefit to any meaningful extent. . Not to mention the distortion and inefficiency such a "tax" would create in the market for everything from cell phones to laptops, and - of course - iPods.

HK

Justice Hughes on Canada's Copyright Act

Here is a recent breathtaking ruling by Hughes, J. of the Federal Court of Canada setting aside a "rolling Anton Piller" order that allowed for civil search and seizure before judgment against several "small shopkeepers." It is an excellent review of the dangers of this ultra-powerful enforcement weapon when used improperly and on the basis of "careless, inadequate or misleading" evidence. This ruling must be read with great care by any IP enforcement counsel contemplating use of an Anton Piller order.

And here's a statement from that ruling that should be brought to the attention of those who would impugn the adequacy of Canadian copyright law and are calling for additional and unnecessary enforcement powers:

[60] The Copyright Act supra is among the most generous of any intellectual property statute in Canada or elsewhere in providing for rights and remedies. Copyright subsists without the necessity for registration and is presumed in the absence of evidence to the contrary. Registration is cheap and easy and provides presumptive evidence as to copyright subsistence and ownership. Proceedings can be quickly brought as an application rather than an action. Damages can either be proved or an election to take statutory damages made. An injunction can extend to works not specifically put in issue. Allegedly infringing works can be taken into interim and final custody. An Anton Piller Order must be considered as an exceptional remedy to be used with caution and respect. It should not be considered as routine where so many other remedies and procedures are available.
(emphasis added)

For those in policy circles abroad who may not know him or have seen him at the Fordham IP conference, Justice Hughes was a preeminent Canadian barrister for decades before his appointment to the Federal Court. His books are - or should be - in every IP firm library in Canada. He speaks not only with the authority of a Federal Court judge but as a judge with vast and successful experience in IP law. His views require attention in any fora where IP policy is in issue. ACTA, CETA (Canada/EU) , Special 301 and domestic copyright revision immediately come to mind.

HK

PS - this 30 page ruling dated April 12, 2010 was issued five days after the hearing.

Levy Myths, Strange Bedfellows and Taxing Technology

So - the Liberals, NDP and Bloc have voted for a thankfully non-binding resolution supporting an iPod “tax”.

And here comes another “save the levy” love-in (i.e. press conference) of artists at the this year’s Juno awards in Newfoundland, paid for by the CPCC which places “levies” on CD’s many or most of which are used for anything but copying music. In other words, paid for in large measure by those who have used CD’s for baby and pet pictures and data backup.

Let’s get some facts straight on the proposed iPod “tax”. Yes - I’ve been paid to work against it in the past, but nobody is paying me to write the following. I’m a lawyer, not a lobbyist. And unlike a prominent Canadian copyright lawyer I recently heard speaking, I do disclose when I have had involvement on the record in litigation.

The last time the CPCC tried this on for size in 2007, it formally asked for a $75 levy (i.e. “tax”) on a 30 gig or more device, such as the iPod Classic which currently sells for about $270 in Canada and about $40 less in the USA. This $75 figure is a matter of record. See here at top of page 5. To deny or to fudge this is simply wrong.

If this “tax” or anything close were to be imposed, many Canadians would take the very easy step of buying such a device from the USA. There are highly reputable online retailers in the USA happy to ship to Canada and the shipping cost would be minimal, given the small size and weight. More retailers would appear. Why would a rational consumer pay a face value difference of more than $100, with the CDN dollar at par or better?

Here’s the key definition in Charlie Angus’s Bill C-499:

“audio recording device” means a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings, excluding any prescribed kind of recording device”

The way that Charlie’s bill is drafted, the levy would clearly apply to all kinds of cell phones, smart phones, external hard drives and even to laptops and personal computers, since they have “embedded” memory for all intents and purposes. Devices that use removable flash memory (e.g. Blackberries) would be off the hook, while others such as iPhones would be caught. This alone shows how unworkable such a “tax” is from the start. Of course, to even the playing field, the CPCC could try to “tax” removable flash memory, which it has not been able to do in the past and will not likely be able to do in the future. Since the Federal Court of Appeal has all but disowned its last decision on what “ordinarily used” means in the context of blank CDs, I doubt such a levy on removable flash would survive - even if the Copyright Board blesses it in the first instance.

So, the CPCC could seek a tariff on all kinds of devices at the Copyright Board, which has shown considerable sympathy with extending this levy scheme as far as it can be pushed and then some. The Federal Court of Appeal has not once but twice had to tell the Copyright Board that it cannot levy “devices”.

The exemption by regulation provision would be useless. Needless to say, getting exempting regulations implemented after the fact cannot be counted upon and would never be easy. The regulation making power of the Governor in Council should never be counted on as an antidote to bad legislation.

Politics often maketh strange bedfellows but the current alliance of the Bloc and NDP on this issue - plus today’s addition of the Liberals - is really odd. Here’s what the Bloc spokesperson said in the House the other day:

There can be no doubt that people must be paid for their work. All workers have the right to earn wages, even my colleagues and me. Artists and craftspeople have the right to be paid for what they do and create. Consumers have the right to load the CDs they have legally purchased onto their iPods without feeling like they are breaking the law every time, without feeling like criminals.

Let’s examine some of the contradictions, paradoxes and myths that flow from those two sentences alone, which are straight from the CPCC play book:

1. Sure, musicians should get paid for their work. But musicians aren’t working when someone shifts music from one format that has already been paid for to another - whether for preservation or convenience purposes. And why should they be paid from the proceeds of a very high “tax” on countless people who don’t listen to any music on these devices? All of these devices are, after all, multipurpose. That is the beauty of modern innovative technology and the very essence of the modern computing “machine” that can do whatever it is instructed to do. And that’s why there is not and likely will never be “taxes” on media or devices in the USA, the UK and Australia, which are Canada’s closest copyright proxies. These countries “get” the idea that technology shouldn’t be taxed in favour of the loudest interest group. Justice Stevens got it in 1984 in the US Betamax case when he carried a majority of the US Supreme Court in favour of innovation rather than inhibition of promising new technology capable of substantial non infringing use.

2. Consumers should not have to pay a “tax” to format shift CDs they already own. Even the President of CRIA agrees with that. The musicians have already been paid at least once - and more than once for those who have replaced LPs with CDs.

3. How many times should copyright owners get paid for the same thing? Musicians are already getting paid for iTunes downloads by the record companies - assuming that the record companies get around to it - which doesn’t always happen. The Board has already certified Tariff 22.A for composers and authors (subject to judicial review) for permanent downloads from iTunes, etc. This is SOCAN’s Tariff 22A. That is for a “communication right”, even though the composers are already getting paid for reproduction. More can be expected in due course from other claimants. Unlike US Courts, the Copyright Board has no hesitation in imposing multiple tariffs on the same transaction in favour of different collectives with more or less the same ultimate stakeholders for what the Board considers to be distinct rights under the legislation.

4. There is a myth that these “taxes” ensure that creators get paid. This is easy to dispel. The maximum average payout to beneficiaries of the Canadian private copying levy to date is about $160 a year, according the CPCC’s and www.savethelevy.com own figures. The average payout to actual individual creators is doubtless much less, because this figure includes some presumably very large payouts to publishers and record companies.

5. There is a myth the levies benefit creators. See #4 above. On the other hand, about $25 million to date has been paid out to date to a handful of lawyer and consultants and the employees of the CPCC. It is not a large organization. I strongly suspect that the levy results in no more than enough for a few beers per year per musician, and that’s only for those who show up on the CPCC radar screen on the basis of radio play and CD sales, which by definition is a fraction of the creative musician universe. Many emerging artists, most well established “serious” musicians, and many of yesterday’s stars are probably not getting a penny. Not to mention countless “session” musicians, who are the backbone of the music business. This levy means virtually nothing to them.

6. There is a myth that the levy system in Canada is transparent. However. I have been trying for a long time to get disclosure of such basic figures mean (average) and median payouts to creators and other categories of beneficiaries. The Copyright Board won’t require this disclosure, although it could readily do so in my view. It considers this to be an internal matter for the collectives. So, not only individual creators but the Canadian public have no idea of how much this levy really means to the average and median creator. I challenge the CPCC to provide audited figures on this to the public. But I won’t be holding my breath.

7. There is a myth that there is a reliable method in the distribution of the levies. They are supposedly distributed, as noted, according to data relating to radio play and sales. This, of course, has no obvious connection to what is actually copied but does clearly favour established artists and record companies. While the big record companies and collectives may keep a watchful eye on each other, I have seen no basis to assume that anyone is looking out for the interests of individual non-commercially significant creators in this distribution process.

I’m just getting started....

This particular exercise in Parliament will, of course, have no legal significance whatsoever - but it could have very interesting political consequences. Ironically, and not for the first time, these consequences will probably not be what the music industry intended.

HK