My Response to Mihály Ficsor

Dear Mihály:

Thank you very much indeed for taking the time to respond so fully and so quickly to my post from yesterday when you are so busy and en route to Rio.

My points were not “ad hominem”. Indeed, in your case, I would be much more inclined to be on the “pro hominem” side. This is because I have known you for so long (at least 25 years) as a passionate defender of your very carefully researched positions, and as a man of unbelievable energy and extraordinary accomplishment.

Indeed, you were the catalyst and your writings were the main reason why I personally fought a very interesting and potentially very important court case in my own name at enormous expense in terms of my own time and that of my firm and another very fine law firm, over the refusal of a Canadian Parliamentary Committee to let me provide it with useful written documents on national treatment and private copying levies.

The most important document by far was a substantial excerpt (I assure you, however, that it was “fair dealing”) from your still indispensable 2002 book on “The Law of Copyright and the Internet” published by Oxford University Press - which can be purchased here.

The reason that the Committee refused to accept your material was, incredibly, that it was not in both English and French. And I had naively thought that Canada is a bilingual country - especially in our Parliament! The Committee, and later the Courts, however, took the view that “either” official language means “both” official languages and that the word “use” means the right to speak orally but not in writing. See here and here.

Unfortunately, I did not succeed in getting the Supreme Court of Canada to hear this case, which many believe was wrongly decided. My belaboured point here is that I not only would - but did - go to extraordinary lengths to get Canadian policy makers to consider your opinions.

As for the “lobbying” issue, I was certainly was not suggesting that you are or ever have been a “lobbyist” yourself. Indeed, there is nothing wrong with being a “lobbyist”. In fact, as they say, “some of my best friends are lobbyists”. I have the highest regard for Eric and Steve - even though I strongly disagree with them about their views on Canada and “Special 301" and have a hard time resisting any opportunity to say so, as my blog shows over the years, including yesterday. I’ve had a very civilized and public debate with Steve over this at Fordham. They are both real gentlemen and quite brilliant. That does not mean, however, that one cannot disagree with what they say.

It is obviously inevitable but still somehow sad that professional lobbyists have become so much a part of the copyright world. Indeed, the first Canadian Bill C-32 in Canada back in 1996 was said to be the most lobbied bill on any issue in Canadian history to that point in time - and I was reported (quite flatteringly but erroneously) to be one of the most active lobbyists at that time. The role of lobbyists in the current Bill C-32 is even greater. The involvement of lobbyists is inevitable, I suppose, because of the vast amounts of money involved, the strongly polarized views, and the difficult and technical nature of the subject matter, which requires great skill in communication and diplomacy to make it understood to those in government and the media.

As for my reference above to Greenberg, Traurig, I relied on the press release obligingly generated by Google but did not check the www.gtlaw.com site deeper to see if you are still listed, which you are not. Theretofore, I have struck this reference from my post from yesterday.

Thanks again, Mihály, for your thoughts. I, too, affirm our friendship and look forward to seeing you again at Fordham - where I hope that Canada will get some attention this year. Your concern about Canada and our difficult quest to modernize our copyright legislation - along with your views on everything else - will be, as always, of the utmost interest and importance.

Sincerely,

Howard

Don't Touch My Digital Junk: TPMs & Bill C-32 - Geist v. Ficsor

The great debate between Michael Geist and Mihály Ficsor over Bill C-32'a treatment of TPM’s and when and how they can be legally circumvented continues and, indeed, escalates.

The big issues include:

• Must C-32 address BOTH "access" and "copy" controls?
• Can there be a general exception for circumventing for non-infringing purposes, e.g. fair dealing?
• Should devices, software, or services that have substantial legitimate purposes be caught in the anti-circumvention net?

Prof. David Vaver points to links on both sides and suggests, quite correctly, that these materials are “mandatory reading” for all concerned. It’s too bad that David himself has not expressed his view on this debate, or other aspects of the Bill C-32 as far as I know. Hopefully, his decade at Oxford has not diminished his interest in Canadian copyright law and he will share his valuable insights before it too late for the public debate.

I do have some brief comments.

Mihály is a good friend and we have invited each other to important copyright conferences back in the 1990's. He is a major figure in the world of international copyright law and played a very significant role while at WIPO in the development of the 1996 WIPO treaties. I respect his decision since leaving WIPO to align himself with the IIPA and the key lawyers and law firms behind it. See here, here and here He is currently associated with Greenberg, Traurig, a powerful Washington law firm and the IP group led by Eric Smith, who is one of the key figures behind the IIPA.

The IIPA is the powerful Washington lobbying organization that is highly influential in the content of the notorious annual USTR “Special 301" report - which provides predictable and perennial negative commentary about Canada that our own Government says "lacks reliable and objective analysis". It includes the RIAA, MPAA, NMPA, BSA and ESA. But that’s another story and I have no reason to think that Mihály is involved in this aspect of IIPA’s work. He is not currently listed as one of the IIPA’s personnel.

To his credit, Mihály has been consistent on the issue of the need to provide both access and copy control protection for TPMs since his 2002 book. Indeed, there are aspects of his 2002 book I quite like but which may not suit the views the Canadian appendages of some of the IIPA’s major client/members, such as his vigorous insistence that remuneration from private copying must be dealt with on a national treatment basis both under the WCT and WPPT - i.e. both for authors and sound recording producers/performers. If Mihály is right on this point - and many in the Canadian government would agree with him - this is a real deal breaker for any form of “iPod tax”, since the "tax" would be almost exactly doubled and almost all of the hundreds of millions of dollars that would be collected - after paying for CPCC managers, consultants and lawyers, etc. - would leave Canada with almost nothing coming back in return. This would clearly not be good public policy. It would also be dreadful politics - a huge "tax on technology" with almost all of the proceeds leaving Canada. Subsidies, if absolutely need, would be far more efficient and far cheaper and could be kept entirely in Canada - though lawyers, lobbyists and collective managers wouldn't be happy for obvious reasons.

Michael Geist is also a good friend. He needs no introduction to Canadian or most foreign readers.

Anyway, back to TPMs.

Here is what the WIPO Copyright Treaty (“WCT”) says on TPMs, with similar language in the WPPT (producers and phonograms treaty):

Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

(Emphasis added)

As for his position on TPM’s, Mihály goes on at great length about the meaning of “adequate” and “effective” and “adequate and effective”. These are words - especially the word “effective” - that have little if any intrinsic or precise meaning in international IP law. In particular, the word "effective" refers to “procedure” (i.e. "remedies") - not substance. Canada will provide more than “adequate legal protection” and very “effective legal remedies” if we take an approach of permitting exceptions for non-infringing activity and provide only for copy control and not Orwellian and para-copyright “access control”. There is nothing in the treaties that requires protection of devices that are capable of substantial non-infringing legitimate uses.

The reason I say this is that I was asked to research the meaning of “adequate” and “effective” and “adequate and effective” in the context of the US Grokster case in the US Supreme Court. I co-authored the attached brief for a major amicus curiae, which showed, inter alia, that the word “effective” is used in TRIPs and otherwise to refer simply to procedural and not substantive matters.

Treaties should normally stand on their own without minute analysis and recourse to “preparatory work”, just as national laws, at the least in the case of Canada, will not normally require recourse to domestic legislative history, much less to treaties, in order to be interpreted by national courts. If the Canadian law is clear, it will be assumed to be consistent with the treaty that required its implementation, and that treaty will normally be interpreted, if the court even looks at it, at face value.

It's true that one can have recourse to the preparatory work that goes into treaties under certain circumstances set out in the Vienna Convention on the Law of Treaties:

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

It's not clear that such recourse is needed in this instance, but if it were, it would probably help Michael more than Mihály. For example, the early versions of the treaty language were replete with references to "devices" of which "the primary purpose or primary effect of which is to circumvent any process, treatment, mechanism or system that prevents or inhibits any of the acts covered by the rights under this Treaty." See here. Earlier versions of Article 13 of the WCT, which eventually became Article 11, contain language prohibiting devices that clearly isn't in the final text, incdicating the rejection of such an approach. Both Michael and Mihály rely heavily on the Vienna Convention to make their cases. Can they both be right?

What seems clear is that, for reasons that are not apparent, the Government is using language in Bill C-32 similar to that which was specifically rejected in the WIPO treaty making process - i.e. re "devices".

While David Vaver may be right that the wording of the treaties is hardly “pellucid” on this question, it is sufficiently lucid to have at least a clear base line meaning. The whole point is that Canada need not implement beyond that base line, unless it so chooses. And it would seem axiomatic that such meaning must be consistent with the normal canons of what constitutes “copyright law”. Otherwise, Canada and presumably most other countries had no mandate to sign such the WIPO treaties in the first place. Moreover, countries such as Canada with constitutions that specifically refer to “copyright”, may face constitutional challenges if they attempt to implement provisions that go beyond any reasonable conception of “copyright” law. For example, it’s one thing to prevent “copying” of a locked DVD in order to deter commercial piracy. It’s quite another thing to prevent “access” to viewing such a DVD simply because it was sold in India, sent here as a gift, but not region coded for Canada. Indeed, Heather Mallick makes this very point here in an excellent Toronto Star article.

Would we tolerate a law that prevents even the very “reading” of foreign printed books? Or the very “viewing” of foreign films? Would anyone say that this is law in relation to copyright? No - because it has nothing to do with “copying” and everything to do with restraint of trade, monopolization and perhaps even being an "an instrument of trade control not contemplated by the Copyright Act" in the words of Justice Fish of Canada’s Supreme Court in the Kraft decision.

I am not impressed by pointing to other countries such as Australia that have implemented these treaties in a manner more less dictated by the U.S.A. The Australian decision to toss out an earlier version of WIPO implementation that featured only "copy control" and to embrace a version dictated by American trade negotiators was controversial and the government of the day paid the ultimate price for this and other examples of following American direction contrary to Australian interests. There are many excellent aspects of US copyright law - but the TPM measures of the DMCA are not among them. For reasons that are unclear, Canada’s proposals as they now stand are even more restrictive and harmful to consumers and even to creators themselves. Again, see Heather Mallick, who is hardly alone in being both. At any rate, Michael Geist's analysis points to several countries, including Japan, Switzerland, and several EU members that have minds of their own and availed themselves of available flexibilities under the 1996 WIPO treaties.

All in all, an approach such as that advocated in the Liberal Government's Bill C-60 would seem to be not only wise but perfectly safe in terms of international trade law, not that there is any foreseeable risk or indeed any mechanism for a trade-challenge on this issue as international law currently stands. While I am in no way advocating the adoption of a Canadian law in contravention of the WIPO treaties, it should be noted that they curiously contain no dispute resolution mechanism. This is ironic, since the US efforts to undermine IP multilateralism make any revision of the WTO TRIPs agreement, which could conceivably bring the 1996 WIPO treaties into a dispute resolution arena, very unlikely in the foreseeable future. It is further ironic because the USA has deliberately shirked its obligations respecting moral rights under Berne Convention by managing to get them exempted from dispute resolution under TRIPs.

I am assuming that Prof. Geist’s interest in this issue is purely academic and independent and not funded by any commercial interest. His recent book chapter did get funding from the usual academic sources, which have no commercial strings attached.

Mihály’s "interest in the Canadian experience" and his recent lengthy writings about it, which are frequently relied upon by Canadian lobbyist Barry Sookman and his junior associate, Mr. James Gannon, are also said by Mr. Gannon to be "purely academic".

HK

Some Common Sense at Bill C-32 Committee Hearings

Sarah Schmidt is reporting that the C-32 Legislative Committee will meet only for four hours a week, not the 16 hours suggested by the Government members. This means that that the Bill cannot get through the House of Commons until well into next year.

The reports that the Government intended to wrap this up in the House of Commons Committee by Christmas were quite disconcerting. There is no way that the dozens of interested parties who have essential viewpoints to contribute could have been heard and been fully and fairly considered in less than a month. Even the first Bill C-32, which was a bad (though much less complex and controversial) bill and which was made worse in Committee under a strong majority government received far more lengthy attention in 1996-1997. Ramming the current Bill C-32 through Committee in less than one month would have been seen to lack any credibility or even legitimacy.

HK

Access Copyright - Responding to Copyright Board by November 23, 2010

The Copyright Board issued a procedural ruling on November 15, 2010, though there are elements of it that are rather inconclusive. Here are my initial comments on it. It talks about “being inclined”, etc.

Here’s what those in various categories created by the ruling may wish to do. This is NOT legal advice. As always, if you want legal advice, retain a lawyer.

1. Those apparently singled out for full fledged objector status should indicate to the Board whether they believe that others should be permitted to be intervenors with full rights of participation and otherwise respond to the Board as invited, i.e. ““may make their views known on the participation of the potential intervenors no later than Tuesday, November 23, 2010. They are asked not to deal with issues of duplicative representation or overlapping argumentation at this stage. These matters will be addressed later, when the intentions of all participants are more fully ascertained.”

2. Those who the Board is “inclined” to consider as “intervenor status with full participatory rights” (“ISFPR) should specifically notify Gilles McDougall - Acting Secretary of the Board - that they wish to avail themselves of such rights i.e. “Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010". They may also wish to indicate that they do so without prejudice as to any arguments as to whether they should be full fledged objectors. These persons may wish to express their view on why they do not seem to qualify as full fledged objectors. In this respect, see Prof. Ariel Katz’ very useful submission to the Board dated November 21, 2010 available here. He is a copyright law professor at the University of Toronto Faculty of Law, who is focusing his knowledge of IP and antitrust law on collectives, and at the moment on AC. Note that he has indicated that the Board should provide adequate reasons why he is not being accepted as a full fledged objector. See CAB v. SOCAN 2006 FCA 337 at para. 11.

3. Those in respect of whom the Board has indicated that its “preliminary opinion that the participation of the following persons would not be of assistance” may wish to indicate, if it is the case, why they believe that this “preliminary opinion” is wrong and demand that the Board provide adequate reasons in each and every case. (see above).

4. Note that there is no downside to remaining involved at this point for any individual or association. Unlike civil litigation, one can always withdraw later without being liable for the costs of other parties. It is very likely that AC will attempt to impose “interrogatories” (written questions akin to "discovery") on those who wish to remain involved that will be arguably be unduly onerous and irrelevant. Hopefully, the Board will deal with this in the appropriate fashion. The amount of time required to be present at the ultimate hearing could also be a problem for some. Hopefully, the Board will fashion its hearing schedule to accommodate the needs of individuals who may still be involved at the hearing stage and who may not be able to be present for a hearing that could last two or three weeks. Individual objectors or intervenors may wish to begin to organize themselves to deal with such issues.

HK

Access Copyright’s Proposed $45/$35 Tariff - My Comments the Board’s Ruling on Status of the "Group of 99"

The Copyright Board has issued one of its more interesting and important procedural rulings in recent memory with respect to the status of 99 of the 101 objectors that Access Copyright (“AC”), through its former counsel Barry Sookman, had sought to eliminate from the pending post-secondary $45/$35 proposed tariff.

In a nutshell, the Board has:

- Confirmed (subject to unspecified future concerns about “duplicative representation”) the “objector” status of Athabasca University and the British Columbia Association of Institutes and Universities (BCAIU)

- indicated that. with respect to the Government of Alberta and teachers, students and staff from the targeted institutions in the proposed tariff that is “inclined to grant them, if they so wish, intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors”

- ruled, with respect to approximately 38 individuals ranging from parents (those paying the bills of students) to post doctoral fellows that their “participation ... would not be of assistance”

- left in limbo the status of CAUT and CFS (representing university teachers and students respectively), which are represented by CIPPIC (the U. of Ottawa public interest legal clinic) and refused, for the time being, their request to “bifurcate” this hearing in a similar manner to what was done in SOCAN’s perpetual Tariff 22 tariff proceeding - i.e. separate out certain legal issues that presumably do not involve disputed or extensive evidence

- indicated that AC, AUCC, ACCC, Athabasca and BCAIU “may make their views known on the participation of the potential intervenors no later than Tuesday, November 23, 2010. They are asked not to deal with issues of duplicative representation or overlapping argumentation at this stage. These matters will be addressed later, when the intentions of all participants are more fully ascertained.”

- Indicated that “Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010"

- asked for clarification by November 23, 2010 from Ambrose University College and the Library, St. Mary's University College and the Library, Yellowhead Tribal College and the Library as to whether it is the institution or the library that is objecting

The Board’s ruling is certainly a blow to AC, which had sought to get rid of all but two of the 101 objectors, the two being the AUCC representing university management (here is the AUCC’s objection, which is noticeably less vigorous than that of many other established institutions) and the ACCC (representing the community colleges of Canada).

The ruling, however, is not all good news for all of the “Group of 99". The status of those who have not been eliminated is still somewhat in limbo. Is the Board’s indication that it is “inclined” to grant “full participatory rights” to intervenors so wishing the same a "ruling" that it will grant such rights? Does “full participatory rights” include the right to cross examine AC’s witnesses, including expert witnesses and challenge its survey evidence? Will intervenors have the right to adduce their own expert and other evidence? One would certainly hope so in both respects. What does “present oral argument at the end of the hearings” mean? Surely, “full participatory rights” would include the right to make oral submissions as the hearing progresses in the same manner as other parties, subject only to the Board’s prerogative to ensure an orderly, efficient and fair process.

One would assume that “full participatory rights” should mean all the rights and responsibilities of an objector. But some are less than convinced that this is the case. One very sophisticated objector who has now been classified as an “intervenor” has suggested to me that the Board has created a “separate but equal” regime.

In fairness to the Board, it has to be concerned with conducting a process leading to what could be a lengthy hearing that cannot be allowed to become chaotic. However, that potential problem is invariably self-correcting, since few persons or institutions other than those with pressing interests and sufficient resources will remain involved throughout the lengthy and exhausting process. AC will almost certainly try to wear down any “intervenors” with onerous interrogatories of questionable relevance. This is how the game is played at the Board. Hopefully, the Board will manage to ensure ongoing fairness in the process. AC’s new counsel, Mr. Hofley, and I have been down this road before in the private copying file, in which there were 3,500 initial objectors.

Presumably, the logic of the Board in this ruling was dictated to some extent by the wording of the legislation which requires that objectors be “prospective users.” See this letter to the Board from Prof. Ariel Katz of U. of T. Faculty of Law, who was a timely objector but has now been classified as an intervenor, dealing with some of the issues surrounding status and who should be considered as a proper objector. This submissions in this letter weren’t referred to by the Board in its reasons, even though AC’s submissions (see here) were.

Very likely, many of the objectors who wanted to remain involved didn’t even realize that a ruling such as this was in the works, unless they read my blog. This should not be the case. The Board should ensure that all parties potentially affected by a decision have sufficient notice of their right to make submissions. I trust that this will be done with respect to the ultra-controversial attempt by AC to impose an interim tariff that would render a voluntary, obsolete, overpriced, and expired agreement into a supposedly legally binding “interim tariff” with the force of law for years to come - that is if AC, with its new counsel, still intends to proceed in this direction.

AC no doubt hopes that parties will sign its “interim agreement” in the meantime, as the supposed deadline of January 1, 2011 looms. However, this deadline has effectively been imposed by AC itself, and the “interim agreement” does not even provide a license. It simply requires ongoing payment and an agreement to accept whatever the Board ultimately decides. There is no apparent reason why any institution would sign on to this and even AUCC seems to so agree.

Is yesterday’s decision correct in all respects? Maybe or maybe not. The reality is that it is very difficult to seek judicial review (i.e. “appeal”) interim procedural rulings of the Copyright Board. The Board will almost always prevail in these situations. However, in this instance, one hopes that that Board will treat any committed “intervenor” as indeed having “full participatory rights”, if the “intervenor” so chooses and that AC will not be permitted to unfairly inflict unduly onerous and irrelevant interrogatories or other barriers to such participation.

So - here’s what the survivors of the “Group of 99" need to do immediately.

- Answer the Board as required by November 23, 2010.

- Make the Board aware, assuming that it is the case, that they wish to be heard on the question of an interim tariff. If they wish to make oral submissions, which is not unreasonable considering the enormous amount of money and the issues at stake, objector and intervenors should make the Board so aware as soon as possible.

HK

Access Copyright's Proposed $45/$35 Post Secondary Tariff - Board Rules on Status of 99 Objectors

Here's the Board's ruling from earlier today, which was issued in both official languages. My comments will follow in a subsequent blog.

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

NOTICE OF THE BOARD

On September 22, 2010, after having examined notices of objection filed in this matter, Access Copyright agreed that the Association of Universities and Colleges of Canada (AUCC) and the Association of Canadian Community Colleges (ACCC) qualify as objectors in these proceedings. It argued that Athabasca University and the British Columbia Association of Institutes and Universities (BCAIU) were duplicating the representations of AUCC and ACCC and should not be qualified as objectors. Finally, it requested that all other persons who filed notices of objection not be given objector status by reason that since they are not targeted by the proposed tariff, they are not "prospective users" within the meaning of subsection 67.1(5) of the Copyright Act.

The Board finds that AUCC, ACCC and, setting aside for the moment the issue of duplicative representation, Athabasca University and BCAIU, being targeted by the proposed tariff, are proper objectors. Having read all the notices, the Board is also of the preliminary opinion that the participation of the government of Alberta and of teachers, students and staff from the targeted institutions in the proposed tariff would enrich the record of these proceedings and assist the Board's deliberations. As such, the Board is inclined to grant them, if they so wish, intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors. To the extent that the contemplated status is granted, it is not necessary to rule on whether these persons are proper objectors.

Access Copyright, AUCC, ACCC, Athabaska University and BCAIU may make their views known on the participation of the potential intervenors no later than Tuesday, November 23, 2010. They are asked not to deal with issues of duplicative representation or overlapping argumentation at this stage. These matters will be addressed later, when the intentions of all participants are more fully ascertained.

Intentions of Participants

Potential intervenors who filed a notice of objection only to ensure that their point of view would be taken into account may find it unnecessary to be further involved in these proceedings. The Board will treat their notices as letters of comment. As such, they are part of the official record of these proceedings. Access Copyright has received a copy of them. The Board members who will hear the matter will consider them before reaching their decision. Those persons are still permitted to consult the public record and to comment in writing on any aspect of the proceedings until the date set for the filing of final arguments.

Those who wish to remain as intervenors with full participatory rights will be treated as any objector. They will be entitled to receive a copy of all the evidence and arguments to be filed by all participants. They will also be entitled to address questions to other participants (in the form of interrogatories) and will be required to answer questions addressed to them, as long as they are relevant. They will have to file a statement of case, and will be entitled to call witnesses, file evidence and present oral argument at the end of the hearings.

All participants will be required to comply with the timetable that will be set for these proceedings and with the directive on procedure that will be issued in due course. A model directive is available on the Board's website at the following address: http://www.cb-cda.gc.ca/about-apropos/directive-e.html.

Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010.

Request for information

The following institutions have sent notices of objection on behalf of both a post-secondary institution and its library. The Board needs to obtain, by no later than Tuesday, November 23, 2010, clarification and confirmation as to which one of the two is being represented.

Ambrose University College and the Library

St. Mary's University College and the Library

Yellowhead Tribal College and the Library

Possible Exclusions

The Board is of the preliminary opinion that the participation of the following persons would not be of assistance:

Aburto, Juan

Akrigg, Mark

Bannerman, Sara

Bouchard, Paul

Caswell, James

Cooper, Alan

Creighton, Angus

de Alwis, Brian

Donovan, Pat

Finney, Nik

Gilbert, David

Guy, David

Harris, Sandy

Heesen, Erika

Humphries, Graeme

Kittredge, Rob

Koblovsky, Jason

Konefal, Tomasz

Lam, David

Lavender, Graham

Liota, Cohen

McMullen, Greg

Mitchell, Pauline

Neufeld, Ryan

Neufeld, Jacqueline

Pitt, Richard

Raby, Olier

Schigas, Marnie

Schigas, Roland

Schopf Loach, Cassandra

Scott, Steven

Solman, Grayden

Stevenson, Adrienne

Thompson, Kyle

Vu, Tom

Wall, Darren

Watt, Seth

Weber, Stephen Paul

Persons named above who wish to be granted intervenor status in these proceedings are asked to indicate the extent and nature of any association they may have with any post-secondary educational institution outside of the Province of Quebec targeted in the proposed tariff, also no later than Tuesday, November 23, 2010. The Board will then rule on these applications after giving other participants in these proceedings the opportunity to comment on the applications. Notices of objections filed by persons who are not granted intervenor status will be treated as letters of comment and will be made part of the official record of these proceedings.

Finally, Mr. Degen's letter in support of the proposed tariff will be treated as a letter of comment.

Application to Bifurcate Hearings

In their joint notice of objection, the Canadian Association of University Teachers (CAUT) and the Canadian Federation of Students (CFS) requested that the examination of the proposed tariff be bifurcated into a legal phase and an evidentiary phase. CAUT and CFS challenge the validity of certain definitions as well as the right of Access to impose certain terms and conditions or to prevent certain uses. They contend the proposed tariff targets unprotected uses and ignores certain exceptions or users' rights. They do not specify which questions, in their opinion, would justify splitting the process leading to the certification of a tariff.

The application is premature at best. Furthermore, based on the information currently available it is highly doubtful that splitting the examination of the legal questions from the substance of the tariff makes sense in this instance. Some of the issues raised by CAUT and CFS will require not, as they suggest, a minimal evidentiary record, but extensive evidence, most of which will in all likelihood also be relevant to the determination of the amount of the tariff. Finally, many of the issues raised deal with the terms and conditions of the tariff. Nothing will be gained by dealing with those issues before having some idea of how the core of the tariff will be structured.

For the time being, the application is denied. These matters can be revisited, if needed, in due course.

Gilles McDougall
A/Secretary General | Secrétaire général par int.

Copyright Board of Canada | Commission du droit d'auteur du Canada
56 Sparks, Suite| Bureau 800
Ottawa ON K1A 0C9
Telephone | Téléphone 613.952.8624
Gilles.mcdougall@cb-cda.gc.ca

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

HK

Access Copyirght Changes Counsel in Proposed Post-Secondary 1,300% Increase Tariff

Access Copyright (“AC”) has notified the Copyright Board of a change of counsel in the proposed post-secondary 1,300% increase file.

Barry Sookman and McCarthy’s are apparently no longer involved and AC will now be represented by Randall Hofley of Blakes.

Mr. Hofley has previous experience at the Copyright Board with matters having to do with AC.

During the first year of the AC K-12 tariff file at the Copyright Board beginning in 2004, he acted for the provincial government interests against Access Copyright. Since 2009, he has been acting for Access Copyright against the provincial interests in AC’s proposed $24 per full time provincial government employee tariff.

Now, he is acting for AC in its in its proposed post-secondary 1,300% increase file.

HK

Oops, The Star Did It Again. Sorry, Michael Enright.

Even if Michael Enright uncharacteristically fell off his podium of intellectual rigor and journalistic neutrality today by calling The Star the "best newspaper in Canada", it sure isn't when it comes to copyright editorials.

For the second time since August, The Star has run a clearly misinformed and inaccurate editorial on copyright revision that strongly indicates the influence of lobbyist disinformation - quite possibly from another well known tenant (the name of which is similar to this blog) at One Yonge Street in Toronto, which is also home to The Star.

Here's what The Star says, for example, on one issue:

• Under the “fair dealing” section, there is far too broad an exemption for the copying of works for educational purposes. The government was lobbied heavily by educators and provinces, who said they needed more flexibility in the use of copyright material. As a result, the bill would allow anybody to copy anything — textbooks, novels, instructional manuals and so on — as long as it is labelled “education.” The opposition parties are understandably seeking changes in the language of this section.

(emphasis added)

That is simply and blatantly completely wrong, to the point of being inflammatory, seriously misleading and irresponsible. Even if the proposed inclusion of the word "education" is passed by Parliament, any "dealing" would have to pass the six part fairness test laid down by the Supreme Court of Canada. And unless the recent arguably clearly incorrect decision of the Federal Court of Appeal in Province of Alberta v. Access Copyright (in which I acted for an intervener and which is also apparently clearly inconsistent with another recent case from that Court) is overturned by the Supreme Court of Canada, Canadian educational institutions at all levels and their students - not to mention Canadian taxpayers - will be profoundly disadvantaged, especially compared to their American counterparts - regardless of whether the word "education" survives the lobbyists' attacks in Parliament.

There is no point in writing a letter to the editor of The Star on this issue. They wouldn't publish my last one, which was quite measured.

There seems to be something is in the water at One Yonge Street in Toronto when it comes to Bill C-32, and it's not healthy for accuracy in journalism, much less credible editorial policy or good public policy.

Sorry Michael Enright. You picked the wrong day to make such a categorical statement.

HK

Bill C-32 Brief from the Canadian Federation for the Humanities and Social Sciences

Here's a thoughtful and important brief on Bill C-32 from the Canadian Federation for the Humanities and Social Sciences, which represents more than 50,000 researchers in 72 scholarly associations, 75 universities and colleges, and 6 affiliates, the Canadian Federation for the Humanities and Social Sciences is the national voice for the university research and learning community in these disciplines.

Here's the Executive Summary:

Bill C-32, the most recent legislation proposed to amend the Copyright Act, sets out several changes that would achieve a more fair and balanced approach to copyright. Our community commends several proposed amendments in Bill C-32, including the expansion of the definition of fair dealing to include parody and satire, and the amendment stating that an individual does not infringe copyright when using existing copyright-protected material in the creation of new work (provided that certain conditions are satisfied).

At the same time, we believe there are some areas of the Bill that would greatly benefit from minor adjustments. The following document contains recommendations that we believe will strengthen Canadian copyright law. In particular, we recommend that two general changes should be adopted: first, that the phrase “such as” or “including, but not limited to” be included in the list of fair dealing exceptions; and second, that with regards to technological protection measures (TPMs), it is only an offence to circumvent a TPM for infringing purposes.

In addition to these general changes, the Federation also recommends the following changes to Bill C-32:

- Libraries, archives and museums should be allowed to retain intermediate copies for the purpose of maintenance;

- Libraries, archives and museums should be allowed to copy items licensed for individual use for the purpose of preservation;

- Constraints on interlibrary loans should be removed;

- Impairment of a TPM should be allowed in adapting works in any format or medium for persons with perceptual disabilities;

- The requirement to destroy course materials 30 days after students receive their final course evaluations should be removed;

- The requirements for control and monitoring of digital teaching materials should be struck;

- Such phrases as ‘has a reprographic reproduction licence’ should be expanded to ‘has an agreement with the relevant rights holder(s) or has a digital reproduction licence’;

- Private educational institutions and their associated libraries, archives and museums should be included within the definitions of “educational institution” and “library, archive or museum”;

- Bill C-32 should explicitly specify that private study legitimately involves ‘performing’ or otherwise displaying or using copies in the presence of others;

- A general research exception to Bill C-32’s anti-circumvention provisions should be included with regards to TPMs;

- Anti-circumvention provisions should be accompanied by stipulations concerning the feasibility of circumvention options and clear visibility of notices regarding TPMs; and

- Crown copyright should be abolished.

HK

C-32 to be rushed through House Committee before Christmas?

The Wire Report (subscription needed) is saying:

Industry insiders say the Conservative government wants to finish with the committee study of the bill before the Christmas break. Sources say that means the committee will have to manage its time to work efficiently and may need to limit the number of witnesses.

(emphasis added)

Hopefully, the part about finishing before Christmas is is not true.

The first Bill C-32 was introduced in 1996. There were extensive hearings from September, 1996 to April, 1997. There was a strong majority government. That Bill was much simpler and far less controversial. There was no such thing as Facebook and blank audio cassettes were considered to be high tech. 3.5 inch floppy discs were still in big use. Internet access was via dial up modem. Napster didn't exist. And Michael Geist was just getting started in academia.

Even with the rushed and and highly manipulated back room machinations in both the House Committee where a bad bill got much worse and later in the Senate Committee, the Bill took a year from start to finish to become law. That still wasn't enough to prevent a very bad taste in many mouths that lingers to this day.

There are a lot of ingredients in the current C-32 stew. It must be cooked carefully and at the right temperature for the right length of time. Otherwise, it could boil over into a very big mess - which would serve nobody's interest and be very hard to clean up.

This Bill can be adequately dealt with in the House Committee by Christmas - but not Christmas of this year.

HK

A Short Quiz: Guess the Source of this Fair Dealing "Guidelines" Document

This document purports to provide "guidelines" to Canadian universities about fair dealing. Readers may be interested in guessing when and from where it emanates. I shall provide two important hints.

Hint #1:

The source is one of the following:

- Access Copyright (“AC”)

- Association of Universities and Colleges Canada (“AUCC”)
- Canadian Association of Research Libraries ("CARL")
- Council of Ministers of Education Canada ("CMEC")

Hint #2:

The landmark Supreme Court of Canada decision dealing with fair dealing, namely CCH. v. LSUC, was rendered on March 4, 2004.

This document begins as as follows:

Fair Dealing Policy

I. Copying Guidelines

1. Except where otherwise stated, these guidelines apply to the making by a university [of] a single copy from a work protected by copyright for the purposes of private study or research [sic] in circumstances in which the consent of the owner of copyright has not been secured and is not required by reason of the fair dealing exception in the Copyright Act. Permission from a copyright holder may be required where the copy falls outside of these guidelines.

A few preliminary notes:

- The correct phraseology is “research or private study” and NOT “private study or research.” The phraseology as above (i.e. “private study or research”) is simply wrong. We amended the legislation a long time ago to make the word “private” modify the word “study” and not the word “research”. Details such as this can matter very much in court cases and clearly do matter in the context of the university.

- The document is not even internally consistent on the foregoing point. At one point, it uses the correct phrase “research or private study”.

- I’ve highlighted some of the more restrictive points on what is supposedly permissible according to the document.

Readers are asked to guess who penned the linked document and when it was written. Guesses and comments can be posted below, anonymously if so wished. Even I won’t know who is the source of the comment, if provided anonymously. As always, I will block or remove defamatory, tasteless or baseless comments. Be constructive.

HK

The “Group of 99", Access Copyright and the Copyright Board - Another Update

Since my last update on AC’s proposed post secondary Tariff that features a 1,300% increase and charges for linking, displaying, etc. and extraordinarily privacy invasive reporting requirements, some further questions have arisen concerning the nature of interim tariffs and what the rights may be of those institutions that signed interim agreements. Once again, I remind readers that this blog is not legal advice. As the wise Prof. Mark Lemley might say, “if this were legal advice, it would be followed by a bill”.

INTERIM AND APPROVED TARIFFS

Where there is an “approved tariff” in place as certified by the Copyright Board, it is enforceable as such, provided that the user is one caught by the tariff and can be shown to have used, in a manner covered by the tariff, any work that is in adequately in the repertoire of the collective seeking to enforce the tariff. Such a user could be forced by a Court to pay the unpaid tariff. In the case of SOCAN and Re:Sound (i.e. collectives that fall within s. 67 of the Copyright Act, which means “performance” and “communication” rights collectives), the collective may recover statutory minimum damage in an amount between three and ten times the amount due under the tariff. This statutory minimum damage provision does NOT apply to AC, since it is not a collective that falls within s. 67 of the Act. That is one important thing less to worry about.

Naturally, use of only repertoire duly licensed other than through AC, or not requiring licensing at all because the use constitutes fair dealing, etc. should serve to keep an institution outside of the reach of AC.

But Access Copyright, even though it doesn’t have an “approved tariff”, is now seeking controversial “interim relief” in the form of an “interim decision” or an “interim tariff” as it would more accurately be called. However, it is very questionable whether the Board has jurisdiction to impose an “interim tariff” in this instance. An “interim tariff” is arguably quite different than an “interim decision” as provided for in s. 66.51 of the Copyright Act . In any event, there is an argument that an “interim tariff” does not have the same mandatory effect and is not enforceable in the same way that an “approved” tariff would be.

In any case, even if the Board does have the jurisdiction to impose an “interim tariff” as sought by AC, the Board’s own precedents strongly suggest that it should not do so in this instance. For one thing, there is no previous tariff in place - only a voluntary agreement that has long been clearly obsolete in everyone’s view. Any college or university could have choose to refrain from using the standard agreement. This has been done and there have been no law suits as a result. There is absolutely no reason to suddenly confer on an obsolete voluntary agreement the force of law for a likely minimum of five years (not counting judicial review) that the proposed tariff will take to resolve at the Board. Not to mention predictable subsequent judicial review and a possible Supreme Court of Canada hearing.

For another thing, it seems rather inappropriate for AC to seek to force colleges, universities, libraries, students and others to directly or indirectly fund its multimillion dollar campaign at the Copyright Board to extract a 1,300% increase in the basic amount currently paid and to license rights and repertoire for which it may have no basis. It will have plenty of other revenues, at least for a while, given the essentially non-confrontational approach taken by many licensees and objectors to date. There is nothing to stop AC from trying to get a bank loan, like any other business that seeks aggressive expansion and will need to incur significant legal costs in so doing.

The very idea of imposing an interim tariff on objectors to provide interim funding to a wealthy party for a clearly controversial and arguably ill founded Copyright Board proceeding can, in any case, be most politely characterized as bizarre. This would never happen in a court, where the Supreme Court of Canada has laid down that interim cost awards are made only in the rarest of circumstances involving severe inequality between litigants and matters of great public interest. Here, the inequality works strongly in favour of Access Copyright.

If a Court would not look at providing interim funding, directly or indirectly, in a case such as this, it is an even less tenable request at the Copyright Board, which is not a court and has only the specific and limited powers given to it by Parliament.

Ironically, if the Board believes that it can force objectors to fund a tariff application, it would make much more sense for the Board to force the tariff applicant to fund the objectors in the appropriate circumstances, as the CRTC does. However, the Board does not have the explicit power to do either of these things. The Board has indicated great reluctance in the past to even think about forcing collectives to fund objectors and would almost certainly not even think about the prospect now unless required to do so by the Court or by Parliament. This is something to consider for future copyright revision - or maybe even for Bill C-32, if the Legislative Committee agrees to take this issue on. But that is not likely. The Committee will have plenty of other issues to worry about. Needless to say, established collectives and, very likely the Board itself, would strongly oppose such a measure in any event.

I am told that AC has not notified many if not most of the 99 of the 101 objectors it seeks to eliminate from this proceeding about its desire to get them to fund its tariff application or of its request for an interim tariff. Many objectors apparently have learned about it only by reading this blog. This raises serious fairness, natural justice and even jurisdictional issues. Hopefully, the Board will deal with these issues correctly - which would presumably NOT include first kicking out the 99 objectors as AC has so asked.

In any event, AC has not provided any affidavit evidence concerning its alleged financial plight or the “deleterious effects” it would face if this interim tariff is not granted. One would expect an abundance of such evidence in order to sustain a request for interim, discretionary and, in effect, equitable relief in these circumstance involving so much money and matters of such great importance.

Timely objectors in the “Group of 99" should make their views known as soon as possible and insist, if so wished, on their right to present their views in an appropriate manner on these fundamentally important jurisdictional issues.

There is a strong argument here that the Board should convene an oral hearing to deal with these important questions of procedural fairness or natural justice and jurisdictional issues.

INTERIM AGREEMENTS

On another front, what are the options of those few institutions who have signed AC's "interim agreement"? That agreement provides that the institution agrees to be retroactively bound by whatever the Board ultimately certifies and provides NO license in the meantime. I frankly don’t know why any institution would sign this agreement, and even AUCC seems to agree.

However, I seen no reason why any institution that may have signed such an agreement, if it has also filed a timely objection at the Copyright Board, could not continue to pursue that objection. It would be astonishing if AC were to argue that the institution had waived its right to object. And if even if it has not filed a timely objection, nothing prevents that institution from contributing to the efforts of others through a coalition to fight AC or for that institution to seek leave to intervene.

More on possible interventions to follow in due course.

HK

Querulous Quote of the Day re Bill C-32 re "capacity of the Conservative party to hate people who make art"

The querulous quote of the day re Bill C-32 goes to David Basskin, a Director of the CPCC and CEO of CMRRA. Here it is from itbusiness.ca:

"The way the bill is written, we could never again be compensated for these copies, we don't think that's fair," says David Basskin, a director with the CPCC. "We're really at a loss to understand the capacity of the Conservative party to hate people who make art."

(emphasis added)

Recall, as I pointed out on March 16, 2010, based upon CPCC's own figures, with respect to this "nonsensical" "tax", as the Government calls it:

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.

So who exactly is denying artists their due? The point is that there is resistance to inefficient collectives that do little or nothing for "people who make art", yet do a lot to the extent of millions a year to to benefit a small number of managers, consultants and lawyers who are associated with the collective. In this instance, the Government is speaking for a very large number of people - including the countless artists who have received very little if anything from a costly and very inefficient levy regime that made little sense in the age of the analogue cassette and makes no sense in the digital iTunes age. Not to mention millions of individual, corporate and institutional consumers who have never copied music but have paid hundreds of millions of dollars in the form of "levies' which are regarded by this Government and most Canadians as "taxes".

A $75 "tax" on iPods, smart phones, etc. - which is the latest amount officially sought by the CPCC - would simply perpetuate a bad business model that will cause massive problems in the Canadian electronics, retail and wireless sectors (for starters), and do less than nothing for most working artists. True, it would work out very well for a small group of managers, consultants, lawyers and lobbyists who strive to keep the levy alive.

True, some publishers and record companies do get more than beer money out of this regime. However, member collectives of CPCC, such as SOCAN and CMRRA, also deduct their own administrative costs or overhead charges on whatever eventually flows from CPCC through them to the "people who make art." We don't know how much gets through to individual "people who make art" because there is very little transparency concerning this system. The Copyright Board leaves such issues to the internal workings of the collectives, which is to say, once again, that there is very little transparency as to how the distribution mechanism works overall - and virtually none at the level of individual "people who make art."

The Copyright Board also seems to think that a levy on iPods, etc. would be a good idea - and has twice tried and failed to impose such a levy. I have been involved in both successful attempts to quash such a levy. The Chairman of the Copyright Board has recently stated with respect to the first decision of the Federal Court of Appeal ruling that the Board lacked jurisdiction to impose such a levy:

Did it impede the orderly development of the private copy regime? Yes. That judgment had far reaching effects on the marketplace. It created market uncertainty, made the daily innocent activities of ordinary consumers illegal and helped to ensure that the regime would become irrelevant as new technology changes the way consumers copy music. An additional and predictable result is that in excess of $50 million in royalties have not flowed to authors, composers and performers.

In my view, an iPod levy will be a great disservice to most "people who make art". Among other reasons, it would be a policy substitute and a poor one at that for the grants, subsidies, cultural funds from collectives and other sources of funding that such people - especially emerging Canadian artists - need and deserve. Copyright collectives hate such talk because such payments are not subject to national treatment, do not benefit the foreign interests that ultimately control the major Canadian collectives, and are not subject to collectives administration overhead or administrative costs - which range from about 10% to 25%. Successive Canadian governments of all stripes fought hard and successfully to preserve Canada's cultural sovereignty with respect to grants and subsidies. It's time we asserted it

HK

UK to adopt US "Fair Use" doctrine to be more "Googly" and Innovative?

The UK Prime Minister has announced that England will study the adoption of use "fair-use" style laws in order to encourage Google type innovation.

Here's an excerpt form an important announcement:

The second new announcement I can make today is to do with intellectual property.

The founders of Google have said they could never have started their company in Britain.

The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States.

Over there, they have what are called ‘fair-use’ provisions, which some people believe gives companies more breathing space to create new products and services.

So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age.

I want to encourage the sort of creative innovation that exists in America.

So - as I've often asked, why should Canada adopt the bad features of US law, such as statutory minimum damages, and be considering DMCA plus TPM protection and not the good features, such as "fair use", especially for education?

Section 107 of the US Copyright Act provides:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

(emphasis added)

HK