ASCAP ruling - effect on Canada?

Yesterday’s (April 25, 2007) decision of the District Court of the SDNY ("Southern District of New York"), which is probably the most experienced and reliable trial court in the USA for copyright matters, will send shivers or even shocks throughout the American music industry and may have interesting and potentially very significant ripple effects up here in Canada.

The Court held - in a summary judgment hearing - that ASCAP (one of the US big American cousins of SOCAN), could not collect money for downloads of music from the Internet.

Why not? Because this activity doesn't fit the wording of the statute - which is as follows in 17 U.S.C. §106(4):

“[T[he owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(Emphasis added)

In turn, to perform or display a work “publicly”means:

To perform or display a work “publicly” means —

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.


The Court looked carefully at the meaning of “perform”, “publicly”, etc. and the difference between the performance and reproduction rights. It noted that there theoretically could be an overlap but that the “sweeping construction” of the statute and the “overlap to the extent proposed by ASCAP in the present case” didn’t fit with the intention of the statute.

Some choice quotes:

Although we acknowledge that the term "perform" should be broadly construed, see United States v. Am. Society of Composers Authors & Publishers, 870 F. Supp. 1211,1218 (S.D.N.Y. 1995) (Conner, J.), we can conceive of no construction that extends it to the copying of a digital file from one computer to another in the absence of any perceptible rendition. Rather, the downloading of a music file is more accurately characterized as a method of reproducing that file. See 17 U.S.C. § 1 06( 1) ("(The owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ... (1) to reproduce the copyrighted work in copies or phonorecords .... ").
...

The statutory language itself, however, makes clear that the transmission of a performance, rather than just the transmission of data constituting a media file, is required in order to implicate the public performance right in a copyrighted work. See 17 U.S.C §101 ("To perform or display a work 'publicly' means ... to transmit or otherwise communicate a performance or display of the 'work . , . to the public, by means of any device or process .... ") (emphasis added); 17 U.S.C. § 101 ("To 'transmit' a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. ")

...

[W]e are not persuaded by ASCAP's argument that downloaded music files are indistinguishable from streamed performances because, after a certain amount of digital data has been transmitted to the client computer, the purchaser can begin listening to the transmitted portion of the music file. However, the mere fact that a customer's online purchase is conveyed to him in a piecemeal manner, each segment of which is capable of playback as soon as the transmission is completed, does not change the fact that the transaction is a data transmission rather than a musical performance broadcast.
...

Accordingly, we agree with the position set forth in the brief of the Recording Industry Association of America, Inc. ("RIAA") as amicus curiae, which contends that the delivery of a music file to a purchaser via a download constitutes a mechanical reproduction of the copyrighted work in the form of a "digital phonorecord delivery,m as set forth in 17 US.C. § 115(d).

Of course, US law is different than Canadian in this area where every detail matters and Canada went to some efforts to try to avoid the type of conclusion reached here. But was Canada successful?

I don’t know - but I do know that many of us now should be looking at this question yet again - and urgently.

The Copyright Board and the Canadian courts need to be very concerned about unwarranted overlapping and layering of rights, especially if the rights truly are not applicable. It is not in anyone's ultimate interest for this problem to proliferate.

One can assume that yesterday’s decision will be appealed. The Court and the Counsel involved were a substantial who’s who of US copyright law. So yesterday’s decision must be taken very seriously. Canadian SOCAN was sufficiently concerned that it filed an amicus brief, which is quite rare for a Canadian entity to do at an early stage - or indeed any stage - of an American IP case.

These decision should be of intense interest to those now involved in the Canadian Copyright Board’s Tariff 22 hearing, where SOCAN is seeking what ASCAP it has now been denied in the USA, and the judicial review of the Ring Tones decision.

Oddly enough, RIAA, as an amicus curiae, opposed ASCAP on this fundamental legal entitlement issue in the USA - i.e. whether ASCAP could claim an overlapping “performance” right when the issue was really one of reproduction. In Canada, CRIA appears not to be raising the “communication” point in Tariff 22 or to be challenging SOCAN on any substantive question of legal entitlement, but rather is engaged only in questioning the quantum and SOCAN's basis for its calculation.

HK
(revised May 8, 2007)

The Continuing CRIA Copyright Canard

There is another exchange underway between Michael Geist and CRIA's President Graham Henderson.

Personally, I’m not neutral. I always favour accuracy and sound legal analysis. On the issue of Canada’ comparative compliance with international law, the following point must be made:

• Henderson says that “In fact, Canada stands alone among its leading trading partners as having failed to meet its commitments under the World Intellectual Property Organization treaties.”

That is a recurrent CRIA canard that has been repeated too long and too often. The fact is that Canada has not breached any international legal obligations or commitments under these treaties for the simple reason that Canada has never ratified them. Nor has Canada made any binding legal commitment to ratify them. As I’ve said many times, signing a treaty is to ratification like dating is to marriage. The latter does not necessarily follow from the former.

Unless and until we do ratify these treaties, it’s time to stop talking about failing to meet non-existent “commitments”.

One point that both Michael and Graham both fail to mention in this exchange is that there is, indeed, one very conspicuous example of a G8 country that has seriously breached international legal copyright obligations, as adjudicated by the WTO and still flouts international copyright law by failing to pass legislation to protect the rights of composers and authors to be paid when their music is played, for example, in countless bars and restaurants.

That is the U.S.A. - which has been found by the WTO to have violated the WTO TRIPS agreement and its incorporated Berne Convention provisions. I’m quite sure that China is aware of the irony of the American’s position on copyright law.

As I said in this space on February 14, 2007:

The most flagrant adjudicated flouter of international copyright law is the USA. The WTO has long ago finally concluded that the USA fails to provide royalties for performing rights in many instances as a result of s. 110 of its Copyright Act. This is the most serious copyright dispute to date in the WTO and the USA is clearly unwilling or unable to do anything about coming into compliance. It has bought its way out of this violation with a paltry payment fixed by arbitration of about Euro 1,219,900 per year - a fraction of what the royalties ought to be.

HK

Fordham - 15th Annual Conference - some of the Canadian Content

The 15th Annual Fordham IP conference has just taken place in New York City, where pirate DVD’s are almost as easy to buy as in Beijing - according to Sir Hugh Laddie. It was a great event - and more to come.

For observers of Canada, here are my two papers.

The first was Online Music 2007, where I talked about Canadian developments dealing with online music and the elephant in the room called “private copying levies”. I also talk about the global situation and call for a drastic lowering of prices in order to achieve a far greater resulting increase in demand and consumption for paid and authorized downloads.

The second was called RECENT COPYRIGHT ACTIVITY AND INACTIVITY IN CANADA. I discuss the major case law and political events of the last year or so and some scenarios regarding the expected new bill. I also mention the Captain Copyright affair and how Access Copyright responded relatively quickly and well to criticism that was recognized as valid, unlike certain other associations that cannot admit they ever were or could be fallible - for example by suing 12 year old children.

Justice Roger Hughes of the Federal Court of Canada talked about extraterritoriality, and provided a paper for the materials entitled Jurisdiction of the State Respecting the Incorporeal by his law clerk, Ms. Caterina Chiocchio. Justice Hughes also spoke about the next ten years in patent law.


HK

Lies, Damned Lies and US Trade Policy

This AP story about China pointing to Canada could be amusing if there wasn't so much at stake.

Wang Ziqiang, a spokesman for the National Copyright Administration, argued other countries such as Canada have more serious piracy problems.

He cited a February report by the U.S.-based International Intellectual Property Alliance that put annual losses to piracy in Canada at $16.78 a person, while the figure for China was $1.68.

First, don't rule out the possibility that the USA put China up to this silly comparison. Stranger things happen in the world of trade and diplomacy. Also, it's quite clear that there is a huge "sky is falling in Canada" anti-piracy campaign underway in the lead up to the new copyright bill and other IP related efforts. The story suits China and the USA - both.

Nobody defends outright piracy in the true "counterfeiting" sense. But the industry is also happy to allow and even encourage confusion with the issue of parallel imports - which by definition are perfectly legit goods that come through a channel other than the Canadian exclusive distributor would prefer. Parallel imports are good for competition and good for consumers. Our Supreme Court is currently deliberating on a major case on this issue, in which I was involved on the pro competitive/consumer side.

Second, I'm surprised at the modesty of the numbers. According to the USA's Ambassador Wilkins as reported by Michael Geist, Canada is responsible for as much as $30 Billion a year in losses due to piracy.

That's almost $1,000 a year for every man, woman and child in Canada. That's a lot of fake Gucci purses, so-called "illegal" downloads, and phony brake pads. If this is true, it's utterly amazing that Canada still manages to exist as a viable nation. The number, of course, is pure conjecture and there is no credible basis for it.

As Sir Hugh Laddie pointed out in an electrifying panel of April 13, 2007 on the China complaint at the Fordham conference, the USA remains in clear and serious violation of international copyright law as adjudicated by the WTO and it is almost as easy to buy pirate DVDs on the streets of Manhattan as in Beijing. In fact, I understand that pirate DVDs have gone "underground" in New York only in sense of now being openly available in subway stations.

HK

CRIA and CMEC Train Wreck?

As Michael Geist first reported yesterday (the Hill Times paper edition comes out on Sunday), the Hill Times has a blurb today about at bill that would make CRIA, CMEC and the USA very happy - and will or should cause distress to just about every other current Canadian copyright stakeholder.

This sounds like exactly what I talked about last September 8, 2006.

Here, for your research purposes, is the brief Hill Times report, as provided by a third party:

Ottawa, April 16, 2007:

Copyright bill to be tabled before summer if no election: sources

The Conservative government is preparing to table its copyright reform bill if there is no election this spring, The Hill Times is hearing.

Sources say the bill will depart in two key ways from the last piece of legislation, tabled by the Liberal government in June 2005, which died on the Order Paper when Parliament dissolved for the 2006 election. Reflecting the policies of the Conservative government, the bill is expected to depart from the Liberal legislation by providing stronger legal protection for rights-management technologies (also known as technological protection measures, or copy and access controls); as well as an educational exception for classroom access to free web materials, addressing concerns raised by the Council of Ministers of Education, Canada. The bill has also undergone a large amount of technical fine-tuning, and although some issues remain unresolved, bureaucrats in Canadian Heritage and Industry Canada will be under pressure to get a bill before Parliament this spring if the government decides not to trigger an election. Some observers now consider it unlikely that, this spring, the Conservatives will try to engineer their defeat on a confidence vote in the House because, given the political environment, the party does not seem to have a clear opportunity to win a majority government. Copyright is considered one of the most divisive and lobbied areas of federal policymaking. The government is not expected to introduce a bill in advance of an election because there will be unhappy industry and public interest groups, creating unnecessary nuisances at a time when the government is trying to focus on campaigning.The previous bill proposed to implement two treaties of the World Intellectual Property Organization, which the former Liberal government signed in 1997. Action on implementing the treaties has come at a slow pace largely because industry groups are divided about how to proceed with amendments.—Simon Doyle

If the Bill lives up to the billing and gets passed as such, it will be a very bad development for Canada and quite possibly for Canada's New Government.

On the other hand, if the Bill is introduced but somehow doesn't move forward to committee before the next election, that would be a win/win for everyone - at least for a while. It might postpone and ultimately even provide sufficient time to stop what could be a very serious train wreck for all concerned....

Of course, Canada's New Government could also listen to the other stakeholders - who actually have some positive suggestions that would actually benefit major Canadian interests and not cause harm...and Canada's New Government should live up to its March 19, 2005 Policy Declaration...

Some of these other points would be very easy to draft - and would not cause any delay...

More to come....

HK

DRM becoming the "D" Word

I listened to the live stream of the Apple/EMI news conference this morning from London.

The good news:

• Apple will be providing the option of premium priced EMI material DRM free and at double the bit rate for higher quality - 256 kbps AAC encoding.
• Any tunes already bought from iTunes can be upgraded for USD $0.30.
• Steve Jobs hopes that other majors will soon follow suit.

The bad news:

• The bad news is that these premium singles will cost 30% more.

I don’t know how many times I heard Jobs and EMI Group CEO Eric Nicoli refer to “DRM Free” music. It seems that DRM is becoming the “D” word - even in the highest corporate musical circles.

Interestingly, Jobs himself kept repeating that DRMs can already be stripped form iTunes songs by making a CD copy - which lots of folks know. This is a “hassle” as he calls it - but not an insurmountable one. It will disappear now - but for a price.

Jobs also explicitly mentioned the SONY root kit episode as an example of how DRM doesn't work.

Nicoli conceded that file sharing might become easier now. The implication here is that any losses due to increased private copying due to file sharing will be more than capitalized into the purchase price of the download. It will, of course, be difficult to separate out what relative premium consumers notionally allocate to the two improvements - i.e. “DRM free”, and higher fidelity. It remains to be seen what the take up will be.

All of this goes against the suggestion by Sandy Pearlman and others of lowering the price to a nickel or some other attractive price point and thereby increasing unit quantity sold by a far greater factor than the lowering of the price - in other words far greater revenue for the record companies and artists. Remember, the marginal cost of delivering a tune online is or will be very close to zero. Many of the costs associated with traditional sales of vinyl and CDs have simply vanished - i.e. manufacturing, distribution, shipping, inventory, accounting, etc. Consumers have yet to see this dividend.

So greater revenues = greater profits. In direct proportion. It could be that simple.

It’s Economics 100 time.

At the right price point and with friendly online music stores, unauthorized downloading and file sharing would all but disappear - and all without the need for increasingly draconian, technologically harmful and interventionist copyright laws.

So - today’s announcement might be seen as the right move technologically but in the wrong direction on cost. Hopefully, the latter will get corrected before it’s too late.

And where are the Beatles? Both Jobs and Nicoli said they too wanted to know.

And therein lies much of the problem in the music industry today - at least to this old curmudgeon’s ears. We have nobody of the quality of the Beatles, Elvis, or Frank Sinatra - or even the Stones or early Michael Jackson - who can sell multi-platinum simply by virtue of compelling quality.

The majors are left with a few vaguely OK current “stars” that offer passing entertainment, lots of ambition, and “MUCH” mediocrity. And it does take a lot of marketing hype to convince lots of people to pay for this music. But there is not a lot of music that people really want to buy in great quantities just because it’s irresistibly great music that crosses over a vast range of categories.

There’s also the matter of intense competition with other new forms of entertainment, including video games, DVDs, etc., etc. that drain budgets very quickly.

One thing ought to be clear, if anything. Suing customers into submission mostly certainly isn’t the answer. It’ll be interesting to see if EMI achieves enlightenment on that front.

HK

CBC, serious music and copyright - the connection

I have sent the following open letter to the Heritage Committee. The connection to copyright is real - though not obvious. The Heritage Committee has subscribed to the partly correct - but only somewhat so - view that stronger copyright law will produce greater cultural achievement. In terms of serious or "elite" culture, that is almost never the case. Subsidies or direct funding - whether from Kings, philanthropists, or taxpayers have almost always carried the day.

The destruction underway at CBC to serious new music programming coupled with SOCAN's lack of interest or ability to adequately deal with "concert music" has created a real problem for serious composers in Canada. SOCAN at least is relatively transparent. The NRCC and all of its money and its treatment of serious performers remain a major mystery.

All the more reason why the current CBC management must be held accountable for the damage they are doing....

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

March 19, 2007

Hon. Gary Schellenberger, Chair
Hon. Members
Canadian Heritage Committee

Dear Honourable Members:

As a listener to CBC for more than 50 years, I am saddened and angered by the destruction underway of the excellence we once knew as Radio Two.

Current management at CBC radio is no longer interested in reaching an audience older than 50. Please remember, however, that those of us over 50 still pay lots of taxes and have lots of votes.

CBC management clearly believes that any programming that could possibly be considered to be elitist or erudite must be eliminated. Of course, the irony here is that the headlong rush to increase ratings by embracing mediocrity will only result in renewed efforts to disband the CBC - because the CBC could so come to so resemble the private sector that there will arguably then be no need to keep it - or to give it a billion dollars a year in subsidies. At the rate things are going, it will only be a question of time until it is handed over to the private sector - likely with disastrous financial consequences for the taxpayer. Is that the agenda? One hopes not. Canada without a CBC committed to excellence would be a much poorer country in which to live.

CBC management seems to have lost sight of the CBC's obligation under the Broadcasting Act to provide programming that "informs, enlightens and entertains". It seems that the entertainment factor is all that matters now. The CBC was never under any obligation to gain audience share by sacrificing quality. Indeed, quite the contrary.

The cancellation of the Two New Hours program - which had been on the air on Sunday night at 10 o'clock for almost thirty years - is a particularly regrettable example of the damage now being done. In its way, this show was to serious new music what Hockey Night in Canada is to our national sport. This show not only encouraged and sustained much of the activity in serious concert music in Canada. It figured prominently in making Canadian serious composers and performers known throughout the world. Its host and producer are world renowned artists in their own right. It set technical and artistic standards of excellence and built a core community that made Canada proud and raised the bar of musical achievement and heritage.

Now, it is gone. By dissipating the Two New Hours team and its very loyal interactive community of listeners and eliminating that locus and focus every Sunday night at ten, CBC management has done much harm. When bureaucrats with little or no background in either broadcasting or the arts are given control of a 70 year old legacy, it seems they must make their mark by destroying it. I hope they will be held accountable beginning with the Heritage Committee hearings underway this week.

Howard Knopf
1200 - 427 Laurier Ave. W.
Ottawa, Canada
613-238-8173

Vancouver 2010 - let the litigation begin!

Attention advertisers, and artists of all kinds but especially documentarians, photographers, etc....

Get ready not to "use" such words as "Vancouver" and "2010" in the same context unless you want to be sued by the rich, aggressive and historically ultra-litigious Canadian Olympic machine.....

Bill C-47 would be the most fundamental alteration to Canadian trade-mark law in over 50 years - and all for one special interest group that happens to have a lot of tax payer funding behind it...

The concept of a special Olympic bill isn't bad per se and this one could be worse but still needs a lot - and I mean a LOT - of work in Committee...

Some of it's flaws are explained in Jennifer Ditchburn's CP story, which quotes your's truly....

And yes - it relates to copyright. Because many of the protected marks are also capable of copyright protection and you can be sure that the painful absence of a satire and parody exception in Canadian copyright law will be exploited by the Olympic lawyers without humour and without hesitation.

HK

From the Boiler Room to Spamalot to SOCAN's Proposed Internet Tariff 22

Michael Geist and Paul Kedfosky note that the SEC has suspended trading in 35 companies that use spam to tout stocks, an astonishing eight of which "were either headquartered in Canada, or had offices there."

I suppose that there is some perverse comfort in confirming the predictability of certain phenomenon:

• Bad corporate behaviour emanating from or with a real and substantial connection to Canada often gets prosecuted not in Canada or not first in Canada but in the USA.
  
• Before there ever was the internet or e-mail, there were stock market "boiler rooms" that touted stocks over the phone and across borders.
  

Canada's Supreme Court long ago held that a boiler room operator who arranged his affairs across several jurisdictions and was bilking Americans from the Toronto telephone sales solicitation room could indeed be prosecuted here in Canada. The case of Libman v. The Queen, [1985] 2 S.C.R. 178 is one of the seminal "real and substantial link" judgments.

And what, you might ask, does this have to do with copyright? The Libman case is is proving to have a real and substantial effect on Canadian copyright law as seen in the SOCAN v. CAIP decision from 2004 - which will no doubt loom large in the renewed round of SOCAN's eternal quest to achieve and enforce "Tariff 22", coming once again to the Copyright Board next month,.

HK

WIPO & Kyoto - Signature v. Ratification

Further to John Ibbitson's March 7, 2007 column in the Globe and Mail, Michael has a good post today on the difference between signature and ratification.

In addition to the example given by Michael and quite possibly the most egregious example in the current climate, as it were, of a treaty signature not being followed up by ratification, consider that of the USA and the Kyoto Protocol.

As of July 10, 2006, the USA is listed as having signed Kyoto in 1998 - but has not ratified it.

Here's what Wikipedia has to say:

The United States (U.S.), although a signatory to the Kyoto Protocol, has neither ratified nor withdrawn from the Protocol. The signature alone is symbolic, as the Kyoto Protocol is non-binding on the United States unless ratified. The United States was, as of 2005, the largest single emitter of carbon dioxide from the burning of fossil fuels.^[42]. China is projected to take over at the top of the table by 2030.^[43]

Although the USA has apparently thought about and looked into how it might go about the unusual if not unprecedented step of legally withdrawing its signature from Kyoto, it appears that it has not done so to date.

To continue with a metaphor that both Michael and I have used, folks who live in glass greenhouses ought to be careful about throwing stones.

It is wrong both in fact and law and seriously misleading for anyone to suggest that Canada has any international legal obligation to ratify the 1996 WIPO treaties. Canada may choose to do so but is not required to do so. Period.

HK

Canadian Copyright, Kyoto, Cacaphony, Conflation and Confusion

I have never seen as much pressure, spin, and propaganda on Canadian copyright as I have in the last few months - climaxing in today’s story by John Ibbitson in the Globe and Mail comparing Canadian copyright policy to the Canadian Kyoto imbroglio. He says:

With each failure, American frustrations will grow, along with pressure for linkages -- taking action in other trade areas to punish Canada for failing to pass a new copyright act. What should matter to all of us, though, is Canada's reputation before the world. If the best we can do on this, as on so many other files, is shrug and say, "Sorry, the federal government is too unstable for us to act," what does that say? When did Canada become Italy?

The American music and movie industries are getting hysterical about counterfeiting - while there is no credible evidence that there is any more availability of counterfeit products in Canada than anywhere else. In fact, if what you really want is a fantastic selection of cheap fake Rolex watches or Louis Vuitton handbags, go to New York and just shop till you drop on Canal Street or even right on Fifth Avenue where the street vendors have very good deals on whatever you may wish - just don’t ask for a receipt or a warranty. And don’t ask for the Americans to drop their hypocrisy on this issue.

I can only conclude that there is a very deliberate and highly organized attempt to confuse and conflate counterfeiting and piracy on the one hand with legitimate grey market goods, user and artist friendly fair dealing exceptions and freedom from oppressive DRM and TPMs on the other hand. Credulous journalists and politicians are the targets.

Of course, nobody supports counterfeiting. But broadly attacking it with unnecessarily potent weapons and without proven targets or surgical precision is rather like an aimless war on terrorism and dubiously existing weapons of mass destruction - or in this case weapons of mass distribution. The result will be predictably messy, counterproductive and highly controversial. It could even breed its own insurgency.

The American government and the lobbyists who are pushing it to push Canada wish to preserve business models that no longer work in the digital age. They are seeking to strengthen old copyright laws designed for $25 high margin albums and DVD movies - when the world has moved on to the Internet, Google, iTunes, YouTube and beyond. The Canadian independent music industry understands the difference - and has cut its ties to the four foreign majors on these issues.

Canada meets or exceeds its international legal obligations. Canada has not ratified the 1996 WIPO treaties and is under no obligation to do so. Signing a treaty is like dating. Ratifying is like marriage. We’ve gone on a date with the WIPO treaties. That’s all. Some have urged that we do more. But many observers would seriously question whether it was even a good date or a bad one.

The American copyright industries want an all or nothing ratification approach along the lines of the dreaded American DMCA legislation - an approach taken so far only by the USA and Japan amongst major G8 members. Europe has not ratified these treaties - and the controversies there are growing rather than waning.

The thought of Canada being on the US “priority watch list” falls somewhere between a joke and an honour, as I’ve stated before. The US entertainment industry and the American Government are going straight to the top in Canada over this issue. But Ibbitson correctly points out that this isn’t the same as softwood.

Indeed, in important ways and in the long term, it may be even more serious than softwood. What this is about is political and cultural sovereignty. What’s good for General Motors may once have been good for the USA - and what’s good for the American entertainment industry may indeed still be good for America but has usually not been good for Canada. We simply don’t need a Department of Canadian Heritage if we don’t have any Canadian heritage. Canada needs copyright sovereignty as badly as it needs sovereignty in our Arctic, our army or in our health care system. Let’s hope Canada’s new government takes all the time it needs to get this right - for Canada.

HK

French IP Developments in English

A bright young man named Nicolas Jondet has launched a promising website to keep English speaking readers up to date on on recent developments in French Law, focusing on Intellectual Property, Technology and Medical Law.

He is a PhD candidate and research assistant with the AHRC Research Centre in Intellectual Property and Technology Law at the University of Edinburgh (UK). Here is his SSRN Profile

HK

IIPA and USTR and s. 301

A few quick points about the latest fulsome report from the IIPA:

1. The IIPA is a lobby group - basically run by a Washington law firm that lobbies the USTR on these matters. It represents big content owners in the USA. It has a lot of clout in the USTR but it is definitely not the USTR.
2. Nobody takes the s. 301 process very seriously. Canada's "long tenure" on this list is - if anything - a badge of honour that we not only spell the word "honour" differently than the IIPA would prefer - but we are a sovereign country that does not always ask how high the IIPA and USTR would like us to jump.
3. The IIPA report is, as usual, over the top. It relies on doubtful data such as that of BSA.
   
4. Another example: the Report misstates what Canada's Supreme Court said in SOCAN v CAIP. The Court said - by way of obiter dicta only - that "notice and take down" would be more "effective" in dealing with online infringement than litigation based on the doctrine of "authorization" - which is clearly true. That, however, does not warrant the IIPA saying that the Supreme Court "recommended" "notice and take down."
5. The most flagrant adjudicated flouter of international copyright law is the USA. The WTO has long ago finally concluded that the USA fails to provide royalties for performing rights in many instances as a result of s. 110 of its Copyright Act. This is the most serious copyright dispute to date in the WTO and the USA is clearly unwilling or unable to do anything about coming into compliance. It has bought its way out of this violation with a paltry payment fixed by arbitration of about Euro 1,219,900 per year - a fraction of what the royalties ought to be.
   
6. Except for certain limited recourse available to visual artists, the USA does not provide moral rights and cleverly exempted moral rights from the dispute settlement mechanism in TRIPs. The USA does not believe in moral rights, which are a touchstone of copyright for most countries that really do respect the essence of what copyright law should be about - which is protecting artists and users, and not manipulating and monopolizing markets.
   
7. Countries that live in glass houses....

Michael also has a good take on this entitled "In Good Company".

HK

"Statistically Indistinguishable From Zero"

Oberholzer and Strumpf - the 2007 version of their landmark paper is updated and published in the very prestigious juried Journal of Political Economy from the University of Chicago. My comments will follow at some point. Here's the abstract. **************************** The Effect of File Sharing on Record Sales: An Empirical Analysis
FELIX OBERHOLZER-GEE Harvard University Business School KOLEMAN S. STRUMPF University of Kansas - School of Business Journal of Political Economy, Vol. 115, pp. 1-42, February 2007 Abstract: For industries ranging from software to pharmaceuticals and entertainment, there is an intense debate about the appropriate level of protection for intellectual property. The Internet provides a natural crucible to assess the implications of reduced protection because it drastically lowers the cost of copying information. In this paper, we analyze whether file sharing has reduced the legal sales of music. While this question is receiving considerable attention in academia, industry, and Congress, we are the first to study the phenomenon employing data on actual downloads of music files. We match an extensive sample of downloads to U.S. sales data for a large number of albums. To establish causality, we instrument for downloads using data on international school holidays. Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period. (emphasis added) And here's a link to the pre-publication version. ******************************** Thanks to Jon Newton for pointing out this publication. HK

Campaigning about Camcording

The Canadian Motion Picture Distributors Association (“CMPDA”) is the trade association for Hollywood in Canada. It’s the movie counterpart to the Canadian Recording Industry Association (“CRIA”), sometimes referred to as the Canadian Recording Industry of America.

However, the CMPDA has normally been much more restrained and responsible than CRIA in its lobbying and in its descriptions of alleged inadequacies in Canadian law. And needless to say, it has not tried to make its customers into victims of mass litigation. This mirrors the situation down south, where the RIAA carries on its war against weapons of mass distribution, while the MPAA sits back wisely watching and now looks almost magisterial by comparison - especially in the aftermath of Jack (VCR = Boston Strangler) Valenti.

But now the CMPDA has launched a massive campaign about what it sees as a need to attack “camcording” in cinemas in Canada. So far so good. Nobody would seriously defend anyone’s right to camcord a whole movie in a theatre for piratical purposes - even if the harm might be somewhat overstated and the remedy sought may be somewhat overwrought. I’ll get back to that in a moment.

But unless my ears fooled me this morning when I heard the CBC news, the problem is that CMPDA is now seriously conflating this issue with the 1996 WIPO treaties and Canada’s general lack of progress, as CMPDA sees it, in copyright reform. Mr. Frith of the CMPDA suggested that Canada is somehow behind the rest of the world, WIPO-wise.

First of all, nothing in the WIPO treaties (if either applied, it would be the WIPO Copyright Treaty "WCT") has anything to do with camcording in theatres. Camcording in theatres is already illegal. Nothing in the treaties would make it more illegal. If we decide to enact a tougher and carefully conceived anti-camcording law, fine. But it would have no more to do with the WIPO treaties than a fish has to do with a bicycle.

True, the WIPO treaties deal with “making available” and communication of works such as films on the internet. But that’s got nothing to do with camcording in a cinema. And it’s highly likely that Canadian law is already more than adequate in terms of meeting the WIPO treaty requirements in these respects.

And once again, it must be pointed out that the EU is still far from ratifying the WIPO treaties. The only major countries that have ratified the WIPO treaties are the USA and Japan. (Belgium, if one considers it “major”, is said to have gotten ahead of the EU and engaged in “mistaken” premature ratification). The rest are a coalition of the billing ranging from Albania to the United Arab Emirates, virtually all of which are somehow beholden to the USA.

It does not behove the CMPDA to embark on the over-the-top rhetoric we have come to expect routinely from CRIA.

Back to camcording. If better legislation is needed, which may indeed be the case, there’s definitely a need to avoid poorly conceived legislation that might make it illegal to merely carry a recording device into a theatre, since it’s unrealistic to criminalize people for carrying cell phones and video cameras when they go the cinema. And bear in mind that virtually all cell phones can now record video and it's getting harder and harder to tell the difference between video and still cameras, which are increasingly converging technologically.

And after all, if you take the kids to the park and record them on video and then go to the movies, are you supposed to leave your expensive camcorder in the car so that it can easily get stolen? Maybe Canadian law can be improved in this area - albeit with great care. Amending the Criminal Code, which is what CMPDA wants, is not a simple thing. Nor should it be. There are real issues involving deployment of scarce police resources when we have rampant violent crimes involving guns, drugs and other obvious criminal activity. There are serious policy issues about the border between true criminal behaviour and the use of the state to enforce what may in some cases be purely or arguably a civil matter.

HK

The Ecstasy of Influence - A Plagiarism

Here is a very well written and researched detailed essay on copyright, '"open source" culture', borrowing, stealing, love and theft, Jefferson, Disney, Girl Guides, RIAA litigation against twelve year old children and much more in the current Harper's by Jonathan Lethem.

HK

A Victory for an RIAA Victim

One of the 20,000 or so victims of the RIAA war against its members' best customers has just succeeded in getting an order for attorney's fees.

This is unusual in the USA and will be an important precedent - unless the RIAA successfully appeals.

More detail here from Jon Newton.

Bravo to her attorney, Marilyn Barringer-Thomson of Oklahoma City, Oklahoma and to Ray Beckerman for his role in defending various victims and maintaining a great blog all about the war here.


HK

Praise the Lord and Kickoff the Litigation

What could possibly be more important in the U.S. of A. than the Super Bowl and religion?

You guessed it.

Respect for copyright.

Copyright law, it seems, trumps God and gridiron.

So - the NFL has told Fall Creek Baptist Church in Indianapolis that its plans for a Super Bowl watch party in front a big screen TV would be illegal. This, and several other churches in Indiana have canceled plans for communal viewing of the Super Bowl this Sunday.

The NFL forbids such violations of creators’ rights, even where there is no charge for admission. All I can say is that America must be proud to know that mass piracy, theft and flagrant disrespect of creators’ rights are being blocked before they infect the inner sanctums of Indiana churches on Super Bowl Sunday, probably the most sacred day of the year in the USA.

It's one thing to love football, religion, thy neighbor and one's home team. But respect for copyright must always come first.

HK

WIPO Broadcasting Treaty - Update January 19, 2006

The current "non-meeting" is over.

There will be another meeting around June 18-22, 2007. There is supposed to be documentation ready and circulated no later than May 1, 2007 in preparation for that meeting.

If there is no consensus on a signal based approach in the June meeting, there will be no diplomatic conference later this year. But for a variety of reasons and complex politics, that doesn't mean that this initiative will then necessarily die.

In spite of the fact that there is been little progress on this in 9 years, and the Chairman and the WIPO Secretariat do not appear to be hearing many things they do not wish to hear, including the strong message that only a signal based approach will fly, the "non-papers" still focus on exclusive rights - which is where the money is, particularly in retransmission.

Here's a couple of terrific blogs to provide more detail:

Jamie Love, with his superb communication skills, has probably done more than anyone to expose the problems of this proposed treaty. He writes about it in the widely read Huffington Post.

The EFF provides a detailed analysis and narrative of what happened and didn't happen in the last three days.

This initiative has tremendous potential for danger to the progress of new technology, the future of the public domain, and the imposition of new costs and controls on consumer behaviour.

To the extent that the broadcasters have a case - and they do in some respects and in some countries - they may wish to consider a far less overreaching approach.

Now that some formidable corporate and NGO opposition has lined up and been energized, the momentum for this treaty has apparently been lost.

HK

A WIPO "Non-meeting"?

There were a bunch of "non-papers" delivered by the Chairman that either were done at the very last minute or presumably could have been sent out ahead of time.

Apparently, there was a "non-slide" presentation about the objectives of the proposed treaty.

And some "non-conclusions."

Manon Ress has the latest.

According to her:

The chair did not want "too many to speak" but had to let India make its statement. Asking for clarification, India describe how the list of matters did not reflect agreement and was just a list of matters that have been discussed for years. According to the mandate, only matters where agreement was reached should be listed.

The plenary ended on that note. People here are puzzled. If you only point to agreement (on or off the record it seems), the non-conclusions might end up very very short. Would that mean that this meeting did not really happen? Like a non-meeting?

HK

WIPO Broadcasting Treaty - Update January 18, 2006

Here's a key part of the Chairman's "non-paper" proposal today for a supposed signal based non-exclusive rights based approach:


SCCR/15/2: Article 9, 11 and 14

Rights in the Broadcast

Broadcasting organizations shall enjoy the exclusive right of authorizing:

i) the simultaneous or deferred retransmission of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks; and

ii) the fixation of their broadcasts.


SCCR/15/2: Articles 10, 12, 13 and 15

Protection of Uses Following Broadcasting

Broadcasting organizations shall enjoy adequate and effective legal protection in respect of
i) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts;
ii) the making available to the public of the original and copies of fixations of their broadcasts;
(iii) the making available to the public of their broadcasts from fixations, by wire or wireless means, in such a way that members of the public may access them from a place and a time individually chosen by them; and

iv) the communiation to the public of their broadcsts, if such communication is made in places accessible to the public against payment of an entrance fee, or using very large screens in places accessible to the public, or made in a profit making purpose.

If it looks, smells and walks like exclusive copyright rights, then maybe that's what it is.

More from Manon Ress here.

HK

The Sky Isn't Falling

10% Growth in Overall Music Sales; Digital Track Sales Exceed 120% Growth

TORONTO--(BUSINESS WIRE)--Nielsen SoundScan Canada, the entertainment industry's data information system that tracks point-of-purchase sales of recorded music product and Nielsen BDS, the music industry’s leading music performance monitoring service, have announced their 2006 Canadian year-end sales and airplay monitoring data, for the 52-week period January 2, 2006 through December 31, 2006.

OVERALL MUSIC SALES (01/02/06 – 12/31/06) (ALBUMS,SINGLES, MUSIC VIDEO, DIGITAL TRACKS – IN MILLIONS)
UNITS SOLD	2006	2005	% Chg.
	64.1	58.4	9.8%

...

More details here.

There are a lot of businesses that would love to see those numbers - and they aren't whining, and wining and dining Ministers, MPs, and senior officials for extra strong interventionist windfall monopoly rights.

The digital track sales are particularly impressive.

Hat tip to Jon Newton.

HK

Copyright and Canadian Politics 2007

Kady O'Malley has a rousing and provocative leading piece on copyright and Canadian politics in Macleans.ca quoting BoingBoing's famous author/blogger/co-founder Cory Doctorow and myself and referring to Michael Geist's work.

The catchline says it all:

The copyright lobby that claimed credit for taking down a Liberal MP sets its sights on the Heritage Minister

She reminds readers of the story of Sam Bulte's defeat and suggests that there are lessons to be learned for those in power today.

Ms. O'Malley has just moved on from the influential but niche circulation Hill Times, where she did great work for years on copyright and the Ottawa lobbying machine behind it.

She will now have a much larger audience. She also does a lot of TV work.

And speaking of large audiences, Cory Doctorow has over 2,000,000 unique readers each month and he is all over the copyright issue. Many of his readers are bloggers themselves.

Here's Cory's take on the current copyright situation in Canada.

HK

WIPO Broadcasting Treaty - Update Janaury 17, 2006

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is holding its First Special Session from January 17 to 19, 2007.

The first day apparently was filled with the sounds of silence as delegates from many countries and NGO's gathered in Geneva. Little happened. The Chair - Mr. Liedes - finally handed out some documents.

According to William New of IP-Watch:

Liedes doled out his non-papers sparingly during the day only when it was clear member governments were not going to proffer their own, he said. “There is no master plan … no mandate on what to do,” Liedes said afterward. He said he decided to put forward “something that reflects my understanding” of positions.

It's not clear why delegates are convening in Geneva to be handed brief documents that could presumably have seen sent out earlier by e-mail. Delegations need time to analyze and need instructions.

IP-Watch has a detailed report on today's events, including the text of the documents.

It's worth recalling that the monumental Berne Convention went from being a glint in someone's eye to fruition in three years from 1883 to 1886 when the telegraph was high technology and steam ships were still fairly new technology. This current effort concerning a broadcasting treaty has been going in earnest since about 2000 and traces back even further - about 8 or 9 years.

There's a lesson to be learned here. But I'm not quite sure yet what it is.

HK

What to look for in 2007 in Canadian Copyright

Here are some big copyright issues to track in 2007 - roughly in the chronological order in which I believe they will unfold.


1. Kraft v. Euro Excellence - on January 16, 2007 the Supreme Court of Canada will begin its Winter 2007 session by hearing the appeal in this very important case about copyright and parallel imports. I’m involved in this case as counsel for an intervener, Retail Council of Canada - so I won’t say anything more for the time being. Here’s the Supreme Court’s summary of the case. For those in Ottawa who wish to attend, the hearing will begin at 9:30 AM. Public seating is limited.

2. The WIPO Standing Committee on Copyright and Related Rights (SCCR) will hold its First Special Session from January 17 to 19, 2007 in Geneva on the proposed WIPO Broadcasting Treaty. This has been a lengthy effort that has included many previous meetings, all aimed at establishing a treaty that could give broadcasters and cablecasters, such as speciality channels CNN and A&E, sweeping copyright-like exclusive rights in their transmissions - above and beyond the underlying content. Webcasters tried unsuccessfully to climb onboard. It was - and remains - a very complex and arguably far too encompassing and unpredictable solution to what is arguably a very narrow problem largely concerning the “piracy” of live signals of sporting events, etc. in some smaller countries. Broadcasters, for their part, want an exclusive retransmission right - which would enable them to collect considerable revenue from retransmitters, such as cable and satellite companies. In its recent iterations, many have been concerned that the treaty as contemplated could also effectively elongate protection of underlying content virtually forever - even public domain content. And, increasingly, broadcasters’, cablecasters and copyright owners are converging and are one and the same. Now that some big business interests have finally realized some of the potential problems with the treaty, the USA has pulled its support for the wide exclusive rights based approach. It is possible that a much narrower signal based approach could be adopted. If that doesn’t happen, the treaty initiative is likely to fizzle - though possibly slowly. A diplomatic conference is tentatively scheduled for Nov. 19 - Dec. 7, 2007

3. On January 29, 2007, Canada’s Parliament will resume sitting. Talk of an election is in the air. Ministers Bernier and Oda are still in place. The dynamics of a minority government are hard to predict on an issue such as copyright, which obviously is not the sort of issue that would likely defeat a government, but is nonetheless a live grenade that can cause a lot of damage if mishandled, as Sam Bulte well knows. Rumours are that a bill will be introduced soon. Whether the Government will try and in turn succeed in pushing it through the minority minefield before an election remains to be seen.

4. The Copyright Board will hear two very important new cases.

a. One involves the resumption on April 17, 2007 of SOCAN’s still ongoing attempt to collect money for use of of music on the internet. This has been going on since 1995 and has already been to the Supreme Court of Canada once. There are still a number of unresolved legal issues and the internet is a very different place that it was in 1995. Overall questions will involve how many times and to how many collectives and how much must Canadians pay for the same thing - including Canadians who don’t use or consume music on or from the internet in any way at all? More later for sure.

b. The other main hearing will start on June 12, 2007. It is Access Copyright’s attempt to impose a $12 per year fee on every kid in K-12 in Canada. This will be opposed by CMEC, even though that organization shares similar views on many copyright matters with Access Copyright. A big question to watch is the extent to which the 2004 Supreme Court of Canada decision in CCH v. LSUC that empowers a users’ right to engage in research and otherwise opens the horizons of fair dealing will be utilized by CMEC, which has so far shown no cognizance of it in its flagship publication, Copyright Matters!

5. Speaking of Access Copyright, the current round of post secondary Access Copyright licenses expires this year. It’s interesting timing, considering what is happening at the Board on the K-12 front. Let’s see if the AUCC will try to use the CCH v. LSUC decision to significantly reduce the amounts payable and to use the savings to better purposes, such as putting more books in libraries and increasing the amount of information available to Canadian teachers, researchers and students, rather paying more and more times over for less material and less access. Let's see whether CAUT does anything.

6. There is a vacancy at the Copyright Board. The appointment process has changed in at least one way. The vacancy was advertised on the Board’s web site.

7. The Board will at some point rehear the controversial commercial radio tariff, as the result of the Federal Court of Appeal’s ruling sought and obtained by the CAB. But will the Board set the rates even higher than it did before the judicial review? This appears to be a possibility.

8. The Federal Court of Appeal will hear a judicial review application on the ring tones tariff. It appears that the remaining objectors may have may finally figured out that they shouldn’t have conceded that there was a “communication” involved, which I argued strongly early on until my client withdrew from the hearing. It will be interesting to see if the remaining objectors can now raise the issue for the first time in this matter in the Federal Court of Appeal, and what the potential impact of this line of argument could be on other files.


These are some of the things I see on the foreseeable horizon in Canada. But if I’ve learned one thing since law school, it’s to expect the unexpected.

HK

Public Domain Registry? McLean delivers another instalment...

Almost a year ago, Access Copyright ("AC") announced - with great fanfare and some acclaim - a public domain registry project.

Some notable people and organizations were involved, especially Creative Commons ("CC") - both in the USA and Canada. I always wondered what was in this partnership for the CC organizations, since AC has no obvious particular expertise or comprehensive database of death dates to contribute to this effort. AC does have oodles of money - but I don't know why a Wiki-based project would need to cost a lot of money. CC would appear to have much more to contribute than AC. On the other hand, the halo effect of a partnership with Larry Lessig, CC, etc. for Access Copyright was quite obvious. Anyway, I and others have waited to see what might materialize. So far, I'm not aware of any more specifics or publicly announced deliverables, or even a timetable. I'm confident that the project was conceived in good faith and with much enthusiasm, and would serve a useful purpose if it ever materializes. But so far, it appears to remain at the announcement stage...

On the other hand, the redoutable Wallace McLean continues with his third annual edition of Public Domain Day 2007 - with a list of some notable (Billy Bishop, H.L. Mencken, etc.) and many forgotten creators whose work became part of Canada's proud public domain on January 1, 2007 and some material on US PD issues. And some good, trenchant commentary. Wallace doesn't have grants, committees, partnerships, or anything of the sort. What he lacks in resources, he makes up with resourcefulness and enthusiasm.

HK

Vive la France

There's an interesting decision reported on in the IHT picked up on Michael's BNA bulletin today.

It's always dangerous to rely on newspaper reports of legal cases, especially from France - but this is a reputable reporter with the very reputable IHT and it's great to have good news at this time of year.

It seems that a P2P infringement enforcement effort was blocked because the rights holder illegally breached French privacy laws to get the victim's identity by going behind the user's IP address.

This - apparantely - is a major "non, non" en France, which has tough EU directed privacy laws.

Moreover, a French government lawyer is suggesting that the rights owners could be liable for big trouble:

"The rights-holders should now understand that they cannot set up a system to identify downloaders on the Internet without proper authorization from us," said Moulin, whose organization has the ability to grant such permission. "It is important to have these protections established by a court."

Invasion of privacy carries fines of up to €300,000, or $395,000, and five years in prison, Moulin added.

Mais, oui! C'est déja vu all over again, encore une fois. This all sounds sweetly familiar. First, Canada, then the Netherlands and now France are standing up for privacy rights in these attempted invasion situations and Courts are backing up the rights of individuals not to have their privacy rights fundamentally breached without adequate evidence and sufficient oversight in the pursuit of penalizing common place activity that may actually be benefiting record companies.

When this happened in Canada in 2004 in the BMG case, in which I was very involved, Judge von Finckenstein was severely and wrongly criticized and Canada was labelled a "digital Sunni Triangle" by a reporter with the appropriately fitting surname of Bray at the Boston Globe.

It is seems now that Canada is in increasingly refined and enlightened company - and history may applaud us for leading the way.

HK

No copyright bill this year...

Today was the Ides of December. There was no copyright bill.

The House of Commons is now in recess until January 29, 2007.

So, there won't be a bill this year.

Doubtless, a lot of scenarios are being considered and reconsidered by all concerned.

HK

Canadian Documentarians on Copyright

The Documentary Organization of Canada, ("DOC") which speaks for hundreds of Canadian documentarians, issued a package in anticipation of a copyright bill before Christmas. Here is their public letter to the Ministers. There is a background white paper (by your's truly) that discusses legal issues, particularly the problems of the "clearance culture" and makes several specific recommendations. There is also a survey of DOC members on their experiences with copyright and the clearance culture.

Here's the DOC press release.

Here's the Globe and Mail story.

HK

Gowers Day

The Gowers Review is available here.

I haven't gone through it yet - but these recommendations seem interesting...

Flexibility
Recommendation 8: Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers.

Recommendation 9: Allow private copying for research to cover all forms of content. This relates to the copying, not the distribution, of media.

Recommendation 10a: Amend s.42 of the CDPA by 2008 to permit libraries to copy the master copy of all classes of work in permanent collection for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear.

Recommendation 10b: Enable libraries to format shift archival copies by 2008 to ensure records do not become obsolete.

Recommendation 11: Propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test.

Recommendation 12: Create an exception to copyright for the purpose of caricature, parody or pastiche by 2008.

Recommendation 13: Propose a provision for orphan works to the European Commission, amending Directive 2001/29/EC.

Recommendation 14a: The Patent Office should issue clear guidance on the parameters of a ‘reasonable

Recommendation 14b: The Patent Office should establish a voluntary register of copyright; either on its own, or through partnerships with database holders, by 2008.
Recommendation

15: Make it easier for users to file notice of complaints procedures relating to Digital Rights Management tools by providing an accessible web interface on the Patent Office website by 2008.

Recommendation 16: DTI should investigate the possibility of providing consumer guidance on DRM systems through a labelling convention without imposing unnecessary regulatory burdens.

Recommendation 17: Maintain policy of not extending patent rights beyond their present limits within the areas of software, business methods and genes.
search’ for orphan works, in consultation with rights holders, collecting societies, rights owners and archives, when an orphan works exception comes into being.


One thing caught my eye straight off. The limited private copying exception - despite the lack of an immediate levy requirement - is not as generous or simple as it seems, since it is only prospective. See Section 4.72. The theory seems to be that rights owners will factor the economic value of private copying into their products in the future, but can't do so for the past. The Report suggests that collecting societies pick up the pieces from the past. There has never been levy in the UK. It's not immediately apparent how this could work. Will there be some kind of levy for the legacy works? The main recommendation would seem to explicitly suggest not. So how are the collecting societies supposed to collect? What effect will the current levy review in the EU have on all of this?

Questions indeed.



HK

DMCA Exemptions

The U.S. Register of Copyrights has just issued some useful exemptions to the DMCA - as she has limited power to do.

More - much more - is here and here. AP has a good explanation of all of this.

The first exemption is quite interesting for Canada:

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

That would appear to correspond with what US law is in the non-digital context by reason of their general fair use doctrine.

This is the kind of thing that CMEC and the educators should be striving for in Canada - namely clarification or provision - but only where really necessary - of activities to be treated as examples of fair dealing in Canada. This is something achievable - especially when the USA treats is educators so much better than does Canada.

Instead, our educators have passively accepted the disaster of C-32 and are now going too far to the other extreme with their proposal for a sweeping special exception for educational use of the internet, which manages to be both unnecessary in some respects and excessively vague and overreaching in others. This has managed to alienate a lot of diverse interests and will no doubt distract from what are likely to be the real battles in the next bill, including staving off DMCA North. It could also badly distract from the more reasonable and achievable goals that the educators should be pursuing.

Another interesting one is this:

6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.

Did anyone say "SONY Rootkit?"

HK

PARLIAMENTARY COMMITTEES AND COPYRIGHT

I am somehow assuming, though not conceding, that the Government is going to ignore, for the moment, my call for a special judicial copyright commission - though I am pleased that Michael Geist has already effectively endorsed it:

Instead of hurriedly introducing a bill that will leave everyone unhappy, the Conservatives would do far better to launch a consultation or commission (as Howard Knopf suggested this week) on copyright.

I am also somehow assuming that the Government is going to keep to Mme Oda’s word by tabling a bill very soon that will be very controversial and that the controversies will be very complex, as they usually are in copyright matters.

If there is a copyright bill, and if it gets as far as committee hearings, it is imperative that it be considered by a balanced committee that represents the mandate of both of the sponsoring departments. The Heritage Committee alone cannot be entrusted alone with this task. Even with Mme Bulte gone, the institutional structure militates against both actual and apparent balance in the hands of that Committee alone. Even before Bulte, that Committee often gave the appearance of imbalance and of being too prone to influence by the Department of Canadian Heritage and the usual lobbying suspects. Indeed, the appearance probably reflected the reality. Clifford Lincoln may have appeared more balanced than Mme Bulte, but the result too often left much to be desired.

The effective low point of copyright committee proceedings was back in the C-32 days in 1996-1997. The Bill that went into committee was a bad one - especially for the educators and broadcasters. But at least there were a few exceptions for users. When it came out of committee, it had exceptions to the exceptions that vitiated the exceptions. It was a dark day for users. And the process was not pretty.

There are two structural improvements that would go a long way to ensuring both the appearance and reality of balanced and transparent committee hearings. They are cumulative and not alternative.

1. There should be a “special joint committee” that brings together all or at least the most knowledgeable and interested members of the Heritage and Industry committees. This would mirror the joint responsibility of the two Ministers and Departments. Such a Committee would have joint chairs. There is ample precedent for this approach.

2. There must be two or even three outside expert counsel to advise the Committee. Bill C-32 had only one outside counsel. For many reasons, the resulting product was a disaster for users. Likewise with the so-called "Bulte Report" in 2004. Fortunately, the Bulte Report had no immediate legal effect, though we may well see its influence infecting the forthcoming bill. In fairness to the counsel involved, we will never know for sure what transpired behind the scenes and whether the results were more because of or in spite of their work. This is simply too much responsibility to put on one person’s shoulders, given the polarization of policy views on copyright and even of expert opinions on legal copyright matters. For example, there is a great cacophony of divergent “expert” opinion on whether downloading P2P music files to a PC hard drive is legal. Another example is whether CCH v. LSUC protects, as fair dealing, much of the activity in the educational system that currently results in passive, massive and arguably greatly excessive payments of millions a year to Access Copyright and much of the internet related activity that CMEC is lobbying about. Whatever Committee considers this bill should have access to frank discussion of the range of opinions. That can only come from hearing all sides - not only from witnesses but from its own expert counsel.

Frankly, I cannot think of any one person who is sufficiently knowledgeable, balanced, experienced, expert in both the common law and “droit d’auteur” perspectives, and who would generally be perceived to be both actually and apparently sufficiently neutral and independent to do the job of committee counsel on their own.

It is no answer for the Government or Parliament to say that it will cost too much to have two or three counsel. How does the Department of Canadian Heritage justify 20 FTEs (full time employees) more or less to work on copyright policy? I suspect that this is probably more than any other government anywhere - and certainly far more than Industry Canada. Presumably, Heritage got the FTEs because copyright is important and because, as many believe, “copyright matters.” Well, if copyright matters, then the money will somehow be found and find its way into the right budget. There’s a huge surplus out there, and it just got bigger with the recent cuts.

What is needed amongst the suggested two and preferably three special committee counsel is a real and perceived balance between common and civil law approaches, and between creators’, owners’, and users’ rights and interests. That is why there ideally should be three people. There should be one person who would have the confidence of creators, owners and collectives on the one hand and another who would have the confidence of users. We would likely need a third person to sit in the middle to facilitate communication and consensus. That person might be a sufficiently experienced, knowledgeable and neutral academic, or, if such a person could not be found, perhaps a retired judge with some good IP decisions under his or her belt. The committee counsel must have the experience and stature to be able to provide frank advice and guidance to committee members, and not simply serve as a passive research or drafting resource. Any relevant client or consulting interests regarding policy matters should be fully disclosed, not only to the committee but to the public.

It will not be easy to implement these suggestions. There are a lot of vested interests who would love to replay Bill C-32 and go back to the Heritage Committee (and not a joint committee) and see it with only one outside expert counsel, as in 1996-1997. But we cannot allow that to happen.

I have not forgotten about the official languages problem. That’s another issue and it may require a ruling from the Federal Court of Appeal and maybe even the Supreme Court of Canada. I’m working on that. However, whatever committee handles the copyright bill can temporarily solve the problem by agreeing, as many committees do, to accept written material in either official language and not demanding it in both - but unfortunately this has not been the practice of the Heritage Committee under the previous government. This is a real issue for less well financed interest groups (i.e. most user groups) who cannot afford the cost of translating essential documentation, which in many cases will exceed the cost of preparing or collecting it - even assuming there is time, which there invariably is not. Although this is a huge legal and political problem, it is not a structural one. It is simply a question of the committee following what many more expert than myself in official languages believe to be the law of Canada. As I’ve said before and will have to say again, “either” means “one or the other.” It does not mean “both”.

BOTTOM LINE

If there is to be a bill, we must have the best possible committee structure with the best and most balanced advice available.

We must take the time to get this right. Currently, there are two lobby groups dominating and pushing the agenda. The one that appears to be in the most desperate hurry is CRIA, which has little or no connection with Canadian interests. The other most vociferous demandeur is CMEC, whose approach to copyright matters as reflected in Copyright Matters! is similar to that of Access Copyright as reflected in Captain Copyright, concerning which comparison Michael essentially agrees with me. Ironically, CRIA and CanCopy (the former name for Access Copyright) were the two big winners in Bill C-32.

With all of these difficulties ahead, and the very real likelihood that the bill as expected cannot get through any committee process - fair and balanced or otherwise - before the next election, my judicial copyright commission project begins to look better and better.

Even if there is a majority government after the next election, it may well wish to take the decisive step of calling for and properly constituting a judicially led commission. The current governance model of delegating arguably far too much law making power to the Copyright Board and leaving the ongoing development to be sorted out between two competing departments is not only far from ideal. In too many ways, it isn’t even working.

Perhaps an independent and fully transparent judicial commission can come up with a better way. How should this be set up? We’ll go into that another day.

Ministers may wish to take note.

HK

CMEC & Quebec

It seems that some prominent Quebec publisher spokespersons are opposed to the CMEC special exception for educational use of the internet. There is a very interesting op-ed in Le Devoir today.

So - the CMEC proposal is getting attacked from various sides on the basis of various strongly held points of view.

The politics here could be fascinating, The Bloq Québecois has always been maximalist on copyright. But, if the Bloq decides, for whatever reason, to block a bill containing this kind of provision, that could be real trouble for such a bill.

Could this be one point on which maximalists and users' advocates agree - even if for very different reasons? Two familiar and similar clichés come to mind. The first is that politics makes stange bedfellows. The other is that the enemy of one's enemy can be one's friend.

Could this be the start of a real and open debate that is long overdue? I've been advocating a judicial copyright commission for some time to provide independent and informed guidance on what's best for Canada and to hear all interested parties in the open.

HK

Time out for a commission on the future of Canadian copyright?

I have an op-ed in today's Hill Times - which is an influential weekly publication for those who work on, in or around Parliament Hill in Ottawa.

Bottom line:

Some key aspects of the copyright system and revision process are becoming dysfunctional in Canada. This country has had three excellent commissions over the last eight decades that looked at copyright law with a view to Canada's best interest. Two of these were led by judges. We are long overdue for another such commission, and we have judges who could lead it. That would be productive for the country and would be the best policy and political solution at this time for this government.

HK

Better never than late?

I thought I had traveled back in time - but it's today's story.

One of the band members of Procol Harum is claiming that he is a co-author of "Whiter Shade of Pale", a terrific and obviously very lucrative song from 1967 - notable for its Baroque and Bach inspired elements.

There's apparently a trial underway.

Now, this song was released almost 40 years. That's a long time - one might have though an excessively long time.

So - it will be very interesting to see how the Court treats the limitation period issue and how this got as far as trial in the first place. The alleged infringement was hardly hidden away.

Apparently, the Judge is musically inclined.

According to the Bloomberg story:

An electric organ has been set up in the court room for Fisher to play as part of his evidence. Justice Blackburne, who said he was "of an age to be familiar'' with the song and the Summer of Love, asked for the organ to be left on while the court room was out of use to allow him to play the sheet music submitted as evidence in the case.

HK

Constitutional Challenge to RIAA's statutory damage claims...

From the brave and bold Ray Beckerman - who fights the RIAA:

In UMG v. Lindor, Judge Trager has granted Ms. Lindor's motion to add a defense based on the unconstitutionality of the $750-per-song damages sought by plaintiffs. He rejected the RIAA's arguments that the defense was without merit, that the motion was untimely, that the amendment would prejudice the RIAA, or that Ms. Lindor was required to send a notice to the United States Department of Justice of her defense of unconstitutionality.

Judge Trager ruled:

[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered.....Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered. Aff. of Morlan Ty Rogers, ("Rogers Aff.", [pars.]5, 6. See also Aff. of Aram Sinnreich, ("Sinnreich Aff."), [par.] 2, 3 (attesting that popular music sound recording downloads and consumer license to use same are lawfully obtainable to the public at 99 cents per song, and of that 99 cents, roughly 70 cents per song is paid by the retailer to the record label). As FRCP Rule 12(b)(6) requires that this figure be taken as true for purposes of the motion, Lindor has alleged a factual basis supporting her affirmative defense."

This is potentially hugely important. If Ray wins on this issue (RIAA would almost certainly try to get it to the US Supreme Court if he does), it would be, without a doubt, one of the most important copyright cases in modern times...because it would take away the ad terrorem aspect of copyright law from ordinary citizens and the big copyright owners would have to do what normal litigants have to do, which is to prove actual damages. As Ray argues and the Judge notes, "plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered."

BTW, a lot of the problems in Canadian copyright law would go away if statutory damages were limited to purely commercial situations and could not be used to intimidate teachers, librarians, researchers, scholars, students and countless ordinary citizens who behave in ordinary ways.

At the time they were enacted in Canada in 1997, only Canada and the USA amongst major countries had the broad concept of statutory damages (i.e. minimum of $500 and $750 per work respectively).

Even in the USA, statutory damages are not available where the activity was done by an educational institution, library, archvive, public broadcaster or employee thereof "in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use". The details are available here.

Now, THAT is something that educators should be fighting for here in Canada. Why should Canada treat its educational user community so much worse than the Americans do? And why should our educators so passively accept this? But it seems that CMEC and others in the educational community are, rather, obsessed with their special educational exception for use of the Internet. There are so many more useful, less harmful and more achievable goals that the educators etc. could be pursuing....and curtailment of statutory damages ought to be at the top of the list.

BTW, Michael now essentially agrees with me on how CMEC's views are not much different than those of Access Copyright in key respects. Here's his podcast of a recent talk.

HK