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

Lost in the iPod Shuffle “Tax” Shuffle

Charlie Angus, M.P. from Timmins, is the able NDP copyright critic and is doubtless Parliament’s most accomplished professional musician, although he has yet to perform with Yo-Yo Ma. But he is a two time Juno award nominee. Earlier this week, he caused a stir on the Hill with two items. The proposed iPod “Tax” Bill - which could have hit on everything from iPod Shuffles to Blackberries and even personal computers - did not sit very well with most people - and especially not well with the two responsible Ministers and the Government. Within no time, Minister Clement called it “nonsensical” and Minister Moore said “Consumers deserve lower, not higher taxes.” That’s a pretty decisive response from the Government, I would say.

Lost in the shuffle and the ensuing noise, spin and misinformation, was Mr. Angus’ other item, which was a very positive suggestion dealing with “fair dealing”:

M-506 — March 15, 2010 — Mr. Angus (Timmins—James Bay) — That, in the opinion of the House, the government should amend section 29 of the Copyright Act in such a way as to expand the Fair Dealing provisions of the act, specifically by deleting section 29 and inserting the following: “29. Fair dealing of a copyrighted work for purposes such as research, private study, criticism, news reporting or review, is not an infringement of copyright. 29.1 In determining whether the dealing made of a work in any particular case is fair dealing, the factors to be considered shall include: (a) the purpose of the dealing; (b) the character of the dealing; (c) the amount of the dealing; (d) alternatives to the dealing; (e) the nature of the work; and (f) the effect of the dealing on the work.”.

Mr. Angus' wording is a good first draft of what should be done in the legislation. It certainly merits discussion, as the Globe and Mail masthead editorial yesterday confirmed:

Mr. Angus also tabled a motion that would expand the Copyright Act's definition of "fair dealing," allowing the reasonable use of copyrighted materials for innovation, research and study - a welcome move.

Mr. Angus’ approach is completely consistent with the landmark decision of the 2004 Supreme Court of Canada in CCH v. LSUC. Indeed, it may do nothing more than to codify it. The CCH decision has been incorporated into the pantheon of American copyright scholarship by William Patry, author of one of the two leading treatises on American copyright law. Mr. Patry comments on how Chief Justices McLachlin's' reasoning on behalf of a unanimous Court in CCH fits into a great common law tradition in the evolution of “fair use” and “fair dealing” that is consistent with the ultimate purpose of copyright law, which is to “encourage learning.” According to Patry:

What Judge Leval [Appellate Judge of the 2nd Circuit Court of Appeals in the USA and fair use scholar], Chief Judge McLachlin [of the Supreme Court of Canada], and the early common-law judges who created fair use understood is that copyright is a system; it is not a thing, it is not a property right. Copyright is a means to an end, the end being to encourage learning. All learning is a community experience, and one that takes place over generations, over decades, over centuries. For any system to function, it must take into account, in a meaningful, liberal way, the manner in which humanity proceeds. In the case of copyright, this means that fair use must be viewed as an integral part of the system, and not a begrudging exception to a Hobbesian state of nature where ruthless enforcement of exclusive rights as private property is the ideal.”

So much for the “moral panic” comments circulating about the ills of the “fair use” approach and how it will hurt all manner of creators. It is no accident that America creates and exports both commercially and artistically successful culture and innovation with astonishing success. Its long standing embrace of an open ended common law evolution of permitted “fair” use in copyright law has served American creators and innovators very well, not to mention incredibly successful corporate interests in the content industries. In order to create great new content, it is necessary to absorb, use, “remix” and deal with previous work in a fair way. That cannot be circumscribed by a closed door approach and a list of often picky and silly exceptions, such as the infamous Canadian “dry erase board” provision introduced in 1988 - yes - 1988, not 1788.

This discrepancy hurts the Canadian creators who are supposedly being helped by some powerful corporate lobbyists, who never hesitate to profess to speak on the creators’ behalf. Maybe the reason that so many of Canada's talented comedians, film producers and others have moved to the USA is, at least in part, that we can’t do much satire or parody in Canada because of past restrictive interpretations of fair dealing, which may or may not be good law any more but are still on the books and have not been overruled. Nothing chills the creative spirit like the threat of litigation in the morning.

And so much for the bizarre suggestions under the lead authorship of a well known lobbyist that an approach such as that of Mr. Angus would violate the Berne Convention. If so, Canada would be in good company, namely that of the USA itself. It taxes credibility to suggest that there would be such a challenge over an amendment that essentially codifies the decision of Canada’s Supreme Court, which in turn incorporates and reflects more almost two centuries of the Anglo-American common law approach to the evolution of what is fair and permissible in the context of copyright.

Thus, it is more than curious why there is such a concerted effort driven by those same American corporate interests that have done so well under the US copyright system to deny Canada the benefits of one of the better aspects of the American approach and jurisprudence. Make no mistake - these folks are trying to push back and to effectively undo the decision in CCH v. LSUC.

Meanwhile, these same lobbyist folks are equally busy trying to force Canada to adopt the bad aspects of the US system as embodied in the DMCA approach, which has not worked well. Take this not from me but from the “architect” of the DMCA and the WIPO treaties, Bruce Lehman.

Canada has an opportunity to show leadership by picking the best features from other countries’ copyright laws, learning from their mistakes, and adding some considerable “made in Canada” value.

Recent Ministerial pronouncements are very promising indeed. We optimistically look forward to a copyright system that Canadians deserve and need and that will outlast the persistent attempts of lobbyists who would like to control the future of culture and technology by going backwards in time.

Bravo, Charlie Angus, for provoking discussion on this crucial “fair dealing” issue. Let’s hope that the fair dealing discussion doesn’t get lost in the the iPod Shuffle “tax” shuffle.

HK

The iPod "Tax": Misinformation re Heritage Committee's Report

It seems necessary to dispel certain inaccurate and misleading blog commentary about what actually happened in the Heritage Committee yesterday concerning the NDP's proposed iPod “tax”.

It is simply not correct to state, as James Gannon puts it in his blog, that:

To be clear, the MPs who voted in favour of this motion were not voting “for”, or signalling any kind of “support” for, this amendment to the Copyright Act, but merely voting for the Committee to consider the amendment at a later time.

That's not what happened. Here is what actually happened - according to the official source, which is Parliament itself. This, according to the Committee's official website, is what the Heritage Committee actually said:

Pursuant to Standing Order 108(2), that the Committee report the following to the House as soon as possible:

That the Committee recommends that the government amend Part VIII of the Copyright Act so that the definition of “audio recording medium” extends to devices with internal memory, so that the levy on copying music will apply to digital music recorders as well, thereby entitling music creators to some compensation for the copies made of their work.
(emphasis added)

That seems pretty clear to me and quite clearly contradicts Mr. Gannon's speculation. Here are the minutes of the meeting, which back up the Report.

The rest of Mr. Gannon's blog is largely a polemic against Prof. Michael Geist for "an over-politicization of the actual facts" and other various allegations.

However, all that Prof. Geist did in his blog was to describe succinctly and accurately what happened in the Committee, and the party affiliation of the members involved, along with the position of the two responsible Ministers of the Crown. That is essential information for anyone who tracks legislation. How exactly the provision of such information is "politicization" is quite incomprehensible.

Ironically, Mr. Gannon's blog is entitled “Depoliticizing the iPod levy”. Even more ironically, his concluding paragraph begins with this otherwise agreeable sentiment:

As the experience with "Fox News" in the U.S. has shown, by highly politicizing debated issues, the public will often be swayed into a narrative with "good guys" on one side of the political spectrum and "bad guys" on the other.

It strikes me that Mr. Gannon is the one who is being rather too political in this instance.

Mr. Gannon, who was called to the bar in 2009, is an associate at McCarthy, Tétrault, working under Barry Sookman, a well known lawyer/lobbyist for some very politically savvy clients, i.e. CRIA, CMPDA, and the Canadian Chamber of Commerce. While Mr. Gannon may very well have been speaking on his own, Mr. Sookman was very quick to tweet a link to his blog.

HK

March 18, 2010

PS - Speaking of "politicization" of copyright, here' s Mr. Sookman's latest blog entitled "Should Canada adopt “fair use” as proposed by NDP MP Charlie Angus?" wherein he says:

The fundamental role of copyright in Canada will not be lost on the Bloc and Liberals with strong roots in the Province of Quebec, or on the Tories with strong ambitions in that province.

(emphasis added)

I wonder how Mr. Gannon would characterize this analysis.

PS #2:

Mr. Gannon has now issued a "correction" to his post from yesterday.

Is a Canadian iPod "Tax" "Nonsensical"?

Charlie Angus, MP from Timmins and copyright critic for the NDP, who is normally very constructive on copyright matters, has introduced a private members bill C-499 to put a "tax" on iPods, cell phones, Blackberries and who knows what else unless it is exempted by regulation, and we all know how easy it is to get regulations enacted. Not.

The most succinct and immediate comment was from the Hon. James Moore, very hip, young and cool Minister of Canadian Heritage who loves his gadgets almost as much as he loves U2 and is a terrific exponent of culture, both of the Canadian and U2 variety.

This was the Hon. Minister’s own Tweet earlier today:

mpjamesmoore:

I am against the NDP's new proposed tax on ipods/blackberries/iphones/laptops/MP3 players. Consumers deserve lower, not higher taxes

(emphasis added)

Then, the Hon. Tony Clement, Minister of Industry, followed up with this quote in the Toronto Sun, which reported as follows:

Industry Minister Tony Clement says the government will oppose the bill.

"It's totally nonsensical. We cannot have a strategy of greater access to internet and to have a better digital economy in this country and at the same time have this NDP plan to tax iPods and to tax BlackBerries."

(emphasis added)

Now I can already hear the groans and imagine the expensive spin control underway (being paid for by the current “tax” of $0.29 on each CD) to tell the Ministers that its not a “tax” but a “levy”. And I know that the Copyright Board and the Federal Court of Appeal have said that the levy is not a tax. I ought to know because I got very close to persuading the Federal Court of Appeal that it is - but in this case, “close was no cigar.”

But who am I to question the wording of not one but both responsible Ministers who refer to the levy as a “tax”, along with virtually every Canadian who has ever paid an extra $29.00 for a stack of 100 blank CDs to store their baby’s pictures or back up their accounting data? And who don’t want to pay an extra $75 for their next iPod or be forced to buy it online from an American e-commerce store. BTW, those CDs which cost over $0.50 each in Canada because of the “tax” can be easily bought for as little as $0.12 each retail in the USA, which is levy free.

Where we did quite clearly succeed in the Courts was in convincing the Federal Court of Appeal to tell the Copyright Board - not once but twice because neither the CPCC nor the Board would listen the first time - that “the Copyright Board has no legal authority to certify a tariff on digital audio recorders or on the memory permanently embedded in digital audio recorders.” The Supreme Court of Canada refused to give the CPCC leave to appeal the first time, and the second time the CPCC wisely, didn’t even try.

So, regarding the iPod "tax", the CPCC has two strong strikes against it from the Federal Court of Appeal. It looks like they will get a third strike from the Government. Ministers Clement and Moore could not have not have been more explicit - or decisive.

BTW, here from the frankly incredible press release of the CPCC today, which still doesn’t “get it” after all these years, is the following gem:

The amendment proposed by Mr. Angus does not change the original intention of Part VIII of the Copyright Act which was to provide compensation to rights holders for private copies of music made by Canadians. The amendment is designed to rectify a semantic problem, which was unforeseeable in 1997. It simply allows for the levy to be pplied to digital audio devices.

“Semantic problem”? Really!

“Unforeseeable in 1997"? Really!

I guess that these folks had not heard in 1997 of something called “the internet”, something called “Moores’ Law”, something long before that called the “celestial juke box” and above all, the old adage “be careful what you wish for.”

The legislative history was clear then and is clear now. This levy - or tax - or whatever it is - was never meant to cover devices. Nor should it do so. We don’t need a tax on technology to prop up a moribund collective that was obsolete when it was started more than a decade ago and was very lucky to get as far as it did by taking in around $300 million so far, much if not most of it from countless Canadians who simply don’t use blank CDs or cassettes (remember them?) to copy music.

By the way, the CPCC’s average payout to the ultimate beneficiaries has been at most about $160 per year for those who actually receive cheques and likely much less in the case of actual individual artists. The cost of running the collective, most of which goes to lawyers, consultants and employees of this comparatively small organization, has been about $25,000,000 to date.

Sorry, Charlie, I have the feeling that this dog won't hunt. Even though Michael Geist is reporting some support amongst your fellow Heritage Committee members, including the Chair, it is unlikely that this will sneak through as a private member’s bill. Here, for Parliamentary Procedure Geeks is the road map.

If the two responsible Ministers and presumably the Government are so strongly opposed, passage is very unlikely.

Speaking personally, I don’t see the consumer electronics industry generally, including such giants as RIM, Apple, and Nokia and retailers who hope to sell these products in Canada welcoming this bill with flowers.

Besides, if for some unforeseen reason this becomes law, it will surely prevent WIPO treaty ratification for reasons well known to the government and those immediately concerned. In a nutshell, ratification of the WIPO Treaties would double the levy amount - and the extra money - likely in the hundreds of millions - would flow straight south. Not a very attractive scenario for any Canadian government.

And the prospect of another court challenge may cross the minds of some creative counsel. As they say, tomorrow is another day.

HK

March 17, 2010
PS - here's the Retail Council of Canada press release and here's Jennifer Ditchburn of Canadian press quoting Hon. James Moore further:

"This is a very serious hit to consumers that could impact them, and if the NDP are as committed to raising taxes this week as they always have been, then this is a real threat," Heritage Minister James Moore said Wednesday.

...

A new levy is just not on, he said.
"It's not in the interest of the music industry to make it more expensive to buy the devices on which they're listening to Canadian content," he said. "It doesn't serve the Canadian cultural community."

Trosow on Flexibility

Prof. Sam Trosow has republished his recent March 12, 2010 Lawyers Weekly article on his blog here.

Sam makes the excellent point that it is is unlikely that legislation that codifies a more liberal approach to fair dealing or has the effect of "relaxing the categories", would be subject to a trade-law challenge. Sam is an American trained lawyer and has expertise in both Canadian and American copyright law.

Sam suggests that:

The Act's fair dealing provisions should be amended to correspond with the values stated by the Supreme Court of Canada in CCH v Law Society of Upper Canada [2004] 1 S.C.R. 339. This could be accomplished simply by adding the words "such as" to the existing listing of categories and by incorporating the six fair dealing criteria adopted by the court into the Act.

The idea that reasonable steps in this direction would violate the three step test requirement of Berne, as suggested by Messrs. Sookman and Glover, is simply bizarre. Nobody has ever seriously suggested that Section 107 of the US Copyright Act contravenes Berne. Obviously, the US Government doesn't think so. For example, this provision explicitly states that that multiple copies for classroom use can be fair use. It also explicitly leaves the list of examples of fair use open, which has, for example, enabled the US Supreme Court to rule that parody can be fair use.

If Canada does what Sam suggests, the USA would look rather silly if it were to launch a trade challenge based on the Berne Convention and the three step test. It's a safe bet that there would be no such challenge.

HK

Will Canadian Copyright Revision Spring Forth Early?

This year, it sure looks like we are having an early spring.

And it may be that we will have an earlier than expected springtime copyright bill, as I am hearing on good authority.

Will it hopefully be truly “recalibrated” to serve Canadian needs and show Canadian competence, sovereignty and leadership? Or will it be the “Son of 61" - and follow in the footsteps of that very unpopular bill from 2008?

Will it be WIPO ready, and if so will Canada ratify the WIPO treaties? More crucially, will it be ACTA ready, whatever that may turn out to mean? If it is a balanced, reasonable and viable bill domestically, will that mean that Canada has drawn a line in the sand beyond which it will not go in the so-far-secret ACTA negotiations?

And above all, can any bill of any substance be passed in this minority Parliament and get through the Senate with adequate committee hearings and debate in time for the next election, whenever that may be? Bill C-32 - which was much simpler and much less controversial than Bill C-61, for example, took precisely a year to get through and that was with a majority government and without any effective mobilization of "citizen democracy" online. In 1997, we did not have blogs, Facebook, Twitter or YouTube.

If the next bill is truly balanced, well drafted, and comprehensible, it could be passed into law relatively quickly. If not, it may become the third failed bill in five years.

HK

Speaking of Ratification....UN Convention on the Rights of Persons with Disabilities

The Canadian Government has announced Canada's ratification of the UN Convention on the Rights of Persons with Disabilities at the United Nations headquarters in New York. Here's the press release.

Article 30 of that Convention provides that:

Article 30
Participation in cultural life, recreation, leisure and sport
[...]
3. States Parties shall take all appropriate steps, in accordance with
international law, to ensure that laws protecting intellectual property rights do
not constitute an unreasonable or discriminatory barrier to access by persons
with disabilities to cultural materials.

Canada is to be commended for ratifying this worthy convention. It is hoped that Canada does not enter into any future international agreements or treaties or pass any domestic laws that might conflict with the aforesaid Article 30.

HK

ACTA Setback in EU

IP WATCH confirms that:

The European Parliament today voted overwhelmingly in favour of a demand to be kept fully informed about the secretive Anti-Counterfeiting Trade Agreement under negotiation by the European Commission and about a dozen countries outside Europe. Parliament also opposed controversial provisions such as personal searches at European borders and cutting internet access for anyone found infringing copyright online three times.

Here's whole story. This is the latest crack in the ACTA walls of silence. And it's a very big crack, maybe a fissure, and maybe a potential breach.

The need for the need for the unprecedented secrecy in a broad based treaty negotiation that we have seen thusfar was recently eloquently stated by USTR Ambassador Ron Kirk when he said to Jamie Love, as reported here and elsewhere:

“The reason we can’t make it public is people would walk away from the table”

Well, that much at least is very transparent.

HK

On Bandying About Reports of Band Brands Behaving Badly

Here's something somewhat silly from WSJ about band brands behaving badly, with an uncool and insulting reference to French- Canadian jam bands being bandied about. (Don't shoot the messenger).

HT to the IP Kat and the IP Think Tank.

HK

Putting IP Into Yorkshire Pudding

I didn't know that cats like Yorkshire Pudding - but the IP Kat is all over it today. “Yorkshire Pudding” is being proposed as an official EU Geographic Indication ("GI"). And Canada is negotiating an FTA with the EU - so this has implications here. If you don’t believe me, see the IP Kat & BBC

So - does this mean that, if Canada signs a Comprehensive Economic and Trade Agreement (CETA) with the EU, I won't be able to order "Yorkshire Pudding" with my roast beef here in Ottawa at Hy’s, unless it's flown over fresh from Yorkshire? It would probably be a bit flat and soggy after the flight. What's next? Beef Wellington, Worcester Sauce, Dover Sole?


Jeremy and I are are doing intensive research on the economic, diplomatic and other public policy issues - not to mention - legal - that this initiative could provoke. As is often the case, the IP Kat is first to pounce upon delectable intellectual property morsels.

HK

Charting the Future of the Google Book Settlement

Here's a fantastic flow chart from Jonathan Band, an outstanding Washington IP lawyer, about where things may go on the Google Book Settlement ("GBS"). . It is fittingly called "GBS March Madness". But it is seriously realistic. And seriously complex.

However, I must assume that this was prepared before this week's US Supreme Court decision in Elsevier v. Muchnick, which ruled that federal courts do have subject matter jurisdiction over unregistered copyrights, thereby overruling the Second Circuit which is normally correct about copyright and which has been responsible for so much leading US copyright jurisprudence.

As I indicated yesterday, Justice Thomas' decision may have far reaching implications for the GBS, which appears to have been premised on the Second Circuit's now overruled judgment. Pam Samuelson's letter to Judge Chin, to which I referred, saw this coming and suggests that the lawyers for the subclass of authors should ask that the settlement terms be reconsidered or, failing this, that the Court should refuse to approve the the settlement until the class is redefined.

Although the parties must surely have foreseen this possibility, who knows what further unintended and unforeseen consequences may transpire? I wonder whether Jonathan's brilliant chart - which he already indicates does not reflect all possibilities - may need to be revised and transformed into three or more dimensions.

HK

Excerpt from today's Speech From the Throne:

Excerpt from today's Speech From the Throne:

Our strategy is clear: we must combine the best of our intellectual and natural resources to create jobs, growth and opportunity.

• The success of Canada’s economy depends on a skilled and educated workforce. Through Canada’s Economic Action Plan, our Government will continue to provide enhanced support for skills, apprenticeships and training for Canadian workers. It will make timely information on labour market opportunities available for all Canadians, especially in the area of the skilled trades. It will expand the opportunities for our top graduates to pursue post-doctoral studies and to commercialize their ideas.
  
• Our Government will also work hand-in-hand with Aboriginal communities and provinces and territories to reform and strengthen education, and to support student success and provide greater hope and opportunity.
  
• To fuel the ingenuity of Canada’s best and brightest and bring innovative products to market, our Government will build on the unprecedented investments in Canada’s Economic Action Plan by bolstering its Science and Technology Strategy. It will launch a digital economy strategy to drive the adoption of new technology across the economy. To encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada’s prosperity, our Government will also strengthen laws governing intellectual property and copyright.
  
• Canada has been a spacefaring nation for nearly 50 years. Our Government will extend support for advanced research, development and prototyping of new space-based technologies, especially in support of Arctic sovereignty.
  
• Low taxes are already helping Canada attract the investment needed to turn ideas into products and services. Our Government will keep tax rates competitive and low, while taking aggressive steps to close unfair tax loopholes that allow a few businesses and individuals to take advantage of hard-working Canadians who pay their fair share.
  
• Our Government will open Canada’s doors further to venture capital and to foreign investment in key sectors, including the satellite and telecommunications industries, giving Canadian firms access to the funds and expertise they need. While safeguarding Canada’s national security, our Government will ensure that unnecessary regulation does not inhibit the growth of Canada’s uranium mining industry by unduly restricting foreign investment. It will also expand investment promotion in key markets.
  
• Ensuring the broadest possible market for Canada’s goods and services will require the aggressive pursuit of free trade. Our Government will implement free trade agreements with Peru and the European Free Trade Association and ask Parliament to ratify new agreements with Colombia, Jordan and Panama. Given the disappointing results of the Doha round of multilateral trade negotiations and the rapidly evolving global marketplace, our Government will aggressively diversify opportunities for Canadian business through bilateral trade agreements. It will continue trade negotiations with the European Union, India, the Republic of Korea, the Caribbean Community and other countries of the Americas. Building on the successful negotiation of new or expanded air agreements with 50 countries around the world, our Government will pursue additional agreements to achieve more competition, more choice for Canadians and more economic growth.
• Our Government will also build upon the recent agreement that gives Canadian companies permanent access to state and local government procurement in the United States.

(emphasis added)

I'm not quite sure why the wording is "intellectual property and copyright", which creates an implicit distinction between the two concepts. I somehow doubt that this is the influence of the legendary Richard Stallman, who commented on this point recently on this blog here ;-)

HK

"Special 301" Live Tweets from Washington

Tune in to live hearings.

#acta

#ustr

HK

US Supreme Court Ruling re §411(a) - Implications for GBS?

In a judgment that is highly technical but may have far reaching consequences, the US Supreme Court (per Justice Thomas) today ruled that even though §411(a) of the US Copyright Act generally makes registration a precondition to an infringement action, is not "jurisdictional" in the sense of restricting a federal court's subject-matter jurisdiction. This seems to mean that the Courts below could have ruled on a settlement in a class action lawsuit that involved both authors who had registered their copyright and those who not. The Second Circuit Court of Appeals had said that the District Court lacked jurisdiction because of the unregistered copyrights.

The section provides that:

§ 411. Registration and civil infringement actions

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b),no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’

So, what does the section mean? Can the Courts below approve the claims of authors with unregistered copyrights?

Can someone now sue on the basis of unregistered copyright? The decision doesn't say this...but it seems that the Court can hear a case involving unregistered copyrights....

There is still a lot up in the air. The Court said:

In concluding that the District Court had jurisdiction to approve the settlement, we express no opinion on the settlement’s merits.

We also decline to address whether §411(a)’s registration requirement is a mandatory precondition to suit that— ... — district courts may or should enforce sua sponte by dismissing copyright infringement claims involving unregistered works.

What effect could this have on the Google Books litigation??? That proposed settlement is conspicuously limited in respect of US works as follows:

For United States works, the definition of Books remains largely unchanged: United States works must have been published and registered with the United States Copyright Office by January 5, 2009 to be included in the Amended Settlement.(emphasis added)

If the GBS is not approved by Judge Chin, will one side or the other or both want to sweep in unregistered works? Will they be able to?

Just wondering...

HK

PS - This indeed could be very important in the GBS context - see p. 9 ff of Pam Samuelson's submission to Judge Chin filed January 29, 2010 here. HT to Pam.