A professor at Stanford who took on the highly litigious James Joyce estate has been awarded $240,000 in costs. She had some very high powered legal help.
It is reported that Stephen Joyce, an heir "told one performer, who had simply memorized a portion of Finnegans Wake for an onstage presentation, that he had probably "already infringed" on the estate's copyright".
Here's the story.
HK
Tuesday, September 29, 2009
Friday, September 25, 2009
A Real Debate on Copyright
Those interested in a real debate on copyright may wish to attend the Canadian Constitution Foundation ("CCF") Conference October 2-4, 2009 in Toronto. I'll be debating Richard Owens Stikeman Elliot LLP, Toronto.
There will be no "duet" or "un-debate", as in the current Woodrow Wilson road show on copyright.
This is the third annual CCF conference. CCF is a a conservative and influential foundation based in Calgary that encourages serious and high level debate on some very controversial topics that involve "Protecting the constitutional freedoms of Canadians", and participates in some very interesting litigation projects.
Other topics in the conference include:
I understand that there are very few spaces left.
Here's where you can register.
HK
There will be no "duet" or "un-debate", as in the current Woodrow Wilson road show on copyright.
This is the third annual CCF conference. CCF is a a conservative and influential foundation based in Calgary that encourages serious and high level debate on some very controversial topics that involve "Protecting the constitutional freedoms of Canadians", and participates in some very interesting litigation projects.
Other topics in the conference include:
- Is there a human right to be free from offence?
- The legal status of polygamy
- Racial equality, aboriginal rights, and Section 15: examining R. v. Kapp
- The place of religion in the public square
I understand that there are very few spaces left.
Here's where you can register.
HK
How to Search Canada's Copyright Consultation Database
The Canadian Coalition for Electronic Rights has done what the Government of Canada and Nick Nanos have, for whatever reason, not done.
It has provided us with a search engine for the submissions that really works!
And it works better and easier than Google's advanced search.
And even more features are on the way.
Now all we need are the missing hundreds (maybe thousands?) of submissions.
Bravo, CCER!
HK
It has provided us with a search engine for the submissions that really works!
And it works better and easier than Google's advanced search.
And even more features are on the way.
Now all we need are the missing hundreds (maybe thousands?) of submissions.
Bravo, CCER!
HK
Thursday, September 24, 2009
Where Have the Submissions Gone?
Michael has a post about the missing submissions in the consultation process.
Mine is not up. Can't search for it because the search tool is not and never has been been functional.
Even my free little blog has a functional search tool.
So - Nick Nanos - or whoever - whassup?
Assuming the submissions eventually appear, can we please let them be fully searchable?
HK
Mine is not up. Can't search for it because the search tool is not and never has been been functional.
Even my free little blog has a functional search tool.
So - Nick Nanos - or whoever - whassup?
Assuming the submissions eventually appear, can we please let them be fully searchable?
HK
The Great Copyright Un-Debate Goes on Tour
I wrote an op-ed in the Hill Times of September 21, 2009 about the great Sookman/Schwartz so- called “debate” that will take place tomorrow September 25, 2009 in Toronto under the auspices of the Canada Institute of the Woodrow Wilson International Centre.I also earlier blogged about this in shorter form here.
Interestingly, this “un-debate”, if I may so call it, will be repeated in Washington on October 14, 2009. The only difference will be that the moderator will not be the Canadian Prof. Giuseppina D’Agostino of Osgoode Hall Law School.
Instead, the undoubtedly sympathetic local moderator in Washington will be Stephen Tepp of the US Copyright Office, who has always seemed very supportive of US content industries at conferences I have attended.
As for the Woodrow Wilson folks, perhaps they ought to be saying as they say in Tennessee, “Fool me once, shame on you; fool me twice, shame on me.” Or as memorably explained by a living former President:
Woodrow Wilson is likely turning over in his grave about his name being invoked in the name of an un-debate - indeed a likely duet - about copyright. He would not have avoided debating a seriously controversial issue.
If the Toronto and Washington events are great successes, perhaps the dynamic duo of Messrs. Sookman and Schwartz could tour other world capitals under the Woodrow Wilson aegis and continue their so-called “debate” about contemporary copyright issues.
Here's the Washington invitation:
The Canada Institute of the Woodrow Wilson International Center for Scholars and The Canada Institute on North American Issues invite you to a panel discussion on Copyright Law in Canada and the United States: The Digital Challenge the eleventh issue in the Canada Institute’s One Issue, Two Voices series featuring Eric J. Schwartz Partner, Mitchell Silberberg & Knupp LLP, Washington D.C., and former Acting General Counsel, U.S. Copyright Office Barry Sookman Partner and Co-chair, Technology Law Group, McCarthy Tétrault LLP, Toronto and Steven M. Tepp (moderator) Senior Counsel for Policy and International Affairs, U.S. Copyright Office Wednesday, October 14, 2009 Woodrow Wilson Center, 5th Floor Conference Room 9:00–11:00 a.m. Drawing on expertise from both sides of the Canada–U.S. border, the One Issue, Two Voices series is designed to stimulate dialogue on policy issues that have a significant impact on the bilateral relationship. This publication is a primer on current issues in copyright law in Canada and the United States focusing on the transformative changes underway in the copyright regimes in both countries. Copyright reform has become an increasingly controversial topic in both Canada and the United States. Copyright laws, compliance, and enforcement vary significantly between our two countries. Canada has faced considerable scrutiny from its major trading partners, particularly the United States, for failing to align its copyright regime with international norms. Panelists Barry Sookman and Eric Schwartz will discuss the critical challenges and issues posed by the new digital technologies and debate the controversial approaches to copyright reform that will help enable economic progress, technological innovation, and encourage investment in their respective countries. Seating is limited. RSVP to Canada@WilsonCenter.org.
HK
Sunday, September 20, 2009
Twenty Years and Counting
2009 happens to be the twentieth anniversary year of two copyright institutions.
The Nigerian Copyright Commission recently celebrated its twentieth anniversary. The celebrations featured a visit from WIPO DG Francis Gurry.
It turns out the copyright discussions in Nigeria are even more dramatic than in Canada. Here is a report about all of the intrigue and plans for a week long hunger strike and a "No Music Day" to coincide with the public celebrations of the Commission's 29th anniversary and to wage war on piracy.
I doubt that there will be anything quite so intense in Canada to mark our Copyright Board's 20th anniversary or the current round of copyright consultations and possible revision. Even the recent Toronto town hall meeting, reportedly packed and stacked by the music industry, was apparently more restrained than recent events as reported in Nigeria.
Canada's Copyright Board also has now been existence for 20 years, since February 1, 1989. It is an institution with full time members and staff that has oversight of almost half a billion dollars worth of annual tariffs. It is the successor to the Copyright Appeal Board, which traces back to 1936 and which functioned for 63 years without any full time staff or members. Times have changed. Here's a snapshot of the Board in 2008 prepared by me for the Law Society of Upper Canada.
HK
The Nigerian Copyright Commission recently celebrated its twentieth anniversary. The celebrations featured a visit from WIPO DG Francis Gurry.
It turns out the copyright discussions in Nigeria are even more dramatic than in Canada. Here is a report about all of the intrigue and plans for a week long hunger strike and a "No Music Day" to coincide with the public celebrations of the Commission's 29th anniversary and to wage war on piracy.
I doubt that there will be anything quite so intense in Canada to mark our Copyright Board's 20th anniversary or the current round of copyright consultations and possible revision. Even the recent Toronto town hall meeting, reportedly packed and stacked by the music industry, was apparently more restrained than recent events as reported in Nigeria.
Canada's Copyright Board also has now been existence for 20 years, since February 1, 1989. It is an institution with full time members and staff that has oversight of almost half a billion dollars worth of annual tariffs. It is the successor to the Copyright Appeal Board, which traces back to 1936 and which functioned for 63 years without any full time staff or members. Times have changed. Here's a snapshot of the Board in 2008 prepared by me for the Law Society of Upper Canada.
HK
Wednesday, September 16, 2009
When is a Sound Recording Not a Sound Recording?
Earlier this year I posted about the NRCC's attempt to get a tariff on the use of sound recordings as embodied in the soundtracks of movies and as performed in theatres and on TV. See here and here:
It will be recalled that the Copyright Act defines “sound recording” as:
"sound recording" means a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work;The definition of “cinematographic work” is this:
(Emphasis added)
"cinematographic work" includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack.Sections 15, 17, 18 and 19 are also pertinent.
The Copyright Board has just issued its decision on a threshold legal question as to whether NRCC (the neighbouring rights collective - of which there is no counterpart in the USA) is entitled to seek a tariff related to:
the performance in public or theThe NRCC made a rather strained argument heavily dependent on foreign and mostly Australian case law that, despite the clear wording of the statute and the legislative history, it is entitled to a tariff for the above uses.
communication to the public by
telecommunication, in Canada, of published
sound recordings embodying musical works and
performers’ performances of such works.
Today, the Board came to the predicable and correct conclusion along the lines I had suggested in my earlier blogs. It ruled against the NRCC. I believe that the Board got this right and did so decisively, if not particularly quickly. The tariff was published on May 31, 2008 and the hearing on this issue took place on May 7, 2009. Here's the Board's well written and well reasoned decision.
I have little doubt, however, that the NRCC will seek judicial review. This time, unlike the "iPod levy” case where the Board wanted to proceed with a tariff hearing in spite of the clear wording of the statute and a previous Federal Court of Appeal decision on the same issue, I believe that the Board will be upheld in any judicial review.
It is useful for the Board to dispose of as many threshold questions as possible to avoid unnecessary hearings, since Board hearings are so expensive and stretch out over such a long time. It is good to see that the Board is prepared, when appropriate, to decline to proceed with a proposed tariff that clearly cannot be legally justified.
HK
"Claire de Loon"
My good friend Jeremy has a great blog here on copyright in performances and compositions by or involving animals.
Complete with a performance of "Fur Elise".
Roll over Beethoven.
Original HT to Warwick Rothnie.
I'm waiting for a new arrangement and performance of Debussy's "Claire de Loon."
That could be the ultimate example of an "extraordinary rendition."
HK
Monday, September 14, 2009
The Proceeds of Canada's Blank Media Levy
Here's some interesting data backed up by the new Savethelevy Website and confirmed on the BNN interview with David Basskin and myself last week here.
We have had blank media levies in Canada for almost ten years. The first tariff was imposed on December 18, 1999.
In that time, CPCC (the levy collective) proudly claims that:
Anyone who knows anything about the music industry will know that most rights holders will earn less than that amount and a few will earn a great deal more. The ones earning a lot more won't need it. And those earning the average $160 a year or less won't be quitting their day jobs anytime soon to “continue their careers” in the music business as a result of this levy.
Moreover, since the figure of 97,000 "right holders" presumably includes publishers and record companies that could receive very substantial payments, the payout to individual songwriters, composers and recording artists is probably a whole lot less than $160 a year on average. That's less than about half of the cost of pint of beer a week at typical Canadian pub. Hardly an amount that will sustain a career.
So who has benefited? About $22 million has gone to the costs of pursuing Copyright Board tariffs (lawyers, consultants, surveys, etc.), collection and enforcement (e.g. lawyers and auditors), and other causes such as “communications and government relations - $1,272,000." And that's only to the end of 2007. See CPCC's own numbers here.
The CPCC's days are now numbered because its only real source of revenue is from the levy on blank CDs. When is that last time most people bought any of those? They are rapidly going the way of the floppy disc. So - the CPCC needs a new source of levy money and has now been turned down twice by the Federal Court of Appeal in its attempt to levy iPods and similar devices because the current legislation doesn't apply to digital audio recorders.
While it's hard to see how this levy could have been much of an incentive to most of the musicians who have seen a piece of it, it's not hard to see where the real incentive lies. No doubt there is a great incentive for those who work for the CPCC as as lawyers, consultants, employees, lobbyists and others to try to get the Copyright Act amended so as to keep the levy alive by extending its reach to iPods, cell phones, and beyond.
HK
PS - this is getting picked up here and here.
We have had blank media levies in Canada for almost ten years. The first tariff was imposed on December 18, 1999.
In that time, CPCC (the levy collective) proudly claims that:
Since then, more than $150 million has been paid to songwriters, composers, recording artists and other rights holders for the copying of their music. This money has been received by over 97,000 rights holders, most of whom would not be able to continue their careers without this revenue.That's less than $1,600 over ten years or an average of less than $160 a year for each of these rights holders, "most of whom" would supposedly "not be able to continue their careers without this revenue.”
Anyone who knows anything about the music industry will know that most rights holders will earn less than that amount and a few will earn a great deal more. The ones earning a lot more won't need it. And those earning the average $160 a year or less won't be quitting their day jobs anytime soon to “continue their careers” in the music business as a result of this levy.
Moreover, since the figure of 97,000 "right holders" presumably includes publishers and record companies that could receive very substantial payments, the payout to individual songwriters, composers and recording artists is probably a whole lot less than $160 a year on average. That's less than about half of the cost of pint of beer a week at typical Canadian pub. Hardly an amount that will sustain a career.
So who has benefited? About $22 million has gone to the costs of pursuing Copyright Board tariffs (lawyers, consultants, surveys, etc.), collection and enforcement (e.g. lawyers and auditors), and other causes such as “communications and government relations - $1,272,000." And that's only to the end of 2007. See CPCC's own numbers here.
The CPCC's days are now numbered because its only real source of revenue is from the levy on blank CDs. When is that last time most people bought any of those? They are rapidly going the way of the floppy disc. So - the CPCC needs a new source of levy money and has now been turned down twice by the Federal Court of Appeal in its attempt to levy iPods and similar devices because the current legislation doesn't apply to digital audio recorders.
While it's hard to see how this levy could have been much of an incentive to most of the musicians who have seen a piece of it, it's not hard to see where the real incentive lies. No doubt there is a great incentive for those who work for the CPCC as as lawyers, consultants, employees, lobbyists and others to try to get the Copyright Act amended so as to keep the levy alive by extending its reach to iPods, cell phones, and beyond.
HK
PS - this is getting picked up here and here.
An Agenda for Posterity: Copyright and the Collective Canadian Past
The redoubtable Wallace McLean has posted here his erudite and meticulously documented brief for the Copyright Consultation process. Note the remarkable charts that show how active Canada has actually been in copyright revision over the years.
He states:
HK
He states:
Contrary to popular myth, or, more to the point, the myth promulgated by proponents of ever-stronger copyright, the Canadian copyright regime is not archaic, antiquated, or out of date. It is true that the current Copyright Act traces its origin to 19211 (not, as is sometimes claimed, the 19th century.) However, the Copyright Act is also one of the most frequently amended pieces of federal legislation. The ink was barely dry on the 1921 act before it was amended2, and there have been forty other amendments to Canadian copyright laws in the decades since — one amendment approximately every two years.(Footnotes omitted)
By far the majority of these amendments have been in recent decades (seven in the 1980s, eleven in the 1990s, seven in the 2000s). In fact, between 1981 and 2005 inclusive, Canadian copyright laws were amended on an average once every eleven months. And not only has the pace of amendments steadily increased in recent decades, the scope of the amendments (as measured by the number of provisions amended, added, or repealed) has increased even more dramatically, as the following figures show.3
HK
Friday, September 11, 2009
World Economic Forum - Canada Beats US, Japan & UK on IP
From the prestigious World Economic Forum Global Competitiveness Report for 2009-2010, a report that ranks Canada #18 on IP Protection, ahead of USA, Japan and UK. See p. 360:
1.02 Intellectual property protection
How would you rate intellectual property protection, including anti-counterfeiting measures, in your country? (1 = very weak; 7 = verystrong) | 2008–2009 weighted average
RANK COUNTRY/ECONOMY SCORE MEAN: 3.8
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15 United Arab Emirates.........5.6
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Woodrow Wilson Canadian © Event: Dialogue, Debate, or Duet?
The Canada Institute of the Woodrow Wilson International Center for Scholars, The Canada Institute on North American Issues, and the CIBC are hosting in Toronto on September 25, 2009 a "dialogue on policy issues that have a significant impact on the bilateral relationship" under the banner "Copyright Law in Canada and the United States: The Digital Challenge". The announcement promises that there will be "debate."The two speakers will be Canadian Barry Sookman and American Eric Schwartz.
It's not without irony that this event is part of what is called the "Two Voices series." I expect that this will be more of a duet in unison or close harmony than a dialogue and certainly far from a debate.
Barry and Eric are both quite accomplished representatives of similar clientele and are in many ways counterparts of each other in the Canadian and American contexts. Barry is a registered lobbyist for CRIA and CMPDA, the Canadian trade associations respectively representing US recording and film industry interests and the respective counterparts of the American RIAA and MPAA. Eric was Vice President and Special Counsel, International Intellectual Property Alliance (IIPA) from 1997-2006. The IIPA is an influential Washington coalition of trade associations, including the RIAA and MPAA. The IIPA, Eric's firm and his partner, Steve Metalitz, have been quite active in the "301" process.
This could have been an opportunity for a real debate. But I rather suspect that the only possible debate will be over the extent of the hyperbole about how Canada's copyright laws are supposedly inadequate and why Canada supposedly deserves its position of prominence on the USTR's "301" list.
It is truly disappointing that such a prestigious public policy organization would allow itself to appear as a podium for such a clearly unbalanced event as this one promises to be. I should say that I pointed out this lack of balance to a key organizer of the event several months ago, but clearly to no avail. The presence of an academic “moderator” does nothing in this instance to instill balance when there is none.
Woodrow Wilson was a great President of the USA from 1913 to 1921 and great intellectual in his own right. He presided as President during WWI and, according to Wikipedia, "supported a Democratic Congress to pass the Federal Reserve Act,[2] Federal Trade Commission, the Clayton Antitrust Act, the Federal Farm Loan Act and America's first-ever federal progressive income tax in the Revenue Act of 1913." Not bad, as far as legacies go.
However, the Wikipedia article goes on to note that "In a move that garnered a backlash from civil rights groups, and is still criticized today, Wilson supported imposing segregation in many federally-funded agencies,[3][4] which involved firing black workers from numerous posts.[5]"
Wilson was obviously a man who was not afraid of a good debate, for example the one that led to the Treaty of Versailles. Too bad that the same cannot be said in this instance of his namesake organization.
People from Toronto or nearby may wish to attend and to ask provocative questions in the hope of sparking at least some debate.
HK
Thursday, September 10, 2009
US Copyright Offfice is Opposing Google Books Settlement
The Google Books Settlement ("GBS") is being opposed by the US Register of Copyrights, Marybeth Peters. This is very significant. Here's the story.
And here.
And in the NY Times here.
And here's today's testimony from Hon. Marybeth Peters and other notables, including David Drummond, Google's Chief Legal Officerl.
Update: You can also see the video via this link.
HK
And here.
And in the NY Times here.
And here's today's testimony from Hon. Marybeth Peters and other notables, including David Drummond, Google's Chief Legal Officerl.
Update: You can also see the video via this link.
HK
Wednesday, September 09, 2009
Another Attempt at an “iPod Tax”?
David Basskin, a director of the CPCC, and I, in my personal capacity, debated here on BNN at 5:20 PM today the CPCC's proposed "iPod tax", as it is commonly called and as BNN labelled the segment. As the BNN folks pointed out, it would apply to cell phones and other digital devices that store music.
I made several points - but these are the big ones.
HK
PS:
PS - this is getting picked up here and here.
I made several points - but these are the big ones.
- This would be seen as a "tax" and a bail out of a dying collective.
- It would create a huge grey market problem, since these products are so readily available through cross border visits and online. There is and will be no such levy in the USA.
- It would greatly hinder if not prevent WIPO ratification because the national treatment provisions in the WPPT treaty would double whatever amount the levy would otherwise be - and no Minister would want to take responsibility for shipping potentially hundreds of millions of Canadian "tax" - oops - I should say "levy" - dollars out of Canada for no good reason.
- The Canadian Recording Industry Assocation ("CRIA") has fought against an iPod levy in the Federal Court of Appeal because it would effectively allow for virtually unlimited legalized downloading. CRIA's President, Graham Henderson, is also on record as encouraging format shifting from purchased CDs to iPod type devices. In fact, Graham said in a speech in 2005 that "The idea that virtually everything that is on iPods is stolen is not true. Music fans, like me, in enormous numbers, are converting their CD libraries into a digital library."
- There is little evidence of any thought or an evidentiary basis for this. In fact, when the CPCC first tried this iPod levy on for size in 2002, it asked for $21 per gigabyte - which would mean that a 120 gig iPod Classic that now sells for less than $300 would have a $2,520 levy on it, if the CPCC had gotten its wish.
- The levy concept is an obsolete continental European socialist collectivist analog thing that has been rejected in the USA, UK and Australian and other like minded countries.
HK
PS:
PS - this is getting picked up here and here.
Monday, September 07, 2009
Third IP Cross-Retaliation Strike Against USA at WTO
For the third time, a successful complainant against the USA at the WTO has won the right to cross-retaliate by limited suspension of intellectual property obligations.
This time, it's Brazil and the dispute involved cotton. Before, it was Ecuador and bananas and then Antigua and internet gambling. Here's the full story and an anlaysis from the must read IP Watch site.
In this case, Brazil claims that "“the value [of the award] is significant, being the second-largest amount ever authorised in the history of the WTO.” However, the USA "was “pleased that the arbitrators awarded Brazil far below the amount of countermeasures it asked for” and “grateful that the arbitrators denied Brazil’s request for unlimited ability to suspend concessions on intellectual property or services.”
HK
This time, it's Brazil and the dispute involved cotton. Before, it was Ecuador and bananas and then Antigua and internet gambling. Here's the full story and an anlaysis from the must read IP Watch site.
In this case, Brazil claims that "“the value [of the award] is significant, being the second-largest amount ever authorised in the history of the WTO.” However, the USA "was “pleased that the arbitrators awarded Brazil far below the amount of countermeasures it asked for” and “grateful that the arbitrators denied Brazil’s request for unlimited ability to suspend concessions on intellectual property or services.”
HK
Wednesday, September 02, 2009
Copyright Consultation in the Peterborough Pasture
Yesterday, I attended the last scheduled Round Table of the 2009 summer Canadian Coypright Consultations. It was held at the Royal Canadian Legion Hall in Peterborough, Ontario. This was presumably the “pasture” to which Minister Clement referred. I did manage to find it with my GPS.
First, the good news. It was very ably chaired by Dean Del Mastro, who is the MP from Peterborough, and the Parliamentary Secretary to Minister of Canadian Heritage James Moore and a member of the Heritage Committee. Nicole Frenette, Drew Olsen, Tanya Peatt from Canadian Heritage and other officials were also present.
Mr. Del Mastro was very well prepared and very skillful and diplomatic in his moderation. And, indeed, the speakers were very well balanced. There were reps from the library, ISP, telco, museum, artist management (for some very well known Canadian music stars), fine arts, converged media, photography, First Nations, etc. communities. I didn’t get all the names, but the transcript will be out in a couple of days.
The discussion was civilized but quite lively. Everyone got a chance to say what they wanted to say. Mr. Del Mastro had some very good questions.
Indeed, he put me on the spot by suggesting that some would find that my remarks (posted here) reflected “non-starter” positions and would even question whether these positions are consistent with the WIPO treaties. I was naturally astonished that anyone would have found my quite reasonable suggestion of six ways to simplify and expedite Canadian copyright revision and WIPO ratification to be a “non-starter”, but in these days where an AF of M spokesman finds Charlie Angus’ quest for “balanced” copyright to be “disgusting”, I suppose that nothing should surprise me. I assured Mr. Del Mastro that these positions were not only restrained but WIPO compliant. And that less controversial stakeholders than me have taken similar positions, especially on circumvention and flexible fair dealing. Indeed, on format shifting, it seems that even the RIAA and CRIA both agree with me.
Anyway, a good job on the part of Mr. Del Mastro and PCH officials. A good day generally. And no security guards!
My only criticism and the only “bad news”? Simply that, at the Royal Canadian Legion Hall. there was no beer. ;-) Beer is a part of what makes Royal Canadian Legion halls legendary. Even afterwards, the officials were resolute in their refusal to open the bar. There must be some Treasury Board rule or other bureaucratic barrier against open bars at official copyright consultations. Ironically, my long since defunct musical career started with my first public performance as a clarinetist at a Royal Canadian Legion Hall in Woodstock, Ontario at the tender age of about ten. Of course, I didn’t get any beer then, either. One of these days, I’ll get to have a free beer at a Royal Canadian Legion Hall. Now, at least, I’m old enough.
HK
First, the good news. It was very ably chaired by Dean Del Mastro, who is the MP from Peterborough, and the Parliamentary Secretary to Minister of Canadian Heritage James Moore and a member of the Heritage Committee. Nicole Frenette, Drew Olsen, Tanya Peatt from Canadian Heritage and other officials were also present.
Mr. Del Mastro was very well prepared and very skillful and diplomatic in his moderation. And, indeed, the speakers were very well balanced. There were reps from the library, ISP, telco, museum, artist management (for some very well known Canadian music stars), fine arts, converged media, photography, First Nations, etc. communities. I didn’t get all the names, but the transcript will be out in a couple of days.
The discussion was civilized but quite lively. Everyone got a chance to say what they wanted to say. Mr. Del Mastro had some very good questions.
Indeed, he put me on the spot by suggesting that some would find that my remarks (posted here) reflected “non-starter” positions and would even question whether these positions are consistent with the WIPO treaties. I was naturally astonished that anyone would have found my quite reasonable suggestion of six ways to simplify and expedite Canadian copyright revision and WIPO ratification to be a “non-starter”, but in these days where an AF of M spokesman finds Charlie Angus’ quest for “balanced” copyright to be “disgusting”, I suppose that nothing should surprise me. I assured Mr. Del Mastro that these positions were not only restrained but WIPO compliant. And that less controversial stakeholders than me have taken similar positions, especially on circumvention and flexible fair dealing. Indeed, on format shifting, it seems that even the RIAA and CRIA both agree with me.
Anyway, a good job on the part of Mr. Del Mastro and PCH officials. A good day generally. And no security guards!
My only criticism and the only “bad news”? Simply that, at the Royal Canadian Legion Hall. there was no beer. ;-) Beer is a part of what makes Royal Canadian Legion halls legendary. Even afterwards, the officials were resolute in their refusal to open the bar. There must be some Treasury Board rule or other bureaucratic barrier against open bars at official copyright consultations. Ironically, my long since defunct musical career started with my first public performance as a clarinetist at a Royal Canadian Legion Hall in Woodstock, Ontario at the tender age of about ten. Of course, I didn’t get any beer then, either. One of these days, I’ll get to have a free beer at a Royal Canadian Legion Hall. Now, at least, I’m old enough.
HK
Six Ways to Simplify Canadian Copyright Revision and WIPO Ratification
Here is the gist of my presentation yesterday at the September 1, 2009 Peterborough Round Table event hosted by Dean Del Mastro, M.P. I will shortly post a comment about this very positive event.
*******************
I am Howard Knopf. I've been a copyright lawyer for almost 30 years. I've been active in Government, in academia, at WIPO, and involved in some of the most interesting and important recent copyright cases at all levels, including in the Supreme Courts of both Canada and the USA. Although I am the Chairman of the CBA Copyright Policy Committee, I am not here today in that capacity or on behalf of any of my clients, which include both owners and users of copyright and who range from the very largest of corporations to the most modest of individuals. I'm here today only because I care about copyright law and I care about Canada.
In order to succeed in this revision effort, we need above all to simplify. Here are a half dozen specific positive things we can do:
1. The fair dealing provisions should be simplified by making them clearly an inclusive and illustrative list and not exhaustive. This can be done very simply by including words such as "such as" and words such as "teaching (including multiple copies for classroom use)" as we see in the US law. We also need an exception for "satire and parody", which our courts, unlike the US Supreme Court, have denied us. This simplified approach would also eliminate the need for the pages upon pages of complex, unnecessary, and even harmful particular exceptions that certain parts of the educational community believe would actually be helpful - despite the much more helpful approach of the Supreme Court of Canada in the landmark CCH case in 2004. Such an approach would also take care of most of the concerns of museums, archives and libraries.
2. The levy provisions in the current law should be simplified by their elimination. They are an obsolete relic from the analog era and a continental European socialistic collective approach that has been rejected in the USA, UK and Australia. By keeping the levies, and worse still by adding a so-called “iPod tax", we will greatly hinder WIPO ratification, because the national treatment principle would require that Canada's levy liability will literally be doubled at a possible cost of hundreds of millions a year. The levy scheme is wholly contained in Part VIII of the Copyright Act. Snip and it's gone. It's really that simple. And the door will then be open for WIPO ratification.
3. Remedies should be simplified so that the punishment fits the crime. Statutory minimum damages should be simply eliminated other than in circumstances where there is clearly provable commercial scale and "for profit" activity involved. Canada is not a place where it should even be theoretically possible to have such an outcome as the two million dollar judgment against a single mother for downloading 24 songs, as we saw a few weeks ago in Minnesota. The Canadian recording industry failed in a similar effort a few years ago. Now it wants the law changed to make it easier for them the next time. Don't give them the opportunity - because they will surely use it. And don’t even think about “three strikes” or the so-called “graduated response” approach. It would be a policy and political disaster. You don’t take away the family car because one of the kids gets caught speeding.
4. The circumvention debate should be simplified by making circumvention clearly legal for any legal purpose, such as fair dealing, time, space and format shifting, bypassing regional coding, access for the blind or other perceptually handicapped persons, archiving for backup purposes and, of course, repairing a computer damaged by malware from copyright owners seeking to impose DRM and TPM. Any product that is capable of substantial non-infringing use should be legal. Otherwise, we will never again see innovations such as photocopiers, VCRs, personal computers, iPods, etc. To simplify the DRM/TPM debate, we need protection from DRM and TPM technology and not for it.
5. We need to clarify and simplify the complex question of whether copyright law can be used to control or even prevent free trade in legitimately made articles sourced from abroad where the copyright involves only the packaging or labelling other merely incidental elements of the product. Copyright law was never intended to restrict free trade and competition in products such as chocolate bars or wrist watches.
6. Above all, we need to simplify by ensuring technological neutrality and clear, general language. Our 1921 legislation, based on the classic 1911 British model, comprises the core of our current legislation. It's still pretty good. It was short, elegant and largely technologically neutral - even at a time of great technological ferment a century ago.
Canada has a choice now - which is to have one of the best new copyright laws anywhere or to have one of the worst, such as Bill C-61 would have given us. We don't need another 50 page "Made worse in Canada" incomprehensible C-61 type rewrite of the failed US DMCA approach. We should emulate the best of the US and other statutes, not the worst. My half dozen suggestions could be drafted in a matter of days, not weeks or months. If the Bill is more than half a dozen pages long, we will already be in big trouble. We already have one of the strongest and best copyright laws in the world. Let’s make it even better.
Thank you for your attention.
Howard Knopf
*******************
September 1, 2009
Howard Knopf
Roundtable Presentation Peterborough, Ontario
(check against delivery)
Howard Knopf
Roundtable Presentation Peterborough, Ontario
(check against delivery)
I am Howard Knopf. I've been a copyright lawyer for almost 30 years. I've been active in Government, in academia, at WIPO, and involved in some of the most interesting and important recent copyright cases at all levels, including in the Supreme Courts of both Canada and the USA. Although I am the Chairman of the CBA Copyright Policy Committee, I am not here today in that capacity or on behalf of any of my clients, which include both owners and users of copyright and who range from the very largest of corporations to the most modest of individuals. I'm here today only because I care about copyright law and I care about Canada.
In order to succeed in this revision effort, we need above all to simplify. Here are a half dozen specific positive things we can do:
1. The fair dealing provisions should be simplified by making them clearly an inclusive and illustrative list and not exhaustive. This can be done very simply by including words such as "such as" and words such as "teaching (including multiple copies for classroom use)" as we see in the US law. We also need an exception for "satire and parody", which our courts, unlike the US Supreme Court, have denied us. This simplified approach would also eliminate the need for the pages upon pages of complex, unnecessary, and even harmful particular exceptions that certain parts of the educational community believe would actually be helpful - despite the much more helpful approach of the Supreme Court of Canada in the landmark CCH case in 2004. Such an approach would also take care of most of the concerns of museums, archives and libraries.
2. The levy provisions in the current law should be simplified by their elimination. They are an obsolete relic from the analog era and a continental European socialistic collective approach that has been rejected in the USA, UK and Australia. By keeping the levies, and worse still by adding a so-called “iPod tax", we will greatly hinder WIPO ratification, because the national treatment principle would require that Canada's levy liability will literally be doubled at a possible cost of hundreds of millions a year. The levy scheme is wholly contained in Part VIII of the Copyright Act. Snip and it's gone. It's really that simple. And the door will then be open for WIPO ratification.
3. Remedies should be simplified so that the punishment fits the crime. Statutory minimum damages should be simply eliminated other than in circumstances where there is clearly provable commercial scale and "for profit" activity involved. Canada is not a place where it should even be theoretically possible to have such an outcome as the two million dollar judgment against a single mother for downloading 24 songs, as we saw a few weeks ago in Minnesota. The Canadian recording industry failed in a similar effort a few years ago. Now it wants the law changed to make it easier for them the next time. Don't give them the opportunity - because they will surely use it. And don’t even think about “three strikes” or the so-called “graduated response” approach. It would be a policy and political disaster. You don’t take away the family car because one of the kids gets caught speeding.
4. The circumvention debate should be simplified by making circumvention clearly legal for any legal purpose, such as fair dealing, time, space and format shifting, bypassing regional coding, access for the blind or other perceptually handicapped persons, archiving for backup purposes and, of course, repairing a computer damaged by malware from copyright owners seeking to impose DRM and TPM. Any product that is capable of substantial non-infringing use should be legal. Otherwise, we will never again see innovations such as photocopiers, VCRs, personal computers, iPods, etc. To simplify the DRM/TPM debate, we need protection from DRM and TPM technology and not for it.
5. We need to clarify and simplify the complex question of whether copyright law can be used to control or even prevent free trade in legitimately made articles sourced from abroad where the copyright involves only the packaging or labelling other merely incidental elements of the product. Copyright law was never intended to restrict free trade and competition in products such as chocolate bars or wrist watches.
6. Above all, we need to simplify by ensuring technological neutrality and clear, general language. Our 1921 legislation, based on the classic 1911 British model, comprises the core of our current legislation. It's still pretty good. It was short, elegant and largely technologically neutral - even at a time of great technological ferment a century ago.
Canada has a choice now - which is to have one of the best new copyright laws anywhere or to have one of the worst, such as Bill C-61 would have given us. We don't need another 50 page "Made worse in Canada" incomprehensible C-61 type rewrite of the failed US DMCA approach. We should emulate the best of the US and other statutes, not the worst. My half dozen suggestions could be drafted in a matter of days, not weeks or months. If the Bill is more than half a dozen pages long, we will already be in big trouble. We already have one of the strongest and best copyright laws in the world. Let’s make it even better.
Thank you for your attention.
Howard Knopf
Thursday, August 27, 2009
Canada Kicks Worldwide Butt on Facebook Privacy Issues
Congratulations to Canada's Privacy Commissioner, Jennifer Stoddart, and to complainant CIPPIC (Pippa Lawson and David Fewer) for kicking butt and getting Facebook to improve on a worldwide basis. See this.
Now, if only the CRTC could show such leadership on net neutrality and if Parliament could show such leadership on copyright reform, and the Competition Bureau could show such leadership on competition law re ISP and wireless issues, not to mention Ticketmaster, etc., Canada would be an even better place.
HK
Tuesday, August 25, 2009
UK Flip Flops into Controversy on Three Strikes
The UK government is stepping into major controversy by ignoring Lord Carter's Digital Britain recommendations, the views of former Cabinet Secretary Tom Watson, the wishes of major ISP's and risking serious consumer (i.e. voter) potential backlash by caving into recording industry demands for some sort of three strikes policy. There are allegations that Lord Mandelson insisted on this after a recent dinner with David Geffen. If this somehow becomes law, court challenges can be expected. "Human rights" are now a matter of EU jurisdiction and it is generally accepted that internet access is a human right in Europe. This especially makes sense if internet access for a entire household is lost because the activities of one member, perhaps a child. This is what "three strikes" will mean.
One is surprised that Lord Mandelson and Prime Minister Brown have not learned the lessons that have cost the French culture minister her job and created so much controversy in New Zealand.
Closer to home, becoming too friendly with the entertainment industry apparently contributed to Sam Bulte losing her seat in the 2006 election. If she had kept her seat and if the Liberals had formed the government, she might have been the Minister of Heritage.
Former Canadian Industry Minister Jim Prentice, who led the fight for Bill C-61 last year, is now Minister of the Environment. One doubts that he has pleasant memories of the reaction to and aftermath of his very one-sided bill.
HK
One is surprised that Lord Mandelson and Prime Minister Brown have not learned the lessons that have cost the French culture minister her job and created so much controversy in New Zealand.
Closer to home, becoming too friendly with the entertainment industry apparently contributed to Sam Bulte losing her seat in the 2006 election. If she had kept her seat and if the Liberals had formed the government, she might have been the Minister of Heritage.
Former Canadian Industry Minister Jim Prentice, who led the fight for Bill C-61 last year, is now Minister of the Environment. One doubts that he has pleasant memories of the reaction to and aftermath of his very one-sided bill.
HK
Sunday, August 23, 2009
My Response to Prof. Charles Nesson re Tenenbaum
Concerning the Tenenbaum case, Prof. Nesson of Harvard, who led Joel’s defense, has asked me on a closed academic list, on his blog, and on my blog “on what issue might I have prevailed had I offered what you imagine to be a good defense?”
Here’s my response.
********************
Dear Charlie:
First of all, given the facts as they have come out both before and as reported in the various media during the trial (I obviously haven’t seen the transcript), I still tend to doubt that this was a particularly winnable case.
BTW, in 2004 we “won” this battle in Canada before it ever really started by preventing the disclosure of the names behind IP addresses in the Canadian version of the RIAA’s attempt to sue individuals. And we have a similar statutory minimum damages regime here, inspired by the USA but with some differences such as a max of CDN $20,000 per work. Still quite dangerous. The Canadian record companies were unable or unwilling to provide sufficient admissible evidence to warrant this disclosure in light of the “risk that the information as to identity may be inaccurate”, the resulting exposure to serious civil liability and the invasion of privacy. We were helped by a pretty good federal privacy statute in Canada and at least two ISPs that seriously stood up for their customers at the time (Shaw and Telus). See here and here. I was involved on the winning side. It’s really too bad that these cases weren’t likewise stopped at the outset in the USA, but that battle appears to have been lost a long time ago in other cases.
There's really not much I can add to my original blog post from August 3, following the July 31 verdict and my other posts on this.
I can point to Ray Beckerman's “wish list”, which outlines several possible technical and practical arguments based upon such matters as dates of registration, lack of proof of actual “distribution” according to the language of and case law on § 106(3), etc. which might or might not have worked to get Joel off the hook. Ray also mentions our Canadian case in his point that “Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.”
I don't know which of these issues were addressed at trial or how much evidence on these issues there is on the record.
Apart from a victory based on issues such as those on Ray's “wish list”, the only other conceivably “winnable” issues might have been a very uphill fair use argument and a potentially more successful argument on the unconstitutionality of the statutory minimum damages provisions. I know you have tried to pursue both of these issues.
• Fair Use. If there was a winnable argument here, which far greater experts than me have doubted according to your own blog, it would probably have involved a lot of analysis of the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”) and this would presumably have required a lot of economic evidence. This evidence might have come, for starters, from your Harvard colleague Oberholzer-Gee and/or Andersen/Frenz in the UK as expert(s) to show that there was evidence as to no overall harm and maybe even a “benign” or “positive” effect on “the potential market for or value of the copyrighted work”. At least such evidence might have enabled Judge Gertner to deny summary judgment on this issue. It would have also enabled a great debate with the very able Stan Liebowitz, with whom one may disagree - but he is still a very accomplished and important economist in the IP area and an experienced expert witness. Maybe other evidence in addition from someone with knowledge about the economic insides of the record industry would have helped. I frankly doubt, as you have suggested in the Canadian media in your interview with Jesse Brown, that the lack of “fairness” on the part of the record industry either in the way it has marketed music to its customers or treats is customers in its litigation campaign is a winnable fair use argument under §107, even if you are right that the four factors are not “exclusive” and that Court can go beyond the four factors and even devise a new “fair use” affirmative defense. Whether or not there is the makings of a potential “abuse of process” or Posnerian “misuse” of copyright argument or something along these lines is hypothetically an interesting issue to speculate upon for another day, but doesn’t seem to be on the record here and would also presumably require a lot of solid evidence.
• Unconstitutional statutory minimum damages. This seems potentially much more winnable than fair use. But if there is a winnable argument here, it would probably also require lots of evidence to show that a statute that permits an award of up to $150,000 per work in these circumstances and $22,500 per work times 30 works as actually awarded for downloading and supposedly sharing 30 songs that sell for about $0.99 each retail goes so far beyond any possibly valid “deterrent” or “punitive” purpose that it is, on its face, unconstitutional. Unfortunately, the SCOTUS may not see this as self evident. Again, maybe Oberholzer-Gee or Andersen/Frenz could have helped here, and perhaps other experts on the economics of the music industry, how file sharing actually works, how many of the ocean of unauthorized downloads can be causally attributed to Joel, and the overall question of proportionality. Maybe some expert sociological or criminological evidence on “deterrence”. But given the post-Eldred approach to deference to Congress on quantifiable copyright policy matters such as extending the term from life + 50 to life + 70, I would imagine that you would now need a great deal of solid evidence to show that this choice of a numerical range of a minimum of $750 and up to $150,000 per work for willful infringement is not only beyond “arguably unwise” but also somehow clearly unconstitutional. For better or worse, “unwise” and “unfair” may not equate with “unconstitutional.” BTW, there is an important article in the works by Pam Samuelson and Tara Wheatland, which I’m sure you know about, but for the benefit of other readers can found here as a work in progress (recently revised).
Best regards,
Howard
****************
HK
PS: August 25, 2009: PS - Prof. Nesson's comments on the above are on his blog here.
Here’s my response.
********************
Dear Charlie:
First of all, given the facts as they have come out both before and as reported in the various media during the trial (I obviously haven’t seen the transcript), I still tend to doubt that this was a particularly winnable case.
BTW, in 2004 we “won” this battle in Canada before it ever really started by preventing the disclosure of the names behind IP addresses in the Canadian version of the RIAA’s attempt to sue individuals. And we have a similar statutory minimum damages regime here, inspired by the USA but with some differences such as a max of CDN $20,000 per work. Still quite dangerous. The Canadian record companies were unable or unwilling to provide sufficient admissible evidence to warrant this disclosure in light of the “risk that the information as to identity may be inaccurate”, the resulting exposure to serious civil liability and the invasion of privacy. We were helped by a pretty good federal privacy statute in Canada and at least two ISPs that seriously stood up for their customers at the time (Shaw and Telus). See here and here. I was involved on the winning side. It’s really too bad that these cases weren’t likewise stopped at the outset in the USA, but that battle appears to have been lost a long time ago in other cases.
There's really not much I can add to my original blog post from August 3, following the July 31 verdict and my other posts on this.
I can point to Ray Beckerman's “wish list”, which outlines several possible technical and practical arguments based upon such matters as dates of registration, lack of proof of actual “distribution” according to the language of and case law on § 106(3), etc. which might or might not have worked to get Joel off the hook. Ray also mentions our Canadian case in his point that “Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.”
I don't know which of these issues were addressed at trial or how much evidence on these issues there is on the record.
Apart from a victory based on issues such as those on Ray's “wish list”, the only other conceivably “winnable” issues might have been a very uphill fair use argument and a potentially more successful argument on the unconstitutionality of the statutory minimum damages provisions. I know you have tried to pursue both of these issues.
• Fair Use. If there was a winnable argument here, which far greater experts than me have doubted according to your own blog, it would probably have involved a lot of analysis of the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”) and this would presumably have required a lot of economic evidence. This evidence might have come, for starters, from your Harvard colleague Oberholzer-Gee and/or Andersen/Frenz in the UK as expert(s) to show that there was evidence as to no overall harm and maybe even a “benign” or “positive” effect on “the potential market for or value of the copyrighted work”. At least such evidence might have enabled Judge Gertner to deny summary judgment on this issue. It would have also enabled a great debate with the very able Stan Liebowitz, with whom one may disagree - but he is still a very accomplished and important economist in the IP area and an experienced expert witness. Maybe other evidence in addition from someone with knowledge about the economic insides of the record industry would have helped. I frankly doubt, as you have suggested in the Canadian media in your interview with Jesse Brown, that the lack of “fairness” on the part of the record industry either in the way it has marketed music to its customers or treats is customers in its litigation campaign is a winnable fair use argument under §107, even if you are right that the four factors are not “exclusive” and that Court can go beyond the four factors and even devise a new “fair use” affirmative defense. Whether or not there is the makings of a potential “abuse of process” or Posnerian “misuse” of copyright argument or something along these lines is hypothetically an interesting issue to speculate upon for another day, but doesn’t seem to be on the record here and would also presumably require a lot of solid evidence.
• Unconstitutional statutory minimum damages. This seems potentially much more winnable than fair use. But if there is a winnable argument here, it would probably also require lots of evidence to show that a statute that permits an award of up to $150,000 per work in these circumstances and $22,500 per work times 30 works as actually awarded for downloading and supposedly sharing 30 songs that sell for about $0.99 each retail goes so far beyond any possibly valid “deterrent” or “punitive” purpose that it is, on its face, unconstitutional. Unfortunately, the SCOTUS may not see this as self evident. Again, maybe Oberholzer-Gee or Andersen/Frenz could have helped here, and perhaps other experts on the economics of the music industry, how file sharing actually works, how many of the ocean of unauthorized downloads can be causally attributed to Joel, and the overall question of proportionality. Maybe some expert sociological or criminological evidence on “deterrence”. But given the post-Eldred approach to deference to Congress on quantifiable copyright policy matters such as extending the term from life + 50 to life + 70, I would imagine that you would now need a great deal of solid evidence to show that this choice of a numerical range of a minimum of $750 and up to $150,000 per work for willful infringement is not only beyond “arguably unwise” but also somehow clearly unconstitutional. For better or worse, “unwise” and “unfair” may not equate with “unconstitutional.” BTW, there is an important article in the works by Pam Samuelson and Tara Wheatland, which I’m sure you know about, but for the benefit of other readers can found here as a work in progress (recently revised).
Best regards,
Howard
****************
HK
PS: August 25, 2009: PS - Prof. Nesson's comments on the above are on his blog here.
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