CRTC - Hard cases make bad law...

The stories today about an attempt to get the CRTC to block access to certain anti-Semitic websites in the USA that apparently go so far as to call for killing a certain pro-active Canadian lawyer named Richard Warman give pause for concern - indeed revulsion.

We are disgusted by people who advocate such garbage. But advocating such hate and assassination is very likely illegal in the USA where these wannabe Nazi(s) in question reside.

Surely, we should look to American authorities and American ISPs to solve this problem before the CRTC makes a potentially unwarranted and unwise decision that could set a dangerous precedent in terms of censorship and extraterritoriality.

Jack Kapica deals with this in his MSM blog, and quotes me on this.

It’s always good to remember, as T.S. Elliot wrote:

The last temptation is the greatest treason,
To do the right thing for the wrong reason.

HK

Ringtones - Observations on the 6% Solution

I’ve now read the Copyright Board’s Ringtones decision of August 18, 2006. Here are some observations.

1. It’s not obvious that any or all of the various methods of delivering ringtones to customers involve a “communication to the public by telecommunication”. The remaining objectors conceded that there was a “communication by telecommunication” of a musical work - but disputed whether it was “to the public”, which is indeed an arguable point. The objectors’ strategy was to argue that the communication was not “to the public” - and, alternatively, if there was liability, the “communication” aspect is purely incidental to the reproduction right and should thus be valued accordingly.

2. But, actually, it’s not clear that the provision of ringtones to customers in the various ways that this is normally done even involves “communication” or “telecommunication” at all. There are many ways of moving music around on the internet - and it is arguably erroneous to lump them all together as “communication” or “telecommunication” or both. For example, the transmission of a digital file that must be stored and may later be performed as a musical composition is arguably not the same thing at all for copyright purposes as real time on demand streaming that cannot be stored for later retrieval and amounts, in effect, to on demand radio or webcasting.

3. The problem with this decision lies in the result that effectively conflates and perhaps even confuses the communication right with the reproduction right. This goes back to the Board’s 1999 decision in SOCAN’s Tariff 22. Whether or not this should have been challenged following the 1999 Tariff 22 decision, or whether it should have been raised in this instance is a matter upon which reasonable minds may disagree. But the result, unless reversed, will likely compound the imposition of multiple layers of payment to multiple claimants for multiple rights involving the same activity and transaction. The concept of “double payment” will likely become “triple” or more.

4. Thus, ringtone users will eventually be making payments potentially for the communication right, the performance right, and the reproduction right to potentially three categories of claimants who sometimes wear multiple hats - composers/authors and their publishers, record producers and performers. The same will hold true for online music - i.e. iTunes.

5. In fact the Board itself even seems to hint in para. 12 of its decision that SOCAN could file a tariff for the “performance in public” of a ringtones, which would compound the multi layering problem to a new level, i.e.

SOCAN has not filed a tariff for the performance that may occur when a ringtone is played in a public setting. (Emphasis added)

6. The Board does more than hint in paragraph 7. It virtually lays down the red carpet for the recording industry to come and claim their share of the pie in respect of master tones (i.e. recorded performances).

7. Is this what Parliament intended? One would hope not. This would be the antithesis of efficiency and even the music industry has mixed feelings about it - witness the opposition even of CRIA to SOCAN in this hearing and to the music publishers in the CSI hearing on online music starting on September 6, 2006.

8. Even the Copyright Board cannot make the internet cash pie expand forever, and the current and future internecine battles in the music industry are mostly about how large the pie can grow and how it will divided before the growth boom finally gets corrected.

9. Note that composers and authors have always been paid for ringtones obtained though Canadian wireless providers or any other “authorized” sources, and access is tightly controlled in Canada. The essence of the transaction involves a reproduction - which has already been taken into account in the “behind the scenes” licensing. The question is how many more times and to how many more parties is the Copyright Board going to allow payments to be made? SOCAN doesn’t control reproduction rights here. But it represents the same composers, authors and publishers who do. If the Copyright Board is correctly interpreting the law, is Parliament going to stand by and let this multiple payment game continue?

10. This would not surprise me. The policy of Canadian Heritage is to support collectives in a variety of ways, including subsidies and legislation that creates new rights and the possibility of new tariffs and ever increasing revenues. Many of these officials probably see the prospect of multiple payments to multiple collectives for the same transaction as a good thing. Collectives do indeed serve an essential function - if not encouraged to excess. But the danger of the Canadian Heritage approach is that it appears to exemplify the old fallacy that that, if copyright is good, more of it must be even better. Lest we forget, we are dealing with the collective exercise of monopoly rights.

11. It was exactly this type of multiple payment problem arising from then new technology (“talking pictures”) that led Parliament back in the 1930's to put the brakes on SOCAN’s predecessor by establishing the predecessor of the Copyright Board.

12. The result of this decision is another blow to the concept of technological neutrality, as some would define it. Why should the efficient transfer of a file over the internet trigger copyright liability for “communication” by “telecommunication” when the provision of the same file by much less efficient physical means (e.g. sending a CD by snail mail) does not? Quite apart from the spectre of multiple payments and layering, this amount to a tax on efficiency. It could also spread to other businesses, even beyond the music business. If the Board is right, then it would presumably follow that e-books involve the “communication” of literary works. But I shouldn’t give Access Copyright ideas.

13. There are no “appeals” from the Copyright Board. Judicial review is available in principle, but the Federal Court of Appeal almost never gets involved in overturning matters that relate to facts or rate calculation, although a major effort is underway to reverse the Board’s recent large and controversial hike in the commercial radio tariff. Where the issue is purely one of law, the Court of Appeal holds the Board to a simple “correctness” standard - which is the lowest threshold for review. But very often, the issue is or is argued to be one of mixed fact and law and the Court of Appeal will then tend to defer to the Board.

14. The problem on judicial review here, if it is sought, may be that certain issues that might have been raised weren’t raised, and that the Court of Appeal may regard the issues already on record, in any event, as mixed questions of fact and law - thereby giving more deference to the Board’s reasoning.

15. On the communication point, it strikes me that the Board hung its hat mainly on one word - the word “might” - from an obiter dicta passage in the Supreme Court of Canada’s decision in CCH v. LSUC. In that passage, Chief Justice McLachlin said that:

I agree with these conclusions. The fax transmission of a single copy to a single individual is not a communication to the public. This said, a series of repeated fax transmissions of the same work to numerous different recipients might constitute communication to the public in infringement of copyright. However, there was no evidence of this type of transmission having occurred in this case.

(Emphasis added)

16. The Supreme Court was not concerned in that case with the niceties of the various architectural permutations of how things happen on the internet, and the Copyright Board appears not to have delved too deeply even in this instance into how ringtones find their way from a composers’ pen to the intrusive and usually distorted cacophony that we too often hear during quite meditative moments at the opera or in funeral parlours.

17. Moreover, a fax “transmission” - note that the Chief Justice does not necessarily equate the word “transmission” with the word “communication” - results immediately in something that is directly readable by the recipient. The transmission of a ringtone file does not immediately result in the conveying of any information - much less music - to any person. It must get properly loaded into the handset, paid for, selected, and is later activated only when the cell phone “rings”.

18. Nor, with respect, should the Copyright Board put too much reliance on paragraph 42 of the SOCAN v. CAIP decision in which Justice Binnie agreed with the Board that “a telecommunication occurs when the music is transmitted from the host server to the end user.” There is a potentially big difference between “the music” being “transmitted” and a file being copied that only later can be heard as music when it is played on a device. This may sound picky and even akin to sophistry - but that’s the nature of history of copyright law, which has always focussed on legal and technological niceties.

19. It appears that the objectors may have indirectly broached the “communication” point indirectly by arguing that the Board was really seeking to impose a “making available” right - which is required by the 1996 WIPO WCT treaty. But - as everyone knows - Canada has notably NOT YET ratified this treaty. And even if Canada does, the scope of the “making available” right is very uncertain and Canada would be wise to implement it in the most narrow and careful possible fashion. Ironically, the cursory 1998 analysis by Johanne Daniel and Lesley Ellen Harris, upon which the government relied for so long, concluded, without any stated reasoning, that Canada already complied with the WIPO WCT treaty in respect of the required “communication right” that included “a making available” right for composers and authors. The debate about whether Canada does or does not already have a “making available” right evidently is far from over. Some will see this decision as effectively confirming that we do, even if the Board says that we don’t.

20. The rate calculation issue will be even harder to review - the Federal Court of Appeal is very reluctant to interfere with the fact finding/evidentiary aspect of any tribunal’s work. Much of the evidence was treated as confidential - which may be just fine for the parties, including interests not present, although this leaves the public very much in the dark. Consider the expurgated final conclusion, which will cause considerable frustration to anyone trying to understand what the Board was trying to say here:

J. Ability to Pay[127] The Canadian ringtone market has grown very quickly in recent years. Mr. Sone estimated the revenues generated by ringtone retail sales in2004 to be over $15 million, and predicted that revenues might reach $30 million in 2006. In addition, the costs associated with the production and sale of ringtones seem to be quite low. Those figures, which were not challenged by the objectors, are indications of a financially sound industry. Moreover, the rate we have set is low enough not to lead to XXXXXXXXXXXXXXXXXXX in the ringtone market. In other words, larger than the XXXXXXXXXXXXXXXXXXXXX amount of the royalties that will actually be paid. There should therefore be no consequence on market prices.

(Footnote omitted)

XXX = expurgated by the Board

21. This is a highly unusual way to conclude a decision of this importance that will set the stage for much to come in the future. Look at the actual decision - it at least indicates the amount of space of the expurgated portions.

22. Interestingly, the rate arrived at by the Board after 14 months of consideration ends up being effectively the average of the rate proposed by SOCAN (10%) and the rate proposed by the objectors (1.5%). The exact arithmetic average would have been 5.75%. The Board ends up with 6%, although they have an admittedly more complex way of getting to that conclusion.

23. It is difficult to guess whether there will be judicial review. We’ll know by September 18, 2006. Depending on how one reads between the lines, so to speak, of the final paragraph, the 6% solution may not cause immediate serious pain to any of the remaining objectors. The Board seems confident that “There should therefore be no consequence on market prices.” - for reasons that must remain confidential. We shall see. That’s a lot for the Board to assume, especially when the impact of the inevitable future multiple layer ringtone tariffs becomes apparent.

24. The public interest factor in this case may not be as obvious as in some other Board decisions. If kids want to spend lots of money on ringtones and buy new ones every week in order to be “cool”, that is their decision - and it may annoy their beleaguered parents who will foot the bill. Clearly, this is discretionary spending. The real public interest lies in the legal and rate making precedents that are being set here.

25. The absentee proxy for the public interest - who is mandated by law to watch out here - is the Commissioner of Competition - who has basically never become involved in Board matters, even though there are many situations where such involvement might may be warranted. Moreover, the Board itself could and arguably should look out more for the public interest and play a more pro-active inquisitorial role. Instead, it treats most proceedings as adversarial. In the result, the administrative law process is often more adversarial than actual litigation.

26. If there is no attempt at judicial review, it may be because there is no immediate and direct cost/benefit advantage to any of the objector parties. If so, this will not be the first time that the public interest has been left behind by a simple cost/benefit analysis by the objectors and the unwillingness of the Board or the Commissioner of Competition to fully pursue their roles in the guardianship of the public interest.

27. The real danger is that this ruling on communication to the public by telecommunication will serve as a springboard - both legally and in terms of a quantitative proxy - for the forthcoming attempts by SOCAN and the music publishers and eventually others to add large amounts to the cost of online music obtained from iTunes, and other internet music modes, etc. The current 6% solution is far from a "low" rate. Given the size of the ringtone industry, it will be a lot of money and an important precedent and building block in other files to come.

28. It is not known why it took the Board 14 months to render this decision. Meanwhile, the CMRRA/SODRAC (“CSI”) attempt to add 15% to the cost of online music is about to start hearings on September 6, 2006 and will hopefully confront some of the “double payment” issues that are now looming larger than ever. That hearing is based upon the reproduction right. The SOCAN attempt to ratchet up the price of paid downloads by 25% based upon the allegedly applicable communication right is lurching along at full speed - albeit with several notable drop outs - including clients of mine once again. The SOCAN hearing in particular stands to be profoundly effected if there is successful judicial review of the current decision.

29. Finally, it’s frankly disappointing that the full Board did not hear this case. We had the benefit of the Chairman’s presence (he is a Court of Appeal judge from Saskatchewan). However, two of the most experienced Board members did not sit on this matter, which is potentially one of the most important that the Board has heard in a very long time.

HK

Ringtones and the Copyright Board's 6% solution

Fourteen months after its hearing of the inaugural “ringtones” tariff filed by SOCAN, and based upon a lengthy interrogatory process that began in 2003 and during which a major party (that happened to be my client) withdrew, a three member panel, including the Chair, of the five person Copyright Board has certified SOCAN’s Tariff 24 for Ringtones at a base rate of 6 per cent of the price paid by the subscriber for the ringtone, net of any network usage fees with a minimum of $0.06.

This tariff was strenuously resisted on several grounds, the most important of which was that the objectors believed that there was no legal liability. It was argued that the mechanism for selling ring tones was functionally no different than the delivery of a CD containing the ringtone file to the consumer - and that it was thus not a communication “to the public”, i.e. there is no “tapping into” on ongoing performance.

As I post, the reasons have finally appeared online.

An update will follow. This decision will be very important in several other pending matters.

We will try to assess whether this is a 6% solution or the beginning of more judicial review and controversy, with significant impact well beyond your cellular telephone bill.

HK

MY SONY (tm) STORY

Last year, SONY visited the Rootkit DRM fiasco upon consumers of many of its CDs. This allowed various very serious and even lethal computer infections - and was very hard to get rid of.

The RIAA and CRIA (both of which count SONY as a major big four member) want Canadian anti-circumvention legislation modelled after American law to protect SONY’s right to continue to deploy DRM and prevent circumvention of said DRM. The legislation that is being sought and which rumour says we will likely soon see may actually make it illegal to circumvent such affliction in the future. Technically, that is the case now in the USA. Just because nobody has been yet sued yet, never say “never”. The RIAA is suing dead grandmothers for copyright infringement.

This year, certain SONY laptop lithium batteries cause certain Dell laptops (that haven't succumbed to the Rootkit infection) to engage in spontaneous computer combustion.

Hopefully, this is just a catastrophic corporate coincidence. Whatever the reason, it's bound to "heat up" the market. Hopefully, SONY (and the RIAA and CRIA) won’t be seeking legislation to prevent consumers and firefighters from extinguishing computer fires caused by systems with “flaming”, "blazing" or “incendiary” performance. ;-)

These two innovative developments - Rootkit + Blazing Batteries - have certainly generated a lot of free publicity for SONY. This makes it nothing if not ironic that that SONY has applied to register the trade-mark LIKE NO OTHER for wares and services that include, you guessed it, compact discs and batteries. No, I’m not making this up. See Canadian TM application #1232337

Should SONY and its trade associations, RIAA/CRIA, be determining the future of Canadian copyright law?

CAVEAT EMPTOR.

CAVEAT LEGISLATOR.

HK

Captain Copyright - Confusion, Confession or Confrontation?

Captain Copyright is asking for your help. In the course of an unusual and somewhat apologetic and confessional "statement" that sends mixed signals, his sponsor, Access Copyright (“AC”), says:

We have already secured a number of subject matter experts and educators to serve on an advisory panel to review and revise the existing Captain Copyright materials, as well as assist with the creation of new materials focusing on topics such as the Creative Commons, fair dealing, and the public domain. One organization, the Canadian Library Association, has, unfortunately, declined our invitation to work with us on making these improvements and has chosen instead to publicly condemn the site. Access Copyright has nothing but respect for the CLA and its members, so we are saddened that the CLA has chosen not to work with us on improving the site and materials for educators.

I frankly think that CLA is wise to stay outside the tent and to be fully free to openly criticize. I and many others have said that Captain Copyright has no place in our Canadian class rooms. I highly doubt that he would be allowed by his sponsor to teach a truly balanced and informative view of Canadian copyright law, as I suggested the other day, such as explaining the concept of “users’ rights” as confirmed by the Supreme Court of Canada’s decision in CCH v. LSUC and how users’ rights enable students and teachers to use material for free and without permission in a potentially very broad range of circumstances. As I said the other day, “I can’t imagine how a consortium of Coca Cola, Pepsi, MacDonald’s, Wendy’s and KFC would be allowed to develop a “Captain Nutrition” or “Dr. Diet” program for Canadian schools that would be allowed in the classroom.”

Not having been invited to participate in this “advisory panel”, I don’t know what the express or more likely implied terms and conditions of such participation would be. But such participation would probably muzzle or co-opt the participants to at least some extent - and perhaps that’s why CLA has wisely refrained. Hopefully, the rest of the “Copyright Forum” - which includes the CLA and a who’s who of the Canadian library, archive, museum and educator establishment which somehow seem to take their lead from the Council of Ministers of Education, Canada (“CMEC”), will agree with the CLA’s approach.

Michael has reported that AC is in the lineup of copyright lobbyists asking for a handout from Canadian Heritage. Could it be to help fund the Captain’s quest for retroactive vindication by way of a legal opinion concerning his incredible linking policy - discussed here in its original form? Even currently, the policy says that:

Permission is expressly granted to any person who wishes to place a link in his or her own website to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of Access Copyright. Specifically, permission to link is explicitly withheld from sites featuring pornographic, racist or homophobic content. If you link to or otherwise include www.captaincopyright.ca on your website, please let us know.

AC has actually retained a law firm to advise on this. AC says that:

We are also saddened by the misconceptions that have been perpetuated regarding our web linking policy. We want to be absolutely clear that is was never the purpose of the policy to limit debate regarding copyright or criticism of Access Copyright. The purpose of the policy was to protect children from inappropriate content by restricting the types of sites that could link to the Captain Copyright materials. While we have seen similar language in, for example, the policies of school boards, we acknowledge that it was not clear in this case, so we have hired a law firm with expertise in this area to review and revise the policy.

Well, its rather basic that that the World Wide Web is all about linking and that there is simply no legal basis for AC to stop anyone - not even a pornographer or a hate monger - from non-defamatory criticism that includes a direct link to www.captaincopyright.ca It would be very interesting to see any legal opinion that suggests otherwise.

Anyway, the bottom line is that kids won’t likely find their way to www.captaincopyright.ca from a porn or hate site, or even from this site or Michael’s site or the many other critical and satirical sites. The danger is that they will find their way there from a gullible school board or other credible educational entity more concerned with “Copyright Correctness” than in teaching their students and encouraging innovative research and activity in the class room. Our schools, colleges and universities should be more striving to take full advantage of the internet and every other tool available in this competitive world of 2006. It is not their job to be copyright security guards.

At least on educational authority has already issued an advisory against using www.captaincopyright.ca The province of Manitoba quite properly points out that “The content on the site is selective and misrepresents what students and teachers may do without paying copyright royalties or asking for permission from the copyright owner. Critical information of benefit to students, teachers, and school boards is omitted.”

This is a positive sign in the educational community. Unfortunately, however, the same advisory also alternatively points the reader to Wanda Noel's Copyright Matters!, a booklet published by CMEC, a publication that is also very problematic in its own way, mainly by being excessively cautious, as I have discussed before. Not unlike Captain Copyright, Copyright Matters! seems much more directed at what teachers and students cannot do than what they can. Although Copyright Matters! was published the year after the Supreme Court’s 2004 decision in CCH v. LSUC, it inexplicably fails to mention or apparently take that landmark decision into account.

So - is Captain Copyright confessing to his sins and preparing for his own demise? Apparently, not likely. Or is Captain Copyright confronting his critics and preparing his next attack on the enemies and violators of copyright lurking in our schools and on the internet?

It's all a bit confusing - and dangerously distacting from the rumours of the impending maximalist legislation that the Captain will likley love.

HK

SFU Snafu

I was alerted recently to an outrageous example of what I call “Copyright Correctness” - or “respect for copyright” gone mad.

This concerns Simon Fraser University (“SFU”).

According to a publication by the SFU “Thesis Office”, written permission is required from the copyright owner for the author of any thesis to include more than "500 words or 2%" of any work or any “Tables, figures, photos and all forms of images obtained from any copyrighted source, including websites, professor’s lecture notes, or any material provided directly by the copyright holder.”

The rule about "500 words" is said to be a "University rule". The 2% requirement in the context of "Reproduction of Substantive [sic] portions" is said to be "lawyer recommended". In any case, the two criteria appear to be mandatory. It's not clear whether we are talking about the greater or lesser of "500 words or 2%" in any given instance. 2% of an op ed piece could be dozen words, or three or four words or less from a letter to the editor or a poem or an encyclopedia entry. On the ohter hand, 500 words could be only a couple of paragraphs of a 1,000 page book.

These categorical requirements are frankly nonsense. There is nothing in Canadian law to support or require them. This is especially odd considering that the document is dated October 13, 2004 - more than seven months AFTER the March 4, 2004 Supreme Court of Canada's CCH v. LSUC decision, of which SFU is apparently oblivious - as is the Copyright Matters! publication from CMEC published in 2005.

The document contains the seriously misleading statement that:

“There is no special exemption for scholarly non-profit use under Canadian law.”

"Research or private study", anyone? CCH v. LSUC, anyone? "Users' rights", ayone?

Besides, it will frequently be necessary to quote more than 500 words from one source, not to mention tables and figures.

I understand that non-compliance with these rules can result in a student's thesis being "denied".

The document is apparently based upon an earlier 1997 SFU publication. And the absurdity is compounded in a more recent iteration from July 18, 2006 which contains the astounding proposition that:

What is not permitted…

- Using material the use of which is expressly prohibited by a use or copyright statement accompanying the material in published website
or printed format.
- For example, Microsoft Inc expressly prohibits using any photo of Bill Gates without permission in advance for each use.

Microsoft can no more legally control the non-commercial use of Bill Gates' image than King Canute could stop the tide. So why does SFU take it upon itself to try to do so?

The only source referred to for “more information about Canadian copyright requirements” is Lesley Ellen Harris’s 2001 book, which is described as "the indispensable guide for publishers, web professionals, writers, artists, filmmakers, teachers, librarians, archivists, curators, lawyers and business people." Even at the time this book was published in 2001, its use required great caution. For example, it contained some serious errors of omission in its discussion on fair dealing. On page 128, the book failed to note that the trial decision in Allen v. Toronto Star had been reversed on appeal in 1997. In the important appeal decision, the Ontario Divisional Court allowed, as fair dealing, the use by the Toronto Star of a photograph of the entire cover of the November 1985 issue of Saturday Night, which included the plaintiff's photograph of Sheila Copps on a motorcycple on the basis of the nature and purpose of the use in question. Ms. Harris's discussion of parody on page 129 of her book omitted some key case law, including the very important leading case of Michelin v. C.A.W. that had been rendered by the Federal Court about five years before the 2001 edition of her book was published.

A much more helpful source and reference would have been David Vaver’s quite readable book (for librarians and lawyers alike) published in 2000 - which is actually seriously concerned with “users’ rights” and had a whole chapter so entitled four years before the Supreme Court of Canada’s decision in CCH v. LSUC. Vaver’s book is also very reliable, and has been cited several times by the Courts - including the Supreme Court of Canada in the CCH decision.

There is a disconnect at SFU. A university should be encouraging students to do research, not scaring the hell out of them, and threatening to deny their right to graduation if they dare use more than 500 words from one source. The university should not force or encourage their students to waste any time getting unnecessary permissions. On the point of getting permission, the document provides such helpful thoughts as:

Express appreciation for the originator’s work, when honestly felt
“Flattery will get you everywhere”, but keep it dignified.
You can make somebody’s day.

Finally, ironically, this document contains a copyright notice, which might come as a surprise to the management at SFU, by whom the author is presumably employed.

© 2004 Penny Simpson Assistant for Theses, SFU Library

Normally, the employer of a work created by an employee in the course of her employment is the first owner of copyright in the work.

I hope I haven’t quoted more than 500 words or 2% of Ms. Simpson’s work. ;-)

If I have, perhaps I should confess to Captain Copyright.

HK

PS - One eternally vigilant reader has already pointed out UBC has virtually the same policy and language.

Is there something in the air or water out there?

BTW, both the SFU and UBC web pages seriously misuse the term "public domain", i.e.

Copyright protection applies regardless of whether the work in question is published (such as a book or an annual report) or not (such as an internal company memo), and whether someone has put it out in the public domain (such as on a web site) or not.

I haven't done a precise word count but, by the SFU criteria, I wonder whether the UBC web page is infringing the SFU (or, should I say. Ms. Simpson's) work? ;-)

If anyone knows of any similar categorical rules elsewhere at Canadian or other universities or learning institutions, please let me know.

Developing...

The University of Calgary Conference on Ethics, Creativity and Copyright

These are some notes from the University of Calgary’s conference on Ethics, Creativity and Copyright held in Calgary and Banff on August 3-5, 2006. Here are just a few thoughts. I hope to follow up with some others.

1. This was an well organized, innovative, well conceived and well-balanced copyright conference. The balanced aspect is something we too often don’t see in Canadian copyright conferences these days. There was a rich variety of presenters representing several real creators, collectives, users, academics, and the library and archive community who put forward views that some in the copyright establishment might prefer to suppress. The collectives were represented by Access Copyright and SOCAN. I understand that CRIA, the well known trade association, was invited but did not participate. Kudos to the organizers, Profs. Greg Hagen of the Faculty of Law and Clem Martini of the Department of Drama.

2. Justice Roger Hughes of the Federal Court was present and very active as a moderator and vigorous audience participant. He has an extraordinarily prolific and important record as a litigator and author in Canadian IP law - and his recent appointment to the bench was a notable event in the history of the Federal Court of Canada.

3. There were several Canadian, American, Australian and other academics, including Dennis Karjala from Arizona - the eloquent, outspoken and early critic of the term extension movement in the USA.

4. There was a considerable amount of criticism of the ethics of the copyright establishment in Canada and elsewhere. There was much discussion of cases that raised ethical issues, most notably CCH v. LSUC and its important potential, if properly understood, for a new era in Canadian copyright. There was also quite a lot of discussion about the Michelin case and much desire for a explicit parody and satire exception.

5. All of this was all the more remarkable considering that corporate sponsor of the event was Access Copyright ( “AC”). Maureen Cavan and Roanie Levy from AC were both present and very gracious. I have often criticized AC and, on occasion, fought hard with them on behalf of clients. But, to be fair, AC has come a long way. I highly doubt that AC will repeat such mistakes as its involvement in the shameful criminal prosecution of Laurier Office Mart back in 1994-1995, before the current senior management was in place. And, based upon what Ms. Levy candidly and publicly said about AC’s hindsight regarding the CCH v. LSUC case, I am reasonably optimistic that AC will make a virtue out of necessity and be very slow to sue, instigate or support test case litigation against any legitimate library, archive, educational, museum, governmental institution, law firm or corporation any time soon.

6. AC also publicly admitted that much of the torrent of criticism concerning CaptainCopyright has been justified, that some of what the Captain says is simply wrong, and that steps are being taken to redress this. Personally, I think that the most positive step by far would be capital punishment. It’s not complicated - just hit the delete key for the website. He and his propaganda have no place in our K-12 system. I can’t imagine how a consortium of Coca Cola, Pepsi, MacDonald’s, Wendy’s and KFC would be allowed to develop a “Captain Nutrition” or “Dr. Diet” program for Canadian schools that would be allowed in the classroom. I’m not convinced that copyright law should to be discussed in K-12 classrooms any more than securities law or real estate. But if it does have any place, AC is clearly not the entity that should be allowed to provide the content.

7. And Michael Geist has just unearthed the fact that Captain Copyright other special interest entities have applied for funding, presumably under the rubric of “copyright awareness” from Canadian Heritage. There’s something quite troubling about PCH doling our taxpayer money to groups whose main mission is to create copyright propaganda, to lobby for maximalist legislation, and to do the same year after year- but that’s part of the way that Canadian Heritage keeps its constituency happy. These groups, with their sense of entitlement, represent rich and powerful corporate special interests. They are about as far removed as one can imagine from being disadvantaged or disenfranchised groups in need of a government subsidy. The Auditor General might wish to continue and intensify her examination of what goes on at PCH.

8. The Canadian Library Association - in a refreshingly blunt open letter - seems to agree that Captain Copyright has gone over the top and even suggests that the website may be illegal in Quebec on account of that province’s laws concerning advertising directed at children. An interesting thought.

9. AC could achieve much good will by killing off Captain Copyright ASAP. But if AC is unwilling to cut its losses in this way, the next best scenario would be for Captain Copyright to teach much more balanced lessons. Some of them might concern how the Supreme Court of Canada in the CCH v. LSUC recently gave broad recognition to users’ rights to copy material - even whole works in some cases - in the course of research without seeking copyright permission or making payments. And there is no categorical rule against making multiple copies.

10. True, we don’t yet know just how far the CCH v. LSUC decision will take us. But that is no reason to avoid or deny its potential. Many at the conference agreed that it is the most important Canadian copyright case in decades. Moreover, including appropriate discussion in Captain Copyright’s curriculum would be a valuable lesson in our justice system generally - i.e. just who are those impressive looking folks in red and white robes in that fabulous art deco building in Ottawa and what else do they do? This would surely be useful information to K-12 students. In my view, the Supremes’ ruling about the rights of researchers and users rights ought to be at least as applicable to school children and their teachers and students and professors in universities as it is to lawyers working on behalf of their clients. This would be a good start to the rehabilitation of Captain Copyright, if he survives this long, hot summer - which he hopefully will not.

11. Yes - AC has come a long way and admits, to its credit, that it is still not perfect (something that certain other collectives are incapable of doing). AC is more transparent than most other Canadian collectives, although its annual reports unfortunately no longer separate out various sources of revenue that would show more precisely how our tax payer dollars are being spent and whether AC has managed to get any significant corporate revenue, which would surprise me.

12. Collectives have always been controversial. AC has a particularly difficult task, since it has relatively little actual repertoire in its chain of title and appears to be more like an insurance company than a traditional collective (which doubtless is a factor in PCH’s big push for extended collective licensing). The performing rights societies have been in business in Canada and the USA for almost a century and are still controversial - even though they, at least, can lay claim to virtually all of the commercially important repertoire. Some collective activity is clearly necessary in our world. Precisely when and under what terms and conditions collectives are allowed to operate is debatable as an ongoing matter of serious and legitimate public interest and legal application. And the public interest is arguably not being adequately served. For example, the General Counsel of the Copyright Board pointed out the virtually complete absence of the Commissioner of Competition from the activities of the Copyright Board, despite the explicit mandate and role given to the Commissioner in the legislation to get involved on behalf of the “public interest”.

13. AC was born with considerable encouragement and a very generous $13,000,000 license kickoff from the Federal Government in the 1980's. This enabled CanCopy as it then was known to embark upon aggressive lobbying for even more rights and income. Their ship came home (once again) with Bill C-32 in 1997, which was a huge setback for the user community. Hopefully, AC’s earlier mistakes and excesses are in the past and the current signs of progress at AC will continue and potentially even serve as a model of sustainable collective activity in Canada. In this respect we will watch with intense interest to see how such things as the following unfold in the near future:
a. The death or, at least the conversion and rebirth, and rehabilitation of Captain Copyright
b. The prosecution of the very aggressive proposed tariff of $12 per year per K-12 kid (that’s a lot of students in Canada) and its potentially devastating precedent on post-secondary costs and whether AC will acknowledge the effect of the Supremes’ decision in CCH v. LSUC. Of course, this will depend on the manner and extent to which the Council of Ministers of Education, Canada (“CMEC”) or perhaps even the Copyright Board itself will hold AC’s feet to fire on this very important point. So far, there are no intervenors. One would have expected that the colleges and universities might have sought to intervene, since this tariff will likely be used as a springboard for enormous future demands on the post-secondary sector, which is arguably over-paying already in light of the fact that much of the current payments go to cover what is probably fair dealing - particularly in the light of CCH v. LSUC. AC has already spent about $3,000,000 on this proposed tariff - so they do mean business.
c. The involvement with Creative Commons (“CC”) in establishing a database about public domain works. Hopefully, this will result in something more than is now already available with a little search engine effort and will be a win/win for all interests. The project involves a collaboration with Larry Lessig and the Creative Commons. So far, the project is very vague in terms of specifics, deliverables and where the actual data is going to come from. But at least AC is recognizing the importance of the public domain, and hopefully this strange dalliance between AC and CC will result in the creation of something useful in the near future.
d. Whether or not AC will clearly commit itself to not seek licensing revenue from anyone for “publicly available material” on the internet - which would be an absurd and very expensive solution to a non-existent problem and a trap into which CMEC is plunging at full speed by seeking a special educational exception, thereby giving credibility to principle and likely creating liability for everyone else.

14. In any event, thanks once again to AC. Really. Their sponsorship was apparently with no strings attached. Even I was on the program. QED. This follows their quick repudiation prompted by Jack Granatstein (which I’ve bogged about before) of campaign contributions in the future to the next politician who wants to step into Sam Bulte’s ill fated fundraising shoes. These are good signs and ought to serve as lessons to certain other even richer collectives and trade associations who are much less tolerant of constructive criticism - or indeed any criticism. Much more is required - but we have to start somewhere.

HK

Excess in Anton Piller Orders

A dynamite decision from Justice Binnie and the Supremes today in the case of Canadian Bearings v. Celanese Canada.

A major Toronto law firm - Cassels, Brock - has been kicked off a case involving industrial espionage because the firm unintentionally but avoidably accessed privileged electronic documents in the course of review of evidence after execution of an Anton Piller order.

Their problem stems from carelessness and an excessively adversarial approach in circumstances that called for careful restraint in recognition of the exceptional position of responsibility imposed by the unilateral and intrusive nature of an Anton Piller order. The protection of solicitor-client confidences is a matter of high importance. (para. 54)

The Supremes ruled importantly that the onus is on the searching party to show that there will be no prejudice to the party that was searched. (Para. 55)

The decision is very important for its thorough review of the extraordinary Anton Piller procedure - which Justice Binnie says at the outset “bears an uncomfortable resemblance to a private search warrant”.

Interestingly, there is no indication that there was a Charter challenge to the very concept of an Anton Piller order - a possibility that was raised by an Ontario judge in the the recent Ridgewood v. Robbie case mentioned by Justice Binnie, in which the plaintiffs attempted to execute the search upon a terrified ten year old kid whose parents weren’t home. I’ve written about that case in the EIPR last year.

Indeed, Justice Binnie goes to some length to indicate that such orders are necessary in today’s world.

Para. 32 Experience has shown that despite their draconian nature, there is a proper role for Anton Piller orders to ensure that unscrupulous defendants are not able to circumvent the court’s processes by, on being forewarned, making relevant evidence disappear. Their usefulness is especially important in the modern era of heavy dependence on computer technology, where documents are easily deleted, moved or destroyed. The utility of this equitable tool in the correct circumstances should not be diminished. However, such orders should only be granted in the clear recognition of their exceptional and highly intrusive character and, where granted, the terms should be carefully spelled out and limited to what the circumstances show to be necessary. Those responsible for their implementation should conform to a very high standard of professional diligence. Otherwise, the moving party, not its target, may have to shoulder the consequences of a botched search.

This may suggest that a Charter challenge to an Anton Piller order would not likely succeed. But with all of the caveats and dangers that lurk for lawyers who obtain and execute such orders, and all the requirements that the Supremes have spelled out in some detail, and the repeated references to their exceptional and extraordinary nature, I’m willing to predict that we will see far fewer attempts to obtain them and far more reluctance on the part of Courts to issue them.

And that would be a good thing...

HK

ET Come Home...Hopefully Not To Close to CDN Copyright Law

Some professors at Dalhousie have published a provocative and readable paper on the very complex and very important subject of extraterritoriality (“ET”) entitled GLOBAL REACH, LOCAL GRASP: CONSTRUCTING EXTRATERRITORIAL JURISDICTION IN THE AGE OF GLOBALIZATION.

Not surprisingly, it draws attention to the Supreme Court of Canada’s complex and not very well understood 2004 decision in SOCAN v CAIP. In that decision, the SCC said that the Copyright Board was wrong to limit SOCAN’s reach only to situations where the server is located in Canada. In principle, the SCC held, a content provider in another county could be liable to SOCAN in Canada if there is a “real and substantial connection” to Canada. Justice Binnie indicated that:

(para. 60): A real and substantial connection to Canada is sufficient to support the application of our Copyright Act to international Internet transmissions in a way that will accord with international comity and be consistent with the objectives of order and fairness.

In terms of the Internet, relevant connecting factors would include the situs of the content provider, the host server, the intermediaries and the end user. The weight to be given to any particular factor will vary with the circumstances and the nature of the dispute.

With respect to Justice Binnie and the Supremes, this could mean a lot of trouble for Canada if the decision is misinterpreted and applied too broadly. In a certain sense, the whole ET discussion was largely obiter dicta because there was no particular scenario before the Court - and the Court recognized the highly fact dependent nature of the necessary enquiry to determine whether there can be liability in Canada . Indeed, apparently mindful of the potential reach of their decision, the Court issued a caution - which has drawn less attention than their otherwise somewhat bold assertion of ET reach:

This conclusion does not, of course, imply imposition of automatic copyright liability on foreign content providers whose music is telecommunicated to a Canadian end user. Whether or not a real and substantial connection exists will turn on the facts of a particular transmission (Braintech, supra). It is unnecessary to say more on this point because the Canadian copyright liability of foreign content providers is not an issue that arises for determination in this appeal, although, as stated, the Board itself intimated that where a foreign transmission is aimed at Canada, copyright liability might attach. (para. 77)

(emphasis added)

On a practical level, it will be very difficult for SOCAN to enforce its theoretical win. I cannot see MSN or YAHOO or countless other foreign sites that may in some way somehow involve music lining up to get licensed with SOCAN in Canada. Nor can I see them responding - other than by way of “make my day - we’ll see you in court” - to any demands from SOCAN.

The application of these ET factors is completely uncertain to the types of situations that readily come to mind. Never mind the enormous difficulties of what constitutes a communication to the public by telecommunication or a performance in public. On the latter points, we may hopefully get some insights in the presumably imminent Board decision on Ringtones, which has been pending for over a year.

I don’t think that the SCC meant its decision to be a carte blanche to SOCAN to go fishing for revenue in the USA or elsewhere. They seem to have explicitly recognized the possibility and danger of multiple payments (which I think is what they mean when they refer to as “layering” of rights) and that the WIPO treaty approach is to affix liability at the point of transmission. This may all get clarified if and when Canada ratifies the WIPO treaties. And it should get clarified in our enabling legislation because it is absolutely not in Canada’s overall interest to get to pushy on extraterritoriality, as I will explain and as the Dalhousie profs agree.

Some of this may also get clarified in the current version of the “100 Years War”, a.k.a. SOCAN’s Tariff 22 which is flaring up again at the Copyright Board. The latest version of the proposed tariff shows little indication that SOCAN has formulated any more precise or viable legal theory than it had in mind in 1995, and which led to the first trip to the SCC. The problem is that many objectors have already been worn down by the expense of opposing SOCAN and SOCAN’s interrogatory tactics (e.g. Archambault and Canoe) and the Board’s unwillingness to permit parties to participate adequately but on a limited basis in order to address legal and jurisdictional issues without being subjected to intensive and invasive interrogatories that will inevitably serve no other function than driving away worthy opponents.

Just because some end users may be Canadians certainly should not be sufficient to find liability against a foreign website owner. Hopefully, the Supremes meant that only to be one factor - and an inconclusive one per se. Were it to be otherwise, the Internet would come to a crashing halt - since any website can attract users from any country in the world. That’s why it's called the “world wide web”. The last thing that we need is each country assuming jurisdiction and applying their law over websites abroad because some users may reside in that country. If that were to become the norm, every Canadian website would have to clear its content under the laws of other jurisdictions ranging from the USA to the Uzbekistan.

That’s simply because what goes around comes around in this area - and we don’t want ET coming home to roost too actively in Canada. The authors from Dalhousie recognize this and conclude their report with an explicit reference to the SOCAN case and Canada’s interest:

That said, this is an option which should be used sparingly and cautiously. Canada, though not the smallest boat on the lake, most frequently sails with larger ones: the odds of it being caught in someone else’s wake are far greater than of Canada changing the course of others. Canada’s domestic privacy legislation, as we have noted, largely results from the economic influence of the European Union, which left Canada little practical alternative but to comply: the United States, though, being a larger market still, did not create the same kind of legislation Canada did, but has not lost access to European markets. Similarly, Canada could try unilaterally to impose its views on copyright law on the international community, taking the robust approach to “real and substantial connection” that the SOCAN case suggests. This carries a certain risk, however, if Canada “legitimizes” one state unilaterally imposing its standards on others by doing so itself, this helps to free up the dominant players to act likewise, and in a way that might not accord with Canadian interests. With specific regard to copyright, the dominance of U.S. intellectual property interests internationally dictates that unilateral use of extraterritorial jurisdiction by that country could end up imposing American copyright law on Canada as well as others.

Even allowing that exceptional circumstances might exist where Canada could and should act unilaterally in the absence of international consensus, it must choose the occasions sparingly. While the edifice of territoriality is being slowly dismantled by globalization, this should compel Canada to be defensive and proactive in equal measures as it seeks both to protect and to promote its own interests in the new global order.

(Emphasis added)

For example, if the USA were to get as proactive as Canada is in danger of becoming on ET, it could become illegal in the USA for a Canadian Joyce scholar - for hypothetical example - to post stuff on her Canadian website that is PD here but not there - because of our rightfully and thankfully shorter term. If an American copyright owner were to sue in an American court merely because the site was accessible to Americans, the owner of that website would have to defend - otherwise he or she might get arrested at the American border if a negative default judgment were to be obtained - even if the judgment were not enforceable in Canada. That’s the post 9/11 reality.

In this case, the SCC has opened the copyright ET door in a way that may tempt lower courts or the Copyright Board at the behest of copyright owners to push farther than the SCC may have intended - even with the caution in place. Justice LeBel recognized this in his careful dissent. Parliament may need to put a stopper in place so that we don’t end up falling into a trap set by SOCAN’s potentially overreaching position in Tariff 22 and the SCC’s at least partial agreement with SOCAN’s view of the world.

The Dalhousie study finds the majority reasoning in the SOCAN case to be “confusing in that it refers to the extraterritorial application of the Copyright Act, suggesting that Canada has taken prescriptive jurisdiction over matters outside its borders.” The study seems to suggest at page 40 that the SCC perhaps went to far in applying the Mother of all ET decisions in Canada to the world of the internet and copyright. This is Libman decision of the SCC in 1985 - in which there was clearly a “real and substantial” connection to Canada. A bunch of fraudsters operated a fraudulent stock market boiler room in Toronto - but argued that they couldn’t be prosecuted in Canada because their victims were in the USA and their money was hidden away in Central America, from where the promotional material was mailed. The accused argued implausibly that the offences hadn’t occurred in Canada. Clearly, there were crimes and they had to prosecuted somewhere. In the SOCAN situation, there are no “offences” and if - I repeat IF - a foreign website somehow attracts a Canadian audience, the liability should be determined in the foreign country and the fact that there happens to be a Canadian audience should not per se be sufficient to ground liability in Canada.

I would allow that the situation could be different in the event that a foreign website is actually specifically targeting Canadians - i.e. “Canadians come here - we welcome Canadian Dollars at par with USD - get your illegal movies cheaper here!” And especially if there was clearly at least some element or inseparable element of some infringing activity taking place inside Canada. Some of this may become clearer if and when the British courts deal with BPI’s lawsuit in England against www.allofmp3.com which is the supposedly legal-in-Russia and very cheap but not quite free download site.

Anyway, I highly commend the Dalhousie study by Professors Coughlan, Currrie, Kindred and Scassa. It is important and timely. It was prepared for the estimable Law Commission of Canada, which has done other good work in IP - in which I was privileged to have been closely involved on another complicated issue - security interests in IP.

HK

DOHA Dead?

The DOHA round of WTO trade talks appears to be dead. Not even D.O.A. Dead before getting that far.

The developing countries had hoped to recoup some of the ground they lost in the Uruguay Round that lead to the TRIPS agreement in 1994. They wanted to push for such things as disclosure of the origin of genetic resources in patent applications and the the relationship between the Convention on Biological Diversity (CBD) and the WTO TRIPS Agreement. Here's a good take on the IP situation.

This may lead to renewed US attempts to push bilateral and regional "free" trade deals - such as the Free Trade Agreement of the Americas (FTAA). This could be more difficult now in South America, since several countries have swung to the left since the last major attempt to push the FTAA in 2003.

NAFTA could also be reopened - and the USA may pressure Canada to "harmonize" upwards to Mexico's more than absurd copyright term of life + 100 years.

Hopefully, Canada will resist the inevitable pressures that will come to trade off sovereignty and sound Canadian IP policy for increased "access" to US markets - which means very little anyway. Just ask anyone in the lumber or beef business.

HK

Classical Music Composers and Performing Rights Societies

Here's a very interesting article by an American law student with some musical background - whose name happens to be Amanda Scales. It suggests that copyright laws are actually hurting the cause of serious or "classical" composers - mainly through the excessive term of protection and an American problem having to do with the "Fairness in Music Licensing Act".

While the article is focused on American law, there are some aspects that ring true here - namely her discussion of the "follow the dollar" approach that North American societies have used since the early 1990's - which eliminates any "subsidies" or "tribute" as she calls it to classical or serious composers - who by definition don't get much air play or performances in bars, etc. She doesn't use that term - "follow the dollar" - which was used in the SOCAN milieu - but see page 285 of her article.

She suggests on the last page of her article that classical composers should form their own performing rights collective - something I have talked about for years. Naturally, there are big economic barriers to such an endeavor - but a good case could be made for government funding to get one at least up and running in Canada and to provide some ongoing support. The Department of Canadian Heritage has subsidized a number of its clients and collectives lately that don't need any subsidy.

Here's the link again... it's an excellent article from a law student and highly worthwhile by any standard...

HK

ADDENDUM:

There's a very good critque of Ms. Scales' paper by one M. Gladu by way of two "comments" - click below. It merits a full response, which follows:

Dear Mr/Ms Gladu:

You are quite right - the paper is far from perfect and somewhat lacking in evidence and rigour. However, it is an excellent paper by undergraduate law student standards and your very articulate and expert critique confirms that it does a great job raising issues and topics. I’ve seen many writings about collectives that are ultimately much less accurate and informative by people who are very experienced.

A few points in response to your comments:

1. You ask “Are concert/live music licenses fairly valued?” Well, that was certainly a very major issue in the 1994 Canadian Copyright Board decision in which SPACQ (a Quebec based association representing the interests of composers, etc.) argued forcefully that SOCAN was greatly undervaluing the concert tariff in the rate it sought from the Copyright Board. The Board agreed in principle - and although it couldn’t change the rate for the period in question, it clearly concluded that

The rate will therefore be set at 2.2 per cent for the whole period. The Board hopes, however, that SOCAN will give due consideration to filing its proposed concert tariff for 1995 at a rate higher than that in the SOCAN/CAMP agreement. The Board is of the view that unless this course is followed, the interests of SOCAN's members will not be properly served.

(emphasis added)

This spat between SPACQ and SOCAN is still a sore point for SOCAN and likely to remain so for a long time.

2. You say that “...some sources appearing in her bibliography are just not well-versed and specialized on reporting/critiquing the activities and inner workings of the administration and collection of performance royalties. Miss Scales should have gone direct to the source...” Well, I’ve enjoyed a long and at times quite warm rapport with the major PROs in North America. They are always very courteous but rarely very transparent - although I have to say that SOCAN is probably more transparent overall and accessible on the whole than any other major collective in Canada - but that’s not saying much.

3. Even members have a hard time understanding how the distribution rules work in PROs. The chronic and persistent complaint by serious music composers is that their royalties have been going down since the merger of the two Canadian societies in 1990 and the “follow the dollar” movement of the early 90's even if their performances are doing well. The concert and broadcast rates in Europe and Japan are said to be MUCH higher abroad in many cases than Canada - so they often get bigger income from foreign than domestic sources - even though they are performed more here in Canada. SOCAN won’t hear any discussion of a “cultural fund” - which helps serious composers in Europe. The SOCAN Foundation is better than nothing - but barely so in terms of the overall problem.

4. At least in the USA, there is a choice of three PROs. In Canada, there is now only one. Many now regret the 1990 merger - though they are afraid to say so in public. The dirty little secret is that some Canadians have joined with one of the American collectives. They somehow have found this to be advantageous.

5. I agree that her analysis of the effect of term extension may be somewhat unconvincing, but the fact remains that the increase to life + 70 cannot possibly help serious composers. It may help their publishers and sometimes lazy and occastionally difficult grandchildren and great grandchildren in some rare cases. An example of "difficult" might welll be Stephen Joyce. The 1998 CTEA (“Sonny Bono”) term extension legalisation put a 20 year moratorium on works entering the PD in the USA. There is every basis to fear that this trend to extension and moratorium will continue - especially given Mexico’s recent inexplicable move to life + 100 and the effect that may have on NAFTA. So, it may be a very long time before anybody can do an arrangement of or themes and variations on early 20th century masterpieces - such as those by Straus (d. 1949) or Stravinsky (d. 1971). Ironically, Stravinsky is often quoted as saying “ Lesser artists borrow, great artists steal” - and that is clearly true of his own work, as he was quick to admit. But when he “stole”, he also infinitely enhanced. Ms. Scales has a point here - even if she doesn’t quite hit the bull’s eye in terms of methodology or evidence. If term extension gets in the way of the work of the next Stravinsky, Ives, Dvorak or others who blatantly borrow, that will be very said. If serious music publishers actually seriously “invested” in younger unestablished composers and actively promoted their work, there might be some faint argument for term extension. But this isn’t the case any more, if it ever was the case in recent times.

Anyway, thanks for your comments. You seem very knowledgeable indeed. Call me anytime and we’ll chat.

HK

Exploiting Kids as Copyright Cops

There's a scary story in today's NY Times about how the Hong Kong government is somehow getting Boy Scouts and other kids in uniforms to spy on and report copyright infringers.

It's bad enough when Access Copyright and other private interests try to warp the minds of children with inaccurate propoganda. But when the State turns little kids wearing Boy Scout and Girl Guide uniforms into spys and snitches, it's really regrettable. According to the story:

Starting this summer the Hong Kong government plans to have 200,000 youths search Internet discussion sites for illegal copies of copyrighted songs and movies, and report them to the authorities. The campaign has delighted the entertainment industry, but prompted misgivings among some civil liberties advocates.

The so-called Youth Ambassadors campaign will start on Wednesday with 1,600 youths pledging their participation at a stadium in front of leading Hong Kong film and singing stars and several Hong Kong government ministers.

The Youth Ambassadors represent a new reliance on minors to keep order on the Internet. All members of the Boy Scouts, Girl Guides and nine other uniformed youth groups here, ranging in age from 9 to 25, will be expected to participate, government officials said.

It's too bad the the Boy Scouts leadership can't follow it's own motto and "be prepared" to speak truth to power in this instance.

HK

G8 Lobbying

The G8 has issued a declaration entitled Combating IPR Piracy and Counterfeiting.

This declaration was the result of a well-orchestrated effort by American and British lobbyists who were very influential in St. Petersburg.

A collection of the usual lobbying suspects in Canada (including CRIA, CMPDA, CMPA, and CAAST) has issued a press release congratulating the Canadian governmnet on signing on and indicating - in their all too frequently misleading fashion - that:

Furthermore, we look forward to the Canadian government fulfilling these commitments as soon as possible in order to better protect intellectual property in the digital age. The introduction and passage of new federal copyright legislation will be a key step to fulfilling the commitments.

(emphasis added)

These Canadian lobby groups are largely branch plants of their American masters.

There is, of course, nothing in the G8 statement that requires Canada to enact any legislation.

Speaking of international obligations, only two of the G8 countries - the USA and Japan - have yet ratified the 1996 WIPO Treaties. Canada continues to meet and exceed its international IP obligations - unlike the USA which has been found to be in serious contravention at the WTO of its copyright obligations and is clearly unable or unwilling to do anything about it. People who live in glass houses...

Speaking of piracy, these organizations behind the Canadian press release - particularly the music and computer software industries - have a very expansive, elastic and invasive notion of what they mean by “piracy”. It would catch just about every home and business in Canada.

The injection of IP into the G8 agenda reflects the enormous efforts being devoted to preserving fat margins and failing business models though massive government intervention in the form of ever increasing levels of IP protection. This will actually impede the progress of technology, international development and access to knowledge. Hopefully, Canada’s new Government will see through this and do what’s best for Canada.

IP is a big issue between the US and Russia, and a problem for Russia in terms of entry into the WTO. But one would have thought that there are much more urgent matters affecting the public interest of the planet for the G8 as a whole to worry about.

I keep reminding certain lobbyists to be careful about what they wish for. Elevating IP to this level may seem like a short term victory - but flying too high with politics and IP can be dangerous.

HK

More Margaret Atwood on Copyright

A certain vigilant Easterner has brought Ms. Atwood's latest pronoucements to my attention. Canada’s "Queen of CanLit" and copyright proclamations is at it again. She says in a recent interview in the Halifax Chronicle Herald that:

And don’t forget that copyright is a fairly recent thing, it was brought in the 19th century because people in the States were pirating books written by English writers, and selling them at no profit to the writer or the original publisher, often in a mangled version so writers were losing control of their text, of any income that they might have otherwise had, and publishers were losing out. And once the States also had writers that were being pirated, they got together and made copyright law to protect their markets.

Well – let’s not get too technical. But Ms. Atwood is off by about two centuries and one whole continent. The British Statute of Anne goes back to 1709 – and it’s viewed as the first “modern” copyright law to which today’s copyright statutes trace their legal DNA. The American's didn't get serious about copyright law until 1909 - and even then, they underprotected their own nationals and everyone else until 1976.

This is almost a rich as her comment about copyright exceptions at the 1996 Committee hearings:

If copyrights were cars, this would be car theft.

Can’t wait to see what she’ll come up with next. Between her, Graham Henderson and Captain Copyright, who needs to read ever-so-boring books, cases and legislation?

But in all seriousness, the Committee took her very seriously last time and eviscerated the concept of "exceptions" to a shocking extent. So, her colourful comments have to be taken seriously because the next Committee and the Canadian Heritage bureaucrats may well take them seriously - again.

Which is another reason why it's so important for the next Commmittee to be adequately informed - in either official language - rather than be uninformed because they will only look at written material in both official languages.

HK

Captain Copyright's Contender

Captain Copyright now has a contender when it comes to pernicious propaganda. And it’s none other than the Law Society of Upper Canada (“LSUC”). The LSUC (and several of its other provincial counterparts) have taken it upon themselves to inform their members that software piracy is not only illegal but also unethical. For convenience, I'll refer to the LSUC - of which I am a member.

One might be tempted to ignore this as a bit of presumptuous paternalism. Howver, the LSUC should never be ignored. There’s a mandatory aspect to all of this and the LSUC does have the power to govern the legal profession. But, wait till you see what they define as “illegal”.

The LSUC has a publication innocuously called GUIDELINES ON ETHICS AND THE NEW TECHNOLOGY. This was apparently prepared by or for the Law Society of Alberta and disseminated by the Federation of Law Societies of Canada in 1999. It has been adopted by other provincial law societies as well. Here’s the orginal document, with some references that are missing in the LSUC version. Note the several references to the Copy Right [sic] Act.

It deals with such innocuous topics as advertising on the Internet, not practicing in jurisdictions where one is not licensed, etc. Then, for some inexplicable reason it has as its centrepiece a section entitled SOFTWARE PIRACY with a whole appendix on the subject. The sources of information are the Software Publishers Association – now the Software and Information Industry Association (“SIIA”) and Microsoft. The SIIA is a very powerful Washington lobby and anti-piracy trade association.

According to the LSUC (on the advice of its ever so dispassionate sources of information):

Software piracy is illegal and unethical. Lawyers shall ensure that support staff and students-at-law uphold the ethical standards of the lawyer’s practice. The management and organization of and compliance with license agreements for
all software used by a firm shall not be left entirely to an office manager or
support staff.

A lawyer can guard against accidental software piracy by carefully reviewing the provisions of the software licensing agreements for software used in the office. Where strict compliance with the licensing agreement may cause a hardship, exemption must be sought from the licensor.
(emphasis added)

Nowhere does this publication tell one that the Canadian Copyright Act has explicit provisions (s. 30.6) that permit, inter alia, the making of a backup copy of a program or the making of a copy for the purpose of making a program compatible with the user’s hardware. Whether doing so could entail a breach of contract is another and by no means clear matter – but it is emphatically not copyright infringement.

The appendix gets worse. It states “Pirating can occur whenever copying occurs.” And what is copying? Well, why don’t we ask Microsoft? According, to Microsoft, as adopted by the LSUC:

What is software piracy?

Software piracy is the unauthorized copying, reproduction, use or manufacture of
software products. Microsoft defines “copying” as:
(1) downloading software reproducing it) on a computer’s temporary memory by running the programs from a floppy disk, hard disk, CD ROM,
(2) downloading software onto another media such as a hard disk (e.g. a diskette) or a computer’s hard disk (the computer’s main information storage area); or
(3) using software that has been placed on an office’s network server.
(emphasis added)

Those categorical statements ignore the fact that this is how programs are meant to be used, and that s. 30.6 of the Copyright Act exists.

The appendix contains the blatantly incorrect categorical statement that “Copying software is illegal, regardless of whether the copied software is thereafter offered for sale, is given away free, or is retained for the copier’s own use.” Once again, LSUC – please read s. 30.6 of the Copyright Act. And have a look at http://www.download.com/ - which legally gives away - and offers up for “copying” - oodles of useful software. Copying software is simply not categorically illegal - it all depends on the circumstances.

What is wrong about all of this?

• This is another example of the cacophonous conflation of copying and piracy. And now, add ethics to the mix. Not all copying is illegal, much less piratical. Piracy is a word that should be saved for those engaged in serious commercial activity, not hard working lawyers who want to make back up copies of their essential and crash prone software. To do so in not an indictable offense, as this document seems to suggest.
• The LSUC has become the likely unwitting shill of a very powerful lobby and anti-piracy group and Microsoft itself. Let’s give the LSUC the benefit of the doubt here and assume for the moment that they don’t know better and that this was inadvertent (although that’s a scary thought for lots of other reasons relating to their immense power and resources). After all, the document didn’t originate from the LSUC. But it does bear the LSUC logo. The Federation of Law Societies of Canada might wish to explain how this document evolved.
• This is typical of the modern trend to copyright correctness that is trying to make all of us agents and copyright owners and collectives. This is why CMEC’s Copyright Matters! booklet troubles me – with its incomplete, oversimplified and even simplistic pronouncements and excessively cautious advice to teachers. This why I and others are so concerned with Captain Copyright’s obvious efforts to turn little school children into the equivalent of youth group copyright cops.
• “Ethics” is without doubt the most important aspect of being a lawyer. Our consciences and our credibility as lawyers depend on upholding the highest standards of ethics. The LSUC should be very careful about treading into ethical territory when there is no need and their research is so incomplete. This is the ultimate issue. Please, get it right or leave it alone.

From my point of view, there are indeed profound ethical issues involved on the part of those who wrongfully and deliberately mislead and misstate about copyright law, for example in a way that would deny copyright users’ their lawful rights, or assert sham claims, or misinform law makers in order to influence policy. Indeed, there are a lot of ethical issues involved with copyright law and many of them will be explored at what promises to be an excellent conference next month hosted by the University of Calgary at Banff. I will be there and presenting a paper. Stay tuned.

Lawyers are not school children. But most lawyers are also not copyright experts and the LSUC and other law societies wield immense power – obviously much more than Access Copyright and school teachers. I think that it’s wrong for law societies to disseminate incomplete and incorrect copyright information and to lay down ethical dicates based upon it. In this case, the intentions may have been honourable but the result is very unsatisfactory.

HK

Official Languages - When "Either" means "Both" or "Neither"

As reported, on June 26, 2006 Judge Layden-Stevenson of the Federal Court ruled against my application for a declaration that the Heritage Committee violated my official language rights when it refused to distribute documents that were an essential part of my testimony because they were in English only. Naturally, I’m disappointed and I’m considering an appeal. There is already interest in interventions. The decision is now online - in English only.

The bottom line is that the Heritage Committee, the Commissioner of Official Languages, and now the Federal Court are saying that bilingualism today means that I can’t use unilingual documents as part of my testimony to a Parliamentary Committee. For example, in this case, the Heritage Committee refused to let its members have copies of definitive, relevant treatise material by Mihály Ficsor, the world’s leading authority on the issue then being considered (the WIPO treaties) published only in English by Oxford University Press. This Committee chose to remain ignorant of this essential part of my testimony (i.e. Ficsor’s supportive analysis) rather than to have access to it in English only. My documents were not distributed to the Committee members.

I won’t go into the details of why this material was so essential to my testimony and presentation as a witness, but anyone familiar with the issue of national treatment, the WIPO treaties, and blank media levies will know that hundreds of millions of dollars are stake. Neither the substantive copyright issues nor the Committee’s Report were in issue before the Court in any way. The question before the Court involved the right of everyone to use EITHER the English language - OR the French language - to present testimony about this or any issue - WITHOUT being required to use BOTH languages.

Here is what s. 4 of the Official Languages Act states:

4. (1) English and French are the official languages of Parliament, and everyone has the right to use either of those languages in any debates and other proceedings of Parliament.

(emphasis added)

However, the Committee, the Commissioner of Official Languages and now the Court have ruled that a person’s right to use “either” official language when dealing with a parliamentary committee really means an obligation to use “both”, when it comes to written communication. So, "either" applies only to the spoken word, and not the written word. Written words must be in both official languages, despite what the Official Languages Act seems to so clearly say. The Court believes that this is consistent with the Official Languages Act and that, in any case, the Committee’s practice is protected by parliamentary privilege.

With respect, I believe that this is fundamentally wrong on both fronts.

In my view, this result is the absolute antithesis of bilingualism. I’m astounded that, in 2006, Parliament - which is our supreme federal institution - would seriously contend that “either” means “both” when it comes to official languages and that, in any case, it can rely on parliamentary privilege to get around the plain meaning of the Official Languages Act, which is quasi- constitutional legislation to which it has expressly bound itself. It’s a setback of several decades of struggle for language equality and access to their ruling institutions by individual Canadians. In my view, it’s contrary to the law and, above all, to common sense. Canadians in every province and of every political persuasion should be very concerned about this decision.

As to parliamentary privilege, there is a Supreme Court of Canada decision from last year very close on point penned by Justice Binnie called Vaid v. House of Commons, which held that the Speaker could not invoke privilege to get around human rights legislation. It seems to me that this should apply at least as much to the Official Languages Act, which is "quasi constitutional" legislation and which is explicitly applicable to Parliament.

In any case, by saying that “either” means “both”, and by denying my right to provide essential documents to a Parliamentary Committee in the only official language in which they were available, and allowing that Committee to remain ignorant of this essential information, this interpretation effectively says that “either” means “neither”.

HK

The Corruptibles

A partial antidote to Captain Copyright's propoganda can be found in the very clever EFF campaign against current excessive lobbying efforts and potential legislation in the USA. It's an online group of cartoons called The Corruptibles.


HK

The Supremes on Famous Trade-marks in Canada

The Supreme Court of Canada has issued two brilliant decisions today which dismissed two appeals that would have - if successful - taken “famous mark” protection in Canada to a level even beyond what the big Americans trade-mark owners have in their own country under the badge of what they call “anti-dilution”. Readers will recall that Victoria’s Secret lost a case in the US Supreme Court three years ago against an adult novelty store named Victor's Little Secret that sold “tawdry merchandise”.

One appeal involved the attempt by MATTEL - owner of the BARBIE trade-mark to stop a Montreal BBQ Restaurant from calling itself BARBIE’S. The other involved an attempt by the French high end champagne maker VEUVE-CLICQUOT to stop a Montreal clothing shop chain from calling itself CLIQUOT.

The judgments were released together and were both written by Justice Ian Binnie. Although they involved different facts and legal issues, there are certain obvious common elements - the most important being the ambit of protection to what are regarded as “famous” trade-marks. The Court has said that the ambit is not unlimited. BARBIE may cover dolls and maybe more but it doesn’t extend to restaurants and likewise CLIQUOT may cover champagne and maybe more but not women’s clothes.

The result in no surprise to Canadian intellectual property lawyers. However, Justice Binnie, in his characteristic manner, clearly and constructively sets straight decades of sometimes confusing and even apparently contradicting case and statutory law that has left practitioners and business people perplexed. Here is my quick take on the two very important rulings:

• The fact that a trade-mark is famous is a factor - but not by any means determinative - that there can be a likelihood of confusion or deprecation of good will
• there must be real evidence of a likelihood of confusion or deprecation of good will - not just speculation - and the absence of evidence of actual confusion is relevant and may even lead to an “adverse inference”. In other words, there’s got to be real evidence of a likelihood of confusion - and preferably of actual confusion - in order to succeed
• confusion is assessed in the mind of the “The Casual Consumer Somewhat in a Hurry” and such consumer is to be given “ a certain amount of credit” and not regarded as “completely devoid of intelligence or of normal powers of recollection or are totally unaware or uninformed as to what goes on around them.”
• the farther apart or more “remote” the wares and services in question are, the safer it will be for the less famous party
• And lest anyone forget, “Unlike other forms of intellectual property, the gravamen of trade-mark entitlement is actual use. By contrast, a Canadian inventor is entitled to his or her patent even if no commercial use of it is made. A playwright retains copyright even if the play remains unperformed. But in trade-marks the watchword is “use it or lose it”.

Justice Binnie has also provided a wonderful guide to trade-mark lawyers in terms of what they will need in evidence in future cases and on the use of surveys and how important it is to ask the right questions in these surveys.

HK