Lost in the iPod Shuffle “Tax” Shuffle

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HK

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HK

March 18, 2010

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

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

(emphasis added)

I wonder how Mr. Gannon would characterize this analysis.

PS #2:

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

Is a Canadian iPod "Tax" "Nonsensical"?

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

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

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

mpjamesmoore:

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

(emphasis added)

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

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

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

(emphasis added)

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

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

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

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

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

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

“Semantic problem”? Really!

“Unforeseeable in 1997"? Really!

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

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

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

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

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

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

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

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

HK

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

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

...

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

Trosow on Flexibility

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

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

Sam suggests that:

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

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

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

HK

Will Canadian Copyright Revision Spring Forth Early?

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

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

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

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

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

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

HK

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

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

Article 30 of that Convention provides that:

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

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

HK

ACTA Setback in EU

IP WATCH confirms that:

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

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

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

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

Well, that much at least is very transparent.

HK

On Bandying About Reports of Band Brands Behaving Badly

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

HT to the IP Kat and the IP Think Tank.

HK

Putting IP Into Yorkshire Pudding

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

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


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

HK

Charting the Future of the Google Book Settlement

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

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

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

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

HK

Excerpt from today's Speech From the Throne:

Excerpt from today's Speech From the Throne:

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

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

(emphasis added)

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

HK

"Special 301" Live Tweets from Washington

Tune in to live hearings.

#acta

#ustr

HK

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

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

The section provides that:

§ 411. Registration and civil infringement actions

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

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

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

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

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

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

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

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

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

Just wondering...

HK

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

22nd Example of How Canadian Copyright Law is Stronger than US - and Another Possible US Treaty Violation

I can add a new 22nd example to my list of 21 ways in which Canadian copyright law is stroner than that of the USA.

James A. Trigg and Joseph Petersen at Kilpatrick, Stockton have written about a recent decision of a US Federal Court Judge William Pauley III in the highly regarded Southern District of New York Federal Court. The decision in Elsevier B.V. v. UnitedHealth Group, Inc., No, 9 Civ. 2124 (S.D.N.Y. January, 14, 2010) is here.

This decision confirms that, pursuant to 17 USC §412, there can be no recovery of statutory damages or attorney's fees for infringed foreign copyrights unless there has been timely registration in the US Copyright Office. That's no different than for U.S. Copyrights. But one might have thought that the USA would not impose formalities on foreigners, because the Berne Convention prohibits this. The Judge ruled that the Berne Convention didn't help here because it is not self executing.

None of this is surprising or even new. And the result treats foreigners no worse in this respect than owners of American copyright.

If this seems like déja vu all over again, it is - because there was an important similar ruling in the YouTube litigaiton by another SDNY judge, Louis Stanton, last year which I blogged about here.

But it highlights an area in which US law is MUCH weaker than Canadian law. Canada has statutory damages and has a registration system. But there is no sine qua non of prior registration in order to be eligible for statutory damages. There are significant advantages to timely registration in Canada in terms of proving the ownership and subsistence of copyright and entitlement to damages when the defendant proves that, at the date of the infringement, the defendant was not aware and had no reasonable ground for suspecting that copyright subsisted in the work or other subject-matter in question.bBut there is nothing resembling the harsh disadvantage of failure to register in the USA.

On a policy and political level, this shows once again the “do as we say, not as we do” approach of the USA when it preaches that other countries don't provide "adequate and effective" enforcement. On this issue, Canada once again comes out way ahead.

The even more interesting question is whether there is a Berne Treaty violation here - in terms of the imposition of mandatory formalities (i.e. registration) in order to achieve “adequate and effective” protection, as the Americans like to call it.

Article 5(2) of the Berne Convention provides that:

The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

The decision provides a short but very discussion of the legislative history of §412 and the discussion of the Berne Convention. The U.S. Senate chose NOT to amend the section in order to relieve foreigners of these formality requirements because it concluded that this was not necessary. Elsivier argued that this decision by the Senate was wrong and that §412 conflicts with Article 5(2) of Berne. But the Judge did not rule on that argument, given his ruling that the Berne Convention is not self-executing and that it therefore doesn't apply.

It should be noted that USA registration, while not rocket science, can be far more difficult and expensive in terms of legal fees than Canadian registration. One has to choose the right form (not always obvious) and there is examination involved. The process is slow and the outcome is not always assured, given that the examination process is quite serious. In contrast, the Canadian system is much simpler and there is no examination. Indeed, one can't even deposit the work.

Let's see if anyone in another country is sufficiently riled about this to bring a WTO complaint, as was done successfully against the USA in the notorious §110 case about the exemption for performances in countless small establishments such as bars, restaurants and stores.

Should USA Black List Itself on its Special 301 "****" List?

Should USA Black List Itself on its own Special 301 "****"List? The renowned Jesse Brown asks this question on his TVO "SEARCH ENGINE"™ current podcast and interviews yours truly here.

HK

Perennial IIPA Blame Canada Litany

The annual International Intellectual Property Alliance ("IIPA") litany of misleading and overwrought allegations against Canada as a "haven" for all sorts of "piracy" and other evils has just been published.

The IIPA, which has been run by a couple of very smart lawyers in Washington, describes itself as follows:

The International Intellectual Property Alliance (IIPA) is a private sector coalition, formed in 1984, of trade associations representing U.S. copyright-based industries in bilateral and multilateral efforts working to improve international protection and enforcement of copyrighted materials and open up foreign markets closed by piracy and other market access barriers.

IIPA’s seven member associations are: the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (IFTA), the Motion Picture Association of America (MPAA), the National Music Publishers’ Association (NMPA) and the Recording Industry Association of America (RIAA). IIPA’s seven member associations represent over 1,900 U.S. companies producing and distributing materials protected by copyright laws throughout the world—all types of computer software, including business applications software and entertainment software (such as videogame discs and cartridges, personal computer CD-ROMs, and multimedia products); theatrical films, television programs, DVDs and home video and digital representations of audiovisual works; music, records, CDs, and audiocassettes; and textbooks, trade books, reference and professional publications and journals (in both electronic and print media).

One of the IIPA lawyers has recently appeared with a leading Canadian entertainment industry lawyer/lobbyist to stage faux-"debates" under the aegis of the the Canada Institute of the Woodrow Wilson International Center no less, which should be embarrassed at having provided such a blatant lobbying podium in both Toronto and Washington. These were not debates. They were duets.

The IIPA tells us how we should run our law enforcement agencies, operate our borders (by keeping Judges out of the seizure procedure because going to court is "unduly burdensome") and generally using taxpayer resources to enforce their members' private rights.

Unfortunately, they have sympathetic listeners in Canadian law enforcement and the government itself.

But the real agenda here may well involve other issues - such as parallel imports, which are perfectly legal and - to the dismay of many content owners - very competitive and consumer friendly. For a lot of content owners, anything that can delay or hinder parallel imports or other legitimate products is good. That easy access to non-judicial "ex officio" border enforcement can be used for abusive and anti-competitive purposes has recently been illustrated in the Netherlands with respect to perfectly legal - but "generic" - AIDs medication that reportedly got seriously held up for all the wrong reasons. People may well have died.

It certainly seems incongruous to hear a major trade association in the entertainment business taking upon itself the crusade against counterfeit toothpaste, etc.

Nobody defends piracy or counterfeiting. The problem, however, is to ensure that changes in the law don't affect legitimate activity, such as parallel importation.

We have seen how the pursuit of a just, commendable and unnecessary cause (anti-terrorism) can lead to serious, unnecessary and inefficient erosion of privacy and other fundamental rights of countless innocent people. Let us hope that the overblown invocation of "piracy" and "counterfeiting" does not cause more harm than good.

HK

Long Live Gordon Lightfoot!

Happily, Gordon Lightfoot is alive and well and was on the way from his dentist to his offfice when his death was wrongly exaggerated by, who else, Canwest.

For a tangled tale of twittered troubles today in Canadian newsrooms, see David Akin's evolving current take here.

What's the copyright angle? Lightfoot sez on a radio interview today:

"I heard you mentioned it on the radio on my way in here (his office in downtown Toronto)," joked Lightfoot, live with Adler. "I'm hearing my obituary ... I haven't had so much airplay for weeks."

Check this link to hear his interview.

Hopefully, Gordon will see a big spike on his SOCAN/NRCC cheques for today's bizarre hyperactivity. But he shouldn't count on it - because the mysteries of Canadian collectives' logging and accounting are beyond the scrutiny of mere mortals such as artists and of no interest to Canada's Copyright Board.

HK

Some Thoughts on the Google Book Settlement Hearing of February 18, 2010

I’ve said very little about the Google Book Settlement (“GBS”) to date because it is so complex and because is raises so many unanswerable questions. Moreover, at this stage I have no committed convictions on it. In fact, I’m really genuinely agnostic about it.

On the one hand, I love the idea of great celestial digital library in the cloud that will include virtually all useful books, including "orphans", will last forever and provide the greatest possible accessibility at the lowest possible cost while fairly compensating current rights owners. On the other hand, I wonder whether this grand vision is entirely legal under the relevant current domestic and international legal regimes. I’m skeptical about using the class action process of a single country, wherein a handful of brilliant and well intentioned individuals can take upon themselves the mandate arguably to unilaterally, effectively and fundamentally change copyright law in the major English speaking jurisdictions of the world, with French books published in Quebec being included. Moreover, I have serious questions about a settlement that will sweep in Canadian authors and publishers but will deny Canadian users most of the bells, whistles, benefits and access to the resulting library.

There are big questions here that won’t go away easily. Judge Denny Chin is a District Court Judge in the Southern District of New York who has been nominated to the fabled Second Circuit Court of Appeals to replace Judge Sotomayor who was recently appointed to the US Supreme Court. He will have to rule on many complex questions following a fairness hearing today February 18, 2010 dealing with the Amended Settlement Agreement (“ASA”). Judge Chin has dealt with many high profile cases, including that of Bernie Madoff, who he sentenced to a longer than life term of 150 years in jail, leaving no doubt that life means life.

For starters, here is the partial list of documents that Judge Chin will have to consider, most of which were only recently filed. There have, of course, been many more filed before this ASA hearing was set down and for the first hearing.

Here are some of the general questions that various stakeholders have for Judge Chin, followed by some Canadian based questions that he may not have to answer but Canadians need to consider:

General:

1. Is this an appropriate use of the class action process, especially in view of the many prestigious groups, corporations and individuals who have objected to the ASA? In other words, to what extent does the class involved adequately represent affected authors and publishers, not to mention countless other stakeholders, including librarians and scholars?

2. Can a class action settlement go well beyond the original pleadings and, effectively, change the law both for the past and for the future in a way that would otherwise be impossible at this point in time if it were to be attempted in Congress and/or through a treaty?

3. Given the extraordinary complexity of the settlement documentation and the relatively short notice period, can affected authors, publishers and other stakeholders realistically come to informed conclusions?

4. Is it appropriate to use class action litigation to arguably transform the normally “exclusive rights” basis of copyright law, which requires explicit permission, into an opt-out regime, where permission will be given unless specifically refused in writing? The deadline for total “opting out” was January 28, 2010. Google argues that even those who didn't opt out by January 28, 2010 will have plenty of opportunities to exercise control over their works down the line for many purposes - but this will still require further “opt out” or other action.

5. Would the Settlement, if approved, put the United States into contravention of international law with respect to such basic concepts as those of national treatment, mandatory exclusive rights, and the three step test? None other than the Hon. Marybeth Peters, U.S. Register of Copyrights raised the national treatment issue in her testimony to the House Judiciary Committee.

6. What will be the antitrust implications of the ASA, given the dominant or monopoly position that Google will have with respect to several markets that it is creating by virtue of this Settlement, i.e. access to orphan works, and, above all the sole portal to search engine access to the database of tens of millions of books (the great “Library to Last Forever”, as Sergey Brin himself calls it)?

7. What are the implications of views such as this by prominent US IP antitrust lawyer Gary Reback?

8. What are the extraterritorial implications of this agreement, which requires authors of books published in Australia, Canada (including French language books) and the UK (the “foreign publishing countries”) to have opted out by January 28, 2010 or be bound by it? It also covers books published in these countries, even for the countless authors who are not citizens or residents of these foreign publishing countries or the USA. Unlike United States works, there is no requirement for the foreign works to have been registered in the US Copyright Office. Given the practice of simultaneous or near simultaneous publication of countless English language books in the foreign publishing countries, Google will acquire an enormous number of books in their database that would not fit into the necessarily tighter definition of a US work, which requires publication and registration in the USA. Moreover, many French books published in Quebec but originating from anywhere in the world including France would be included.

9. What about the countless past agreements signed between authors and publishers that were silent or at best ambiguous about electronic rights?

10. What about the privacy rights of potential users?

Here are some Canadian-focussed questions, which Judge Chin will not likely answer but others may eventually have to face:

1. Why has the Government of Canada apparently been uninvolved and uninterested in the GBS? There has been no public consultation that I am aware of. France and Germany have become engaged at the official level. On the other hand, Canadian officials who would normally be involved in an issue such as this haven’t been.

2. Where are the several prominent Canadian trade associations and collectives that should have provided some useful specific advice and potentially some representation for Canadian authors, publishers, librarians etc. on these issues?

3. What are the implications of the Google Partner Program, which appears to allow publishers to feed into Google’s database for very extended access the books of many authors, who may have been and still may be unaware of the Program?

4. Why is this shaping up to be a battle between scholarly and other individual authors. ranging from the most obscure to J. K. Rowling herself on the one hand and big corporate publishers on the other? I note that the Canadian Publishers’ Council and the Association of Canadian Publishers (which together represent the big multinational and major Canadian publishers) are recommending approval of the Settlement at the same time that they attempting to intervene to fight “flexible fair dealing” and push back on the CCH v. LSUC decision in the Access Copyright K-12 case currently before the Canadian Federal Court of Appeal. On the other hand, many independent Canadian authors and the Canadian Association of University Teachers (“CAUT”) are opposing the GBS. Naturally, the database will be far more important for innovation and research purposes with respect to scholarly works than, for example, light romance novels (no offence to the fan fiction crowd).

5. Although vast numbers of Canadian published books by thousands of Canadian authors will be drawn into this settlement, most of the bells and whistles of the Google Books database will presumably not be available in Canada with respect to most of the database. This is because Google is necessarily putting up something of a firewall around this database since, even though there may be some extraterritorial aspects to the settlement, the Settlement not surprisingly purports not to affect activities implicating copyright rights in foreign countries outside of the USA.

6. Canadians may wish to read, if nothing else, the submissions of Google itself and the US Department of Justice (which supports the basic goals of the ASA but reiterates that it is still “a bridge too far” and should not be approved as is). Canadians will also want to read the few but important submissions from Canada. As well, there are “must read” submissions from Pam Samuelson and many notable advocacy groups on all sides, and corporate interests, including Microsoft and AT&T.

There is no doubt that Judge Chin will have his hands full with this case, and they eyes of the entire copyright world will be focussed on him. If this case were ever to go to trial, it would likely be a vastly more complex copyright case than anything ever heard anywhere before. Whatever happens after today will most certainly not be a routine rubber stamp judicial approval of a class action settlement.

Judge Chin's ruling will have profound public policy implications not only in the USA but potentially also everywhere else. Whatever Judge Chin decides, he will be expected to provide ample reasons. Despite, or perhaps indeed because of, the importance, complexity and controversy of this matter, I’m willing to predict that we will see a lengthy and detailed judgment from Judge Chin in a few weeks or a few months at the most.

HK

The Annual “301" Show - USTR Calls for Comment - 21 Reasons Why Canadian Copyright Law is Already Stronger Than USA's

The deadline for submissions on the U.S. “301" process has been extended until 5:00 PM on Thursday, February 18, 2010 due the Washington weather. This year, the USTR is calling for public submissions and will hold hearings. In the past, the process has been far from transparent. In fact, in the past the report has been heavily influenced if not essentially drafted by certain Washington lawyer/lobbyists with major copyright content industry clientele operating under the banner of the International Intellectual Property Alliance.

Unfortunately, it appears that the Canadian Government is not going be making a submission, despite the outreach of the USTR this year in inviting submissions and even conducting oral hearings. This could lead to false and misleading suggestions that Canada doesn't care or that it accepts past accusations. Sometimes, it's OK and even prudent to ignore absurd charges and processes. But the U.S. has taken the strategic high ground and the tactical initiative by at least purporting to open up this process. Whatever the intention, it's a clever move on the part of the USA. Therefore, it's risky to boycott it or ignore it at the public level. Private diplomatic submissions behind the scenes do nothing to reassure Canadians and will likely have little, if any, influence in Washington these days. Unfortunately, Canada's public silence on this and other IP issues may create the impression, rightly or wrongly, that Canada either cannot make up its mind or is unwilling to take a public stand on important but controversial issues. Either way, Canada risks an ever diminishing role in fora such as WIPO, ACTA, Canada/EU FTA, WTO, etc.

Nonetheless, this is an important opportunity to make views known, since the usual suspects in the U.S. copyright based industries will be working through the usual Washington lawyer/lobbyists that have much influence in the USTR to draft a report that could once again falsely condemn Canada as a rogue nation and a piracy haven, when the truth of the matter is that:

• Canada already has much stronger copyright laws in many ways than the USA;

• These stronger laws result in significant dollar outflows that greatly favour U.S. interests with little or insufficient benefit for Canadians;

• There is no verified and reliable evidence of piracy or counterfeiting problems in Canada that are any worse than in other comparable countries. In fact, the largest and most accessible market in North American for pirated and counterfeit consumer products remains the streets of mid-town and lower Manhattan;

• The alleged deficiencies in Canada's laws regarding file sharing have not been proven in any Canadian court and the music and film industries have taken no serious initiative to do so, despite having been given a green light to proceed by the Federal Court of Appeal in 2005. Instead, they lobby for US DMCA+ type laws. Indeed, much of the alleged copyright problem that the music industry complains about in Canada is a direct result of its own successful wish for a rich private copying levy, the result of which has included the effective legalization of music downloading in this country, according to comments by both the Copyright Board and the Federal Court. The music industry has proven only that it ought to be careful what it wishes for, not that there is any need to change Canadian law; and,

• The entertainment industry in Canada is doing quite well, even as things stand. As Michael Geist recently reported, “Nielsen Soundscan has just released the Canadian music sales figures for 2009. Notwithstanding the regular claims that the Canadian digital music market cannot develop without copyright reform, the Canadian market grew faster than the U.S. market for the fourth consecutive year.”

Here's where you can make a submission to the USTR.

Here's where you can use a Public Knowledge template and customize it :

More info here.

Canadian copyright law is actually much stronger than U.S. copyright law in many ways, some of which are worth quite a lot of money to the USA. It is worth noting as well that, for most of the last century, most copyright royalties in Canada have been flowing to American corporate interests. While stronger copyright laws may not always make for better public policy, they often result in significant royalty outflows to U.S. and other foreign interests. Here are some 21 examples of how Canada’s copyright law is already stronger than the U.S. regime:

1. Canada has about 36 copyright collectives, many of which have received substantial direct and indirect government subsidies. The U.S. has only about half a dozen, with no government support.

2. Canada has a full-time Copyright Board which has normally had four full time members plus a sitting or retired Judge as Chairman and currently about a dozen full time professional and administrative staff. The Board has enormous policy and, effectively, law making powers. No other country of which I am aware comes close to having such a large, permanent, powerful and full time copyright tribunal.

3. Broadcasters pay more for copyright royalties than their counterparts in the USA, much of it for rights that don’t even exist in the USA - for example the “ephemeral right.”The U.S. provides an outright exemption in 17 USC §112 for the “ephemeral right.” Now, about $50-million a year more over and above is being demanded by a collective dominated by the American dominated record labels for this right in addition to amounts now collected by composers, authors and publishers. Canada's Copyright Board heard a major case on commercial radio, where this and other issues will be decided, in December of 2008 and January of 2009. However, it will probably be at least 18 months to two years after the hearing before a decision is announced, based upon the timing of some recent major decisions from the Board.

4. The Canadian Copyright Board values each right under the Copyright Act brought before it separately, with little regard to the layering and multiplicity of tariffs that result, in effect, for the same transaction. Whether this is an error in approach by the Board, and/or in policy, and/or in legislative drafting or at all is subject to fair debate. But the fact is that U.S. law goes to great length to avoid such a result, as recent court decisions have confirmed.

5. Educators pay far more for copyright clearance than their American counterparts. There is simply no mechanism in place in the USA analogous to the excessive $5.16 per K-12 student or the excessive per student and course pack rates payable to Access Copyright for post secondary students. There's a similar mechanism for Quebec. Canada's Copyright Board has pushed back on what it considers to be fair dealing in the class room from what the Supreme Court of Canada arguably requires and American law clearly permits. (The Copyright Board's controversial decision is currently under Judicial Review, in which I should disclose that I am involved).

6. Access Copyright is trying to collect $24 a year for each full time employee in Canadian provincial and territorial governments, not counting Quebec. This is potentially a cost of $6.5 million a year for Canadian taxpayers, which seems absurd in view of the Supreme Court of Canada's CCH v. LSUC decision, since most, if not all, copying of protected material would likely be for research purposes. Nonetheless, a very expensive proceeding will slowly unfold before the Copyright Board and probably beyond into the Courts. Even with an unusual push by the Copyright Board to get this moving, it will likely drag on for years. Such a tariff or equivalent mechanism would never get off the ground in the USA for many reasons, including that state sovereign immunity is well established by the U.S. Supreme Court. There may very well be provincial crown immunity in Canada, but to what extent it will be invoked is currently unclear. At any rate, this new attempted tariff by Access Copyright has no counterpart in the USA and is yet another are in which U.S. copyright owners could prove to be better off in Canada than in their own country.

7. Canadian law requires payment for certain educational uses that are explicitly exempted in the USA, such as the performance of films in a classroom.

8. Canada has no explicit statutory exception for the performance of music for the purpose of selling sound recordings or audiovisual equipment, as is found in §110(7) of the U.S. Copyright Act.

9. Canadians pay large amounts to SOCAN and NRCC for performances in countless bars, restaurants, retail stores, and other small area business establishments. The U.S. notoriously exempts these establishments, contrary to a WTO “Section 110" ruling which the U.S. continues to flout. The U.S. is by far the leading adjudicated current violator of international copyright law.

10. Canada has very inadequate rights in place for distance educators. This results in higher costs and less access to such innovative education, which is the way of the future. The USA has a regime which, though far from ideal, represents a very serious attempt to deal with this new and important phenomenon.

11. Canada has “neighbouring rights.” The U.S. doesn’t. This translates into very big payments for record producers and performers. The Copyright Board has decided that these rights are worth as much in principle as performance rights for composers and authors, which currently generate well over $200 million per year. The limitation on eligibility for foreign neighbouring rights claims - which is probably already subject to much leakage - would simply disappear if Canada ratifies the WPPT.

12. Canadian movie theatres have to pay SOCAN for exhibiting films. NRCC is trying to get the same result. While these rights are normally bought out and cleared for Hollywood productions in the USA, and there is no further requirement to pay ASCAP, BMI or SESAC, Canadian law has thus permitted SOCAN to collect from theatres in Canada for showing the same films. SOCAN collected $881,000 for theatrical exhibition of films in 2005. Though not a huge amount of money per annum, this has been going on for decades. Guess where most of the money goes.

13. Canada has a rich blank media levy scheme that has generated nearly $300 million overall to date, most of which will wind up in the USA. Artists see at most about an average of $160 per year of this - and probably much less in reality on an average basis. The U.S. has never had anything comparable. (I've been involved in this issue for a long time).

14. Canada has moral rights for all types of works, as required by the Berne Convention. The U.S. doesn’t, with the limited exception of visual arts works. Any possible pretence that the USA provides moral rights generally through other means was put to rest by the U.S. Supreme Court in the 2003 Dastar decision.

15. Canada seriously respects the right of independent creators to own their copyright. The U.S. walks all over this with its broad “work for hire” doctrine that favours large corporations.

16. Canada long ago got rid of most of its compulsory licences, including the mechanical license for sound recordings. The U.S. still has this and many more, while it continues to preach to other countries against compulsory licenses.

17. Canada has no parody right/exception for creators and users. In fact, the Canadian Federal Court has explicitly ruled against such a right. On the other hand, the U.S. Supreme Court has confirmed such a right.

18. Canada has no time shifting exception that would clearly allow for legal use of DVRs/PVRs such as the TIVO in Canada. The U.S. has had this since the 1984 Betamax decision from the U.S. Supreme Court. Recent U.S. jurisprudence in the Cablevision case has extended this user right and this technology into “the cloud”.

19. Canada has crown copyright, which leads to all kinds of unnecessary costs and complications for those ranging from advanced researchers to fishermen, who should be able to depend on mapping and GPS information for life saving purposes from the government and not privatized for profit parties. Canada privatizes its government copyright for profit, which cannot happen in the USA. This has not necessarily led to more efficiency. In some cases it has been quite the opposite.

20. Canada has a lower threshold of originality than the USA and provides protection in some instances where the U.S. clearly would not. Canada has no counterpart to the U.S. Bridgeman v. Corel decision denying copyright in photographs of public domain paintings. Nor would a U.S. Court ever confer copyright in the simple idea of including a column of private sale prices for used cars in a three column layout in a booklet of used car prices with no copying of actual data, as the Canadian Federal Court of Appeal did in a 2000 decision that was based upon very inadequate arguments and is inconsistent with other Canadian jurisprudence both before and after, but which has not yet been explicitly overruled.

21. Canada's historic lack of compulsory registration and formal renewal requirements together with our very longstanding life plus fifty term has frequently resulted in a much longer duration of copyright protection for American works than is the case in the USA. A prime example is the music of Irving Berlin. This may be an unusual example because of Berlin's great age and importance, but he outlived his own copyright in his early pre-1923 compositions in the USA. However, copyright in Berlin's music will endure in Canada until 2039 for all of his works. There will also be a longer term in Canada than the USA for many older films that have long since entered the public domain in the USA where the term is normally calculated from the date of publication. In Canada, however, the term of protection is measured in terms of the life of the actual creator(s) plus 50 years.

I would hope that both the Canadian and American Governments are aware or become aware of the above points.

The danger from the “301" process is not so much any kind of retaliation or other direct action, which the WTO has outlawed, not that the USA would necessarily pay attention to that ruling. The real danger is that well meaning but non-expert officials and politicians on both sides of the border and even in other countries may be influenced by inaccurate and/or misleading findings by the USTR resulting yet again from the incessant spin, propaganda and lobbying at any cost by certain U.S. dominated industries. One has to ask what financial return is expected by these industries to justify the clearly enormous spending on Canadian and American lawyer/lobbyist and other high profile activity.

HK

PS:

I presented a paper about this at the 2008 Fordham conference entitled: Why Canadian CopyrightLaw Is Already Stronger And Better Than That Of The USA - And Why The USAShould Look In The Mirror Rather Than At Its “Special 301" WatchList.This has only 15 rather than 21 points but more analysis.  

Toyota and TPMs

Toyota is sticking (pardon the pun) to its supposed rights to control the TPMs in its cars' black boxes.

These boxes may contain useful information for plaintiffs in various lawsuits, not to mention regulators. But only Toyota can decode this information and "says it only makes the data available when requested to do so by law enforcement, federal regulators or by court order", according to the Wall Street Journal's Law Blog.

The obvious questions that now arise, such as whether we can trust Toyota to provide full disclosure of the decoded information, once again require that we ask whether any protection for TPMs is warranted in the absence of all necessary protection from them.

Indeed, maybe we need go even further to ask whether there are some situations - such as the use of TPMs in automobile black boxes - where such protection should actually be prohibited.

HK