Making Available Right Found Not to Exist By District Court in Arizona

REVISED

A District Court Judge in Arizona has found in a clearly reasoned and well briefed decision in Atlantic v. Howell in (Bravo EFF!) that merely making a work available by leaving it in a shared folder does not infringe copyright under US law.

In my original haste to post on this, I got a bit mixed up between what the EFF argued and what Judge Wake actually ruled on the issue of whether downloading by Media Sentry - the investigator - could actually constitute infringement.

Bill Patry believes Judge Wake got this part of the decision wrong - and Bill is far more expert on American copyright law than I will ever be, so readers may as well read his take on this:

In Howell, Judge Wake held, in denying plaintiffs' motion for summary judgment, that plaintiffs could rely on downloading by plaintiffs' outside investigative firm, MediaSentry, to establish infringement. This is the only part of the opinion I disagree with. Judge Wake wrote: "[T]he recording companies obviously did not intend to license MediaSentry to authorize distribution or to reproduce copies of their works." The phrasing of this sentence misstates what occurs and how that relates to plaintiffs' theories. The labels absolutely authorized MediaSentry to download files from Howell's shared folder, and then used that downloading as evidence that there had been an actual distribution. As the court itself wrote: "The recording companies' investigator, MediaSentry, did download 12 of the copyrighted sound recordings from Howell's computer. The recording companies assert that they have proven actual distribution for at least those 12 recordings." The court thus permitted the labels to use their investigator to engage in conduct that the labels then pointed to in proving their allegations. But authorized conduct cannot be unauthorized conduct, and since the only evidence of actual distribution (if that is what the downloading is) was authorized, there could be no infringement, as EFF pointed out.

The court attempted to get out of this fatal flaw in plaintiff's case by describing MediaSentry's efforts as "part of an [effort] to stop infringement. " So what? That still doesn't make authorized conduct unauthorized. I am aware that the Eighth Circuit thinks otherwise as did the Leadbetter court in the Western District of Washington last year, but both opinions are clearly erroneous. Copyright owners are certainly entitled to use investigators to discover infringement (assuming the investigators use lawful techniques), but having authorized the investigators' conduct they cannot then rely on that authorized conduct to prove a cause of action whose principle requirement is that the conduct be unauthorized. This is the only respect in which the Howell opinion is disappointing, but that disappointment is real and may cause real problems in future cases.

I thank the those who submitted comments on this point and given me an opportunity to make this post more useful and accurate.

Bill's position and the EFF position are consistent with what I argued successfully in the Supreme Court of Canada in the Kraft case. See para. 49.

In any case, this is a sharp and large nail in the coffin of the existence of a making available right under US law, which is of course something that Canada is expected to provide.

HK

Canadian Federation of Students Copyright Brief

As advised by the Canadian Federation of Students:

Today, in advance of CopyCamp 2008, the Canadian Federation of Students released the following statement on copyright reform with recommendations including expanding the definition of fair dealing and strengthening language protecting moral rights.

English:
http://www.cfs-fcee.ca/html/english/research/submissions/copyright2008.pdf

French:
http://www.cfs-fcee.ca/html/french/research/submissions/copyright-2008-fr.pdf

I've had a quick look at this brief and it's excellent. I particularly note the CFS postiion on the proposed educational excepption:

2. Exceptions for Educational Institutions
Asking for special institutional-based exemptions is the approach that was taken in the last round of copyright reform in 1997. It resulted in a complicated, and not very useful, set of narrow privileges for educational institutions. Unfortunately, this approach is still being pushed by groups representing a narrow band of university and college stakeholders: administrators. Seeking further special exemptions that are not available to the general public is a fundamentally flawed strategy. The better option is an expanded and open-ended definition in the Act of fair dealing that reflects the principles laid out in the CCH judgement.
So - policy makers take note. Both the CAUT and CFS have clearly said NO to a special educational exception for use of the internet. That should tell you something.

Well done, CFS. If the students can do this well, what does that say for most of the  highly paid lobbyists?

HK

Outside the PPF Tent

Some of a certain age and/or who cherish blunt wisdom may recall Lyndon Johnson’s saying about being “outside the tent.” There are a few questions that arise about the Public Policy Forum (“PPF”) conference tomorrow to which I have been uninvited. Being an “unperson” at this Symposium, I am now outside the tent - well, actually the Chateau Laurier in this instance. But I will stop well short of Lyndon Johnson’s license and take the high but necessary road here.

Here is the program. Here is the gist of the talk that will now not be heard. And herewith some questions.

The program says that:

This symposium aims to inspire discussion about how Canada’s current intellectual property rights regime might be re-structured and how those rules could become a more integral part of national science and technology policy.

When PPF states that it “stands resolutely in its belief that high quality government is critical to Canada's quality of life as well as to our prospects as a competitive nation in the global economy”, why would it look to the American Ambassador to deliver the “Welcome and opening remarks” at a conference about how Canadian IP law should be “re-structured”?

Why - especially when this particular Ambassador has been quoted on Nov. 16, 2007 in The Ottawa Citizen by acclaimed business journalist (as she then was) Deirdre McMurdy as saying that “Canada is known for having the weakest copyright protection in the G8.”? That statement is not only wrong. It is false and misleading and would be risible and even ridiculous but for the fact that some intelligent people actually may be inclined to take it seriously out of respect for the office from which it came.

You don’t have to take my carefully researched words delivered at Fordham for this.

As Michael Geist pointed out in his analysis of the recent World Economic Forum (“WEF”) survey:

Interestingly, there is a bright light that casts doubt on the repeated (false) claims that Canada is a laggard on intellectual property protection. In the IP protection category, Canada ranks 15th worldwide, ahead of both the United States and Japan. The rankings come from the World Economic Forum's Executive Opinion Survey, which ranks the G8 countries in the following order:

1. Germany (1 overall)
2. UK (8)
3. France (9)
4. Canada (15)
5. Japan (17)
6. United States (22)
7. Italy (42)
8. Russia (113)
(emphasis added)

Now, the WEF is hardly a radical “enemy” of intellectual property. One of its regular participants is Bill Gates - here he is in 2008.

The WEF is probably the most prestigious, high powered and influential international public policy forum and NGO think tank in the world today.

So - even among the G8, Canada outranks both the USA and Japan on the question of whether “Intellectual property protection in your country (1 = is weak and not enforced; 7 = is strong and enforced)”

And speaking of surveys, here are some of the questions that the Nanos survey poll undertaken for this PPF forum in early April put to 1001 Canadians:

• On a scale of 1 to 5, where 1 is not at all important and 5 is very important, how important are the following for the future prosperity of Canada? Encouraging discoveries and inventions

• As you may know, a discovery or invention requires an investment in research and development. Once a unique discovery occurs or a unique product is created, in many instances the inventors secure patent or copyright protection to help recover costs, and benefit from their creation. Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of the intellectual property right for those that make discoveries and inventions or create a unique product?

• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of intellectual property rights for each of the following: Inventions related to high tech products

• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of intellectual property rights for each of the following : Discoveries of new medicines

• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of intellectual property rights for each of the following : Copyrights of music

• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of intellectual property rights for each of the following: Copyrights of software

• Question - On a scale of 1 to 5, where 1 is no enforcement at all and 5 is very strong enforcement, how should the Government of Canada enforce the intellectual property rights for each of the following: Discoveries of new medicines

• Question - On a scale of 1 to 5, where 1 is no enforcement at all and 5 is very strong enforcement, how should the Government of Canada enforce the intellectual property rights for each of the following: Copyrights of music

Naturally, “motherhood” scored very high each time. These questions suffer from basic and obvious flaws and fallacies. The answers are entirely predictable and virtually inevitable, given the questions, and will be no value for any policy analysis purposes, although I’m sure that the usual spin doctors will be delighted at the findings.

Why would PPF have commissioned such a survey? It is a pity that this obviously expensive effort has not produced anything that can adequately inform any serious analysis.

It would have been much more interesting and useful to see questions such as these on the copyright front:

• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable record companies to demand and collect a “settlement” of more than $5,000 from you because a member of your household may have downloaded music and made it available for sharing on the internet?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable a record company to easily obtain your name without your consent so that it can sue you for up to $20,000 for each song a member of your household may have downloaded and made available for sharing on the internet?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable record and movie companies to control how, when, where, how many times and on what type of electronic device that you can enjoy music and movies that you have bought and paid for?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that enable publishers to collect millions of dollars a year for the photocopying of material for research or private study purposes from taxpayer funded schools, universities and governments that have already bought and paid for this material?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would put Canada at a comparative disadvantage compared to the United States and other G8 countries in terms of being able to engage in essential research, private study or educational activity?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable and require your Internet Service Provider or web site host to unilaterally remove content from your website at the automated request of the alleged owner of the copyright in the content?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable Canadians to fairly build upon the creative and scientific work of others in order improve Canadian education, culture, scientific achievement and the economy overall?

Maybe I’ll think of a few on the patent and TM front as well.

Now, I’m not a survey expert and my questions surely have their own flaws and surely could be improved upon. I haven’t been paid a dime to come up with them. But I bet they come much closer to the issues that are really at stake and to the suggested policies that I predict will emanate from this PPF symposium, which will use the Nanos survey to prop them up.

This will not be the first or the last imbalanced conference event in Canada that will clearly be dominated by the usual special interests, their spokespersons and American pressure in this area. The disappointment is that one would not have expected such a blatantly imbalanced program from such a prestigious and avowedly “neutral” an organization such as the PPF.

HK

Canada's "301" Demotion

Well, the US Official “301" report came out today - by sheer coincidence just in time for the Public Policy Forum Symposium on April 28, 2008 to which I have been uninvited.

Interestingly, Canada has been demoted from the suggested “priority” status.

According to USTR,

There are nine (9) countries on this year’s Priority Watch List: China, Russia, Argentina, Chile, India, Israel, Pakistan, Thailand, and Venezuela. Countries on the Priority Watch List do not provide an adequate level of IPR protection or enforcement, or market access for persons relying on intellectual property protection, in absolute terms and/or relative to a range of factors such as their level of development. Priority Watch List countries will be the subject of particularly intense engagement through bilateral discussion during the coming year.

Thirty-six (36) trading partners are on the lower level Watch List, meriting bilateral attention to address IPR problems: Algeria, Belarus, Bolivia, Brazil, Canada, Colombia, Costa Rica, Czech Republic, Dominican Republic, Ecuador, Egypt, Greece, Guatemala, Hungary, Indonesia, Italy, Jamaica, Kuwait, Lebanon, Malaysia, Mexico, Norway, Peru, Philippines, Poland, Republic of Korea, Romania, Saudi Arabia, Spain, Taiwan, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan, and Vietnam.

There are some interesting differences here from the draft that the IIPA submitted back in February, based upon which I debated the author of the Canada portion, Steve Metalitz, at Fordham on April 28, 2008.

So - Canada was passed over from the Priority List and is merely on the “lower level Watch List.” Israel, on the other hand, has been elevated.

Clearly, I must have persuaded Mr. Metalitz and the several US Government officials at Fordham of the errors of their ways ;-)

My Fordham paper points out some of the many problems with the US approach, and ultimately why the USA can fulminate all it wants but cannot legally do anything unilaterally according to th WTO.

My paper also points out why the USA should look in the mirror and why the USA belongs at or near the top of this list for several reasons.

These are among the points I would have made at the PPF Forum Symposium to which I have now been uninvited.

Anyway, for what it's worth, here's what the USTR had to say about Canada.

Canada will remain on the Watch List, subject to essential progress on key issues in the coming months. Canada embraced improving IPR protection and enforcement as a priority in the Speech from the Throne in October 2007. The United States looks to the Government of Canada to deliver on these priorities through prompt and effective action on key issues, such as copyright reform and enhanced border enforcement of intellectual property rights. The United States welcomes Canada's continued cooperation on bilateral and multilateral IPR initiatives, and notes progress in the form of Canada's issuance of measures in 2007 to criminalize camcording of copyrighted films in movie theaters. The United States notes its continuing serious concerns, however, with Canada's failure to accede to and implement the WIPO Internet Treaties. The United States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada. Canada's weak border measures continue to be a serious concern for IP owners. The United States hopes that Canada will implement legislative changes to provide a stronger border enforcement system by giving its customs officers ex officio authority to seize products suspected of being pirated or counterfeit without the need for a court order. The provision of additional resources and training to customs officers and domestic law enforcement personnel would enhance IPR enforcement. The United States will continue to monitor Canada's progress in providing an adequate and effective IPR protection and enforcement regime, including improved border enforcement and near term accession to and implementation of the WIPO Internet Treaties.

If you wish, you can pay good money to have this reiterated numerous times at the forthcoming Public Policy Forum Symposium or the Insight Conference in Toronto next month.

Or, you can read it above, for what it's worth.

HK

Uninvited to the Public Policy Forum Symposium

I have now been uninvited to the Public Policy Forum (“PPF”) IP program entitled INTELLECTUAL PROPERTY REFORM: INNOVATION AND THE ECONOMY on April 28, 2008, which will now proceed without me on the program.

It seems that strong pressure was brought to bear on PPF to have me removed from the program and that PPF capitulated.

The presentation that I would have made would have been based upon the presentation I gave at the 16h Annual Fordham conference in NYC on March 28, 2008 entitled:

WHY CANADIAN COPYRIGHT LAW IS ALREADY STRONGER AND BETTER THAN THAT OF THE USA - AND WHY THE USA SHOULD LOOK IN THE MIRROR RATHER THAN AT ITS “SPECIAL 301" WATCH LIST

Here is that paper, which documents several weaknesses in American copyright law and some 15 areas in which Canadian copyright law is already stronger and better than American law, many of which result in very substantial outflows of money to the USA. The paper also points out hypocrisy and inconsistencies in American positions on IP, including with respect to the US “301" mechanism. I was also asked to address a some points in patent and trade-marks law.

However, it seems that some interests do not want to hear about these points at this conference. I have done a lot of research in this area, and nobody has suggested that anything in the Fordham paper was inaccurate in any respect. In fact, it was well received.

I had looked forward to debating these points with Glen Bloom in particular on the panel in which I had been included, and others, who will also assuredly take a different point of view. Mr. Bloom is a registered lobbyist for Time Canada Ltd., Warner Bros. Entertainment Canada Inc., AOL Canada Inc., and The Canadian Motion Picture Distributors Association.

Since this is a program that could influence the development of Canadian law, I had hoped to provide at least some additional counterbalance to the overwhelming presence of spokespersons for multinational (largely American) based interests who will also include U.S. Ambassador David Wilkins, Michael Shapiro of the USPTO (who asked me two weeks ago for a digital copy of my Fordham paper) , and Perrin Beatty of the Canadian Chamber of Commerce, which takes a very USTR friendly view of IP matters.

I would have expected more from the PPF, based upon their own language:

The Public Policy Forum's mission is to strive for excellence in government - to serve as a neutral, independent forum for open dialogue on public policy, and to encourage reform in public sector management. Four key factors have distinguished the PPF as a unique organization on the Canadian landscape.


First, the Forum stands resolutely in its belief that high quality government is critical to Canada's quality of life as well as to our prospects as a competitive nation in the global economy. High quality government requires a fundamental commitment to excellence in public policy development and public sector management - a commitment not only by those who govern, but also by business, labour, the academic community, the media, and the voluntary sector.


Second, the PPF has established itself as a neutral, trusted facilitator. It provides a meeting place where diverse and often opposing opinions and interests can be aired openly and debated, and opportunities can be sought for mutual understanding and collaboration.


Third, unlike other public policy organizations, the PPF does not sit in judgment of what government does, but looks at how public policy is developed and how the public service is managed. This approach has enabled it to bring together Canadians from all sectors of society and political viewpoints.


Finally, the PPF lives by its mandate of seeking membership that represents all sectors in Canada.

(Emphasis added)

More in sadness than in anger, I must say that I am disappointed in the PPF for capitulating to pressure in this instance. I am afraid that this episode may prove to be very symbolic of the overwhelming efforts and forces that will be brought to bear on the Canadian Government on the IP front in the future.

Everyone is entitled to their viewpoint. So, it is particularly sad, regrettable and ultimately ironic that an institution such as the Public Policy Forum would permit such blunt interference in the marketplace of ideas in Canada.

HK

PS: Michael Geist and the incredibly widely read BoingBoing are onto this.

Public Policy Forum Program April 28, 2008

The prestigious Public Policy Forum is putting on a very provocative and informative program on April 28, 2008 on INTELLECTUAL PROPERTY REFORM: INNOVATION AND THE ECONOMY.

Speakers will include Ambassador Wilkins, Perrin Beatty, James Rajotte, Michael Geist, Glen Bloom, Richard Gold, myself and many others.

Here's the program.

It covers much more than copyright, but will likely be very interesting on that topic alone.

I expect that there will be a lot of talk of Canada/USA relations and comparisons.

It's in Ottawa at the Chateau Laurier. It's a good value at $350. Here's where to register.

HK

World Book and Copyright Day

Today is World Book and Copyright Day , according to UNESCO.

In 2008, proclaimed International Year of Languages by the General Assembly of the United Nations, UNESCO wishes to emphasize the linguistic aspect of publishing: “When a language has no access to the world of publishing, it is excluded – together with those who speak it – from a significant part of the intellectual life and economic activity of society,” declared the Director-General of UNESCO, Koïchiro Matsuura in a message on the occasion of this celebration. “In this context, it is then a matter of urgency to give languages broader access to publishing, so as to promote the exchange of books and editorial content.”

(emphasis added)

I'm all in favour of preserving precarious languages. However, what this has to do with copyright is frankly unclear.

HK

CBC’s Radio Two is being run into the ground

Page 21 THE HILL TIMES, MONDAY, APRIL 21, 2008

OPINION

CBC’s Radio Two is being run into the ground,

writes Howard Knopf

The devastation of CBC Radio Two in the last year by a small cadre of senior and middle managers after decades of distinguished history is a travesty that is becoming a tragedy.

By HOWARD KNOPF

Never before in Canadian culture has so much damage been done to so many by so few so fast. The devastation of CBC Radio Two in the last year by a small cadre of senior and middle managers after decades of distinguished history is a travesty that is becoming a tragedy. And it will soon get even worse. If this isn’t decisively reversed now, many children - especially those outside of the big cities - are going to grow up in Canada with virtually no exposure to classical music. Moreover, many older people who continue to pay lots of taxes - and to vote - will arguably be deprived of their right to hear “a wide range of programming that informs, enlightens and entertains” as required by the Broadcasting Act.

By fiat of elite CBC management, dead European classical composers will be all but purged from the airwaves. Living serious music composers will be marginalised unless they have broad appeal, like Phillip Glass or Marjan Mozetich. Forget about the more challenging modern masters like Elliott Carter, R. Murray Schaeffer, or Harry Somers. They are no longer important or even relevant in the brave new diverse world of CBC. Even the CBC’s own flawed small-sample survey research that supposedly justified the new “renewal” indicated that 49% of respondents who listened to Radio Two wanted more “classical” music and only 32% wanted less. Likewise, only 35% of respondents wanted more of “today’s popular music” and 56% said they wanted less.

As a result of CBC management’s plan to abandon the “over 50" audience in its doomed mission to win the hearts, minds and ears of a younger generation, we’ll soon hear lots of Feist and countless lesser wannabe song writers and performers. We’ll hear CanCon Old Gold that is too worn out for commercial radio, such as BTO, Lighthouse and Anne Murray. These will be the new “classics.” We’ll also hear much more Old Gould, which is always good for Canadian flag waving. Just what the downtown Toronto music elite establishment wants us to hear because that’s where the money is.

Out with the old elite. In with the new elite, who will include the very successful commercial musicians and record companies who recently signed a very expensive ad in the Globe and Mail, clearly suggesting the answer to the question of “cui bono” (who will really benefit) from all of this.

Speaking of elites, the elite few that are now running Radio Two (into the ground, in my opinion) want us to believe that all music is equal. But it isn’t. Popular music is rarely really “good” music that will endure and become classical. Much of it is part of the junk and fast food of modern culture.

Pierre Juneau did a great thing for Canadian commercial music with the Canadian content requirements. But let us not gild the lily by turning the CBC into a second rate commercial network. That would not only be contrary to the Broadcasting Act. It simply won’t work because CBC doesn’t have the skills to make it work.

One of the yet unexplored ironies of this sad Canadian version of a cultural revolution is that this exercise in inverse elitism may end up actually costing the CBC a lot of money, despite the stated goals of CBC management to the contrary. For example, CBC has just killed off the CBC Vancouver Radio Orchestra, the last remaining jewel in a crown that was once acclaimed throughout the world. No less than Igor Stravinsky, the giant of all twentieth century serious composers, chose to use the long gone CBC Symphony Orchestra in Toronto to make some of the most definitive recordings of his own music, including the legendary performance of his Symphony of Psalms that he conducted in 1963. Naturally, in classic Canadian fashion, the orchestra was disbanded the following year.

CBC claims that eliminating its Vancouver radio orchestra will save money. It reportedly cost only about $600,000 a year to run the orchestra. Even CBC brass claim they will save less than a million a year with the cut. Much of that will now likely go to recording and subsidizing commercial music.

Moreover, here is what CBC is not telling us. In dumbing down to five hours a day of “classical” music (in the middle of the day when almost nobody can hear it), CBC will greatly increase its airtime for copyright protected music (music not in the public domain). This means that CBC’s copyright tariff costs will surely increase. At last report, the CBC was paying almost $1.5 million a year to SOCAN as of 2005 for its radio activity alone - for the use of repertoire that historically has included a lot of public domain classical music. According to Canada’s Copyright Board, in 1998 the percentage of “protected” music played on CBC radio overall was somewhere between 21% and 24% of its broadcast day. Clearly, this percentage will now rise substantially.

Whatever calculation may have been in place before will likely now change. Someone will probably do some arithmetic on the back of an envelope and suggest that CBC should double or treble or increase even more that amount of $1.5 million a year in view of the fact that the dreaded (dead for more than 50 years) European composers will be taking up very little time now on the CBC’s subsidized radio network. CBC will likely agree rather than offend Canada’s commercial music elites and have to go to the trouble of actually having a hearing at the Copyright Board, which it hasn’t done for a very long time. Such increased payments would be perfectly consistent with CBC’s new policy of pandering to these commercial elites.

So the small saving realized from killing off the last radio orchestra in North America will likely be more than offset by increased SOCAN payments alone. This is not to mention inevitable new demands by NRCC - the record companies’ and performers’ collective that is trying to play catch up and then some with SOCAN. NRCC will also greatly benefit from the banishment of old foreign recordings and their replacement with newer Canadian product. Needless to say, most if not all of these extra tariff costs will go to the commercial music interests that CBC will now actively promote and play at taxpayers’ expense.

Even though SOCAN takes in well over $200 million a year, very little of this money goes to serious music composers in Canada. Many of the best known names in Canadian serious music (at least they were well known up until last year when CBC management cut the much loved and acclaimed “Two New Hours” show) earn barely enough money from SOCAN to cry in their beer, and only a few beers a year at that.

One hears that even very well known “serious” composers in Canada are earning well under $10,000 a year from SOCAN - many less than $100 a year. Much of these meagre amounts come from outside Canada because SOCAN’s distribution rules have greatly hurt serious composers since the merger of CAPAC and PRO into SOCAN was allowed in 1990. This is the way the copyright system works in Canada. It rewards commercial success and has nothing to do with merit or artistic importance. This is not the case in Europe which has “cultural funds” institutionalized in the collective system. Indeed, Europe still has magnificent public radio networks and radio orchestras. The BBC alone has five orchestras and the BBC Singers. There are many great radio orchestras on the continent.

It is true that the world has survived admittedly more drastic cultural revolutions. However, even so, what is happening on Front Street at CBC headquarters is still very disturbing.

Moreover, bad as this is, some are cynical enough to see the possibility of an even bleaker future unfolding than is now apparent. This could entail the possibility that, in the longer term, Canadian listeners/taxpayers will become so turned off that they will beg to eliminate or privatize CBC radio. Then, in typically Canadian fashion, the Government might even end up having to pay an opportunistic party to take over the surely very large liabilities for salaries, severances, and other items that the accountants and lawyers will surely come up with. We could then see a national version of Moses Znaimer’s CFMZ.

Enough said. Whatever happens, Canadian taxpayers will soon end up paying much more for much less.The current disaster in Canada is easily reversible with appropriate changes by or, if necessary, in and to CBC management. This must happen as soon as possible.

By the way, Ben Heppner grew up in Dawson Creek, somewhere in northeastern B.C. He won the CBC Talent Festival (which no longer exists) in 1979. This launched his career. How will the next Ben Heppner develop? He is one of many wonderful CBC stories. There might have been many others. But they won’t be told because they will now never happen.

Howard Knopf is an Ottawa cultural curmudgeon, former CBC recording artist, formerly fervent CBC Radio Two listener, and copyright lawyer.

The Hill Times

Cacaphony @ CBC

A few days ago, a publicly listed penny stock company named Dittybase announced in a press release (here's a resulting story) that:

Victoria, British Columbia CANADA -- Dittybase Technologies Inc. (DTTY
- OTCBB), is proud to report a landmark agreement between its
wholly-owned subsidiary, Dittybase Inc. and the Canadian Broadcasting
Corporation (The CBC). Dittybase, a pioneer of digital music licensing,
becomes the worldwide distributor for the digital distribution and
licensing rights for the vast CBC Music Collection. This unsurpassed
collection of recorded Canadian music has been compiled over the last
seven decades, and includes every imaginable genre, including
Classical, Opera, Folk, World/Ethnic, Jazz, Rock and Electronica, from
Canada's brightest Independent artists, orchestras and Canadian icons.

It goes on from there....

Turns out that CBC didn't see it this way and issued its own press release on April 17 that starts out:

    TORONTO, April 17 /CNW/ - Dittybase Technologies Inc. (OTCBB:DTTY)
yesterday issued a news release concerning its business relationship with the
Canadian Broadcasting Corporation (CBC). The vast majority of information in
the release was misleading. By way of clarification, the CBC today notes the
following:

-   CBC/Radio-Canada, through its Merchandising Division, has agreed to a
non-exclusive license with Dittybase, effective February 1, 2008, for
a term of two years; through this agreement, Dittybase may use its
music-sourcing technologies to offer CBC-approved recordings for use
in television programs, films, commercials, etc.;

-   this is specifically a business to business service and not for
retail consumers;

-   the agreement does not include the entire CBC music catalogue;
recordings are individually selected and made available to Dittybase
by CBC;

-   prior to any licenses to Dittybase clients, CBC must approve the
license in writing and Dittybase must clear the underlying rights
with all appropriate rightsholders;

-   CBC has not released to Dittybase any material that it has not
approved for licensing;

-   Dittybase is not "the worldwide distributor" of music for the CBC;

-   the relationship between CBC and Dittybase does not constitute
"a strategic partnership";

-   "CBC Radio directors" are not "an integrated part of Dittybase";

-   "CBC Radio Canada" is not "a division of The CBC";

-   CBC has not licensed "The CBC Music Collection," "CBC Radio
Sessions," "CBC Radio 3," or "CBC Records" to Dittybase;

-   CBC has not licensed to Dittybase work by any of the artists
mentioned in Dittybase's April 16 news release.

(emphasis added)


Not the normal way to launch a new business relationship...

I have no idea what this mess is all about but it sure looks interesting...

It sounds like something that journalists may want to check out. It seems that CBC radio management may have some interesting times ahead, as they say...

In any event, things are sure getting "Curiouser and curiouser"...

HK

CBC, Copyright and the Canadian Cultural Revolution

This is for those who care about the decimation and devastation of classical and serious music now underway at CBC Radio Two, Canada's once proud national and entirely subsidized radio network that used to be devoted to non-commercial and culturally important content.

The CBC has a long standing tradition of “negotiating” its tariff obligation with SOCAN rather than rolling up its sleeves and actually going to the Copyright Board for a contested hearing. SOCAN is probably much better at this game than CBC. The bottom line is that CBC at last report was paying something in the order of $1.5 million a year to SOCAN as of 2005 for its radio activity alone (to be exact, $1,486,836 for 2005) - for the use of repertoire that historically has included quite a lot of public domain classical music. According to Canada’s Copyright Board, in 1998 the percentage of “protected” music played on CBC radio overall was somewhere between 21% and 24% of its broadcast day. Clearly, this percentage will now rise substantially.

Whatever calculus may have been in place will likely now change. Someone will probably do some scribbling on the back of an envelope and suggest that CBC should double or treble or more that amount of $1.5 million a year in view of the fact that the dreaded dead white European male composers who have been deceased for more than 50 years will be taking up very little time now on the five hours a day of “classical”music permitted during the middle of the day on Canada’s subsidized national radio network. CBC will likely agree, rather than offend Canada’s commercial music elites and have to go the trouble of actually having a hearing at the Copyright Board, which it hasn’t done for a very long time. CBC in fact now seems to be pandering to Canada’s commercial music elites in a very big way.

So the saving of somewhere between $300,000 and $1,000,000 realized from killing off the CBC Vancouver Radio Orchestra will likely soon vanish in increased SOCAN payments alone. Not to mention NRCC - the record companies’ and performers’ collective that is trying to play catch up with SOCAN and which will also benefit from the banishment of the dreaded dead white European male composers’ music and recordings of old and/or foreign orchestras and other “classical” ensembles - but in ways that are rather more complex than this brief comment allows for.

And needless to say, most if not all of these extra tariff costs will go the commercial music interests that CBC seems to think require subsidized airing on Radio Two.

I’m going to do more on this. If anyone cares to let me privately know what they think about SOCAN’s treatment of serious music composers in Canada, I’m all ears.

HK

UK - Turning Up the Heat on Collectives and the Copyright Tribunal

An interesting and important report just out on March 10, 2008 out from the UK House of Commons Committee on Innovation, Universities and Skill can be found here.

Its overall recommendations are these:

The Copyright Tribunal was established as an independent tribunal in 1988 to adjudicate in commercial disputes between copyright owners and users, to ensure that the monopoly of the owners and their agents, the collecting societies, is not abused.

From the outset there have been complaints about delay and the cost of going to the Copyright Tribunal. We find it unacceptable that the Intellectual Property Office, which has administrative responsibility for the Copyright Tribunal, has failed to address these problems in the past 20 years. At last it is waking up to need for improvement, which is now pressing.

Intellectual property is of increasing importance in the UK economy and the spread of digital technology is leading individuals and small businesses and institutions—in contrast to large companies—to become increasingly engaged in the distribution of creative works. In 2007 the Intellectual Property Office commissioned Review of the Copyright Tribunal produced 30 far-reaching recommendations, most of which have support from both copyright owners and users. The Government now needs to publish its response to the Review and to initiate action. It also needs to develop, as a matter of urgency, an affordable, alternative service that individuals and small businesses and institutions can use as well as a policy on works where the copyright owner cannot be established or traced.

(emphasis added)

Does any of this sound familiar to Canadians?

See my recent posting on this subject here and my recent paper on it here.

With all due respect, these are the sorts of questions we should be actually concerned with in Canada now - rather than, as some fear, the slavish enactment of a slightly modified DMCA when Canadian law is already stronger and better than US law in response to largely American based corporate and political interests.

HK

Method and instrument for proposing marriage to an individual

Who says that IP law is all about money, monopolies, greed and conspiracies?

Certainly not one Ryan Thomas Grace who has applied for a patent for the above captioned invention in the USPTO. Here's the abstract:

The purpose of this invention is to provide an improved method of proposing marriage to an individual. The method of proposing to an individual generally comprising the steps of meeting the individual; exchanging names with the individual; dating the individual (not necessary); drafting a government document having a proposal to marry the individual incorporated therein; and showing the government document to the individual. The government document may be a patent application. The patent application may claim the method by which the proposor will make a marriage proposal to the individual. The proposor could then use the method claimed in the patent application to propose to the individual. The patent application could be the actual marriage proposal.

Here's the application.

It is not known whether this invention passes the "utility" test. However, the putative inventor is apparently now gainfully employed at the well established firm that filed the application.

Good luck, Ryan!

HK

Canadian Sovereignty Reborn?

The apparent will of the Government to block the American takeover of Canada's leading strategic satellite technology funded by almost a half a billion Canadian tax payer dollars is great news. Here's the NY Times take.

Perhaps this Government remembers the forever tarnished legacy left by John Diefenbaker that stuck to the Progressive Conservative party for decades when The Chief canceled the AVRO ARROW aerospace program. This was one of the darkest days in Canadian history - and it happened apparently because President Eisenhower insisted. No other valid reason has ever been advanced.

What does this have to do with copyright?

The obvious question is whether this signals a new will to assert Canadian sovereignly on sensitive files where money and other values that money can't buy suggest that Canadian interests should come first. If so, this Government will win many friends and quite possibly a majority in the next election.

Or, will this Government make amends for cancelling the satellite deal by handing to the USA on a silver platter what certain American corporate interests and their Canadian lobbying proxies, such as CRIA, want on copyright.

I fear the latter because the Americans are obsessed by copyright dominance. In the end, a big American company can alway make or buy a new satellite somewhere - but international copyright hegemony is at or near the top of the USA wish list.

Let's hope this Government is resolute and consistent.

HK

"Is Three-Strikes Out?"

The "three strikes and you're out" proposal to banish those who content owners think are infringers from internet access appears to be in trouble in Europe. The threat is most serious in France.

See the IP-Watch report here.

Make no mistake - the big content companies are trying to re-configure the internet in order to assert control over content. If they can't sue users, they want to be able to banish them - without judicial safeguards. This could make the DMCA look like a Sunday school picnic.

The French proposal was being touted at Fordham by Michael Einhorn who frequently takes positions that are friendly to the record industry - and was most unconvincing in my view.

HK

CMEC is on the defensive re "Implied Licence"

CMEC is once again on the defensive, now about the doctrine of “implied licence” or “implied license.” Note the two different spellings for research purposes.

CMEC says in its Copyright Bulletin #5 that:

It comes down to the fact that the implied licence is a theoretical concept whose scope
has never been explained by Canadian courts.
(emphasis added)


Well, the fact is that the doctrine has been mentioned and discussed in too many Canadian and UK cases to count. Just about everyone except CMEC seems to understand what it means. Most concepts in law have a “theoretical” basis, but this one has also had a very practical existence in IP law for 137 years, as I outlined recently.

Most notably in the current context, the Supreme Court of Canada has explicitly recognized it in at least two copyright cases:

Netupsky et al. v. Dominion Bridge Co. Ltd. (1971) 3 C.P.R. (2d) 1 (SCC)

and

Robertson v. Thomson Corp., [2006] 2 S.C.R. 363

It is dealt with repeatedly in the lower court decisions in CCH v. LSUC. The Supremes didn’t need to deal with it as such when that case arrived upstairs.

Plus many, many more cases in all areas of IP law.

Not to mention last week’s decision in the UK Court of Appeal in Brooker v. Fisher (the Procol Harum/Whiter Shade of Pale decision). In that decision, the UK Court of Appeal held, inter alia, that the plaintiff organist had given an implied license to the defendants and sat on it for far too long to be able to revoke it.

Those responsible for policy and taxpayers’ expenditures at CMEC may wish to actually read these cases, not to mention the landmark decision in CCH v. LSUC that CMEC still fails to appreciate.

CMEC wants legal certainty. However, the educational establishment has very little risk of being sued for normal use of the internet. If a school were to be sued for doing what everyone has been doing for a decade or more and is still doing and if CMEC were to retain vigorous and expert litigation counsel, it would have a very good chance of winning such litigation. In the unlikely event it were lose, then Parliament would surely step into the breach.

The Law Society did not seek a special amendment when confronted by CanCopy (i.e. Excess - oops - I mean Access Copyright before it changed its name) over the issues in the CCH v. LSUC case, which were far more pressing and far less certain in terms of outcome. It fought. And it won. And, frankly, its case was not nearly as strong as CMEC’s case would be in this instance. Now that it is long since over, it can be said that some of us were rather worried that the Law Society might actually lose the case on one or more key grounds. But it fought and prevailed. CMEC has vastly more resources even than the Law Society of Upper Canada to stand up to Access Copyright, if necessary. And a far stronger case, based upon what is now apparent. And no actual threat in sight.

I say all of this because not only am I a copyright lawyer but because I am a taxpayer - and every penny that CMEC spends for better or worse comes from me and other taxpayers. And I don’t want my internet bill to go up because of the inevitable tariff that Access Copyright will file due to the a contrario implications of this proposal, if enacted.

I'm quite confident that Canada's professional teachers in the classroom would really like to teach creatively and to use the internet in innovative and responsible ways. Their management and CMEC should be fighting for their right to do so and to defend them if necessary. In this light, CMEC's apparent obsession with avoidance of any risk of any kind is difficult to understand. However, it is nothing if not consistent with the extraordinarily and unnecessarily cautious approach advocated by Wanda Noel and Gerald Breau in Copyright Matters!, which is published by CMEC.

CMEC's position on the educational internet exception will play into the hands of Access Copyright by implying that everyone outside the educational tent is liable to pay for these same or similar practices and will weaken rights already in place for teachers and students, as I pointed out before.

In any case, I’m confident there is probably a greater risk of being fatally struck by lightning or otherwise killed on the way to work than a school board being successfully sued by Access Copyright for reasonable educational use of publicly available material on the internet. About one in every 6 million Canadians will be struck by lightning each year, if American statistics are any basis. So far, Access Copyright - litigious as it is and reckless as it has been in its litigation - has never actually sued an educational institution in Canada as far as I know - despite threats.

Instead of seeking broad and useful "such as" or "including" wording as exists in the §107 of the US legislation, CMEC has embarked on what is clearly an expensive and divisive preemptive campaign now several years old that - if successful - would likely give its members at the end of the day even less rights than they already have, likely ruin the law of fair dealing for everyone else, and likely ultimately benefit Access Copyright.

Maybe their next bulletin will explain why. Their last five bulletins have certainly not done so.

HK

Reflections from Fordham - 2008

The annual Fordham International Intellectual Property Law and Policy Conference has just taken place, as always The First Thursday and Friday After Easter.™ The following is a very limited and personal take on a very complex and comprehensive conference.

The Canadian Panel:

Once again, through a lot of hard work, we’ve been able to convince Prof. Hugh Hansen (the conference director) to put on a provocative and balanced panel on Canadian copyright law. This is despite the fact that Canada has been crying “wolf” on new legislation for several years now.

This year, the panel consisted of:

1. Prof. Daniel Gervais, who talked mainly about the 2007 Kraft decision from the Supreme Court of Canada (a favourite case of mine because I made the prevailing argument).


2. Justice William Vancise, the Chairman of the Copyright Board, who chose to speak and write about “What are "adequate reasons" in a Decision of the Canadian Copyright Board? To what Degree Should Appellate Courts Defer to the Expertise of Specialized Tribunals? And Do They?”

3. Steve Metalitz, the lawyer/lobbyist for the Washington based International Intellectual Property Alliance (“IIPA”) which has recommended Canada for the “section 301 priority watch list” for 2008, who spoke about why he believes that this is justified. He focussed, inter alia, on Canada’s lack of implementation and ratification of the 1996 WIPO Treaties and the alleged inadequacies of Canadian enforcement, particularly regarding border measures. Since the IIPA is effectively the privatized research arm of the USTR for “301" purposes, it was good to have Steve on this panel.

4. Myself, who spoke and wrote (see my paper) about why the IIPA’s and similar positions from CRIA and the American government are not justified, and why the USA should look in the mirror and find a way to put itself at or near the top of its own “priority watch list” in terms of weaknesses in its own copyright law and violation of existing treaty obligations. I have now identified 15 areas in which Canadian law is already stronger and better than American law, and which result in many cases in very large outflows of payments to American corporate interests. None of these was refuted. I also pointed out that while Israel bravely rebuts the USA’s “301" reports, Canada simply does not take them seriously and the WTO has ruled that the USA cannot take any unilateral action beyond rhetoric with respect to its “301" mechanism. Moreover, the USA is arguably in violation of the Berne Convention with respect to moral rights and other important matters, and has been adjudicated to be and clearly intends to remain in violation in respect of its notorious exemption of small business establishments from the need to pay performing rights royalties.

5. Richard Pfohl from CRIA, who reiterated CRIA’s usual positions. Since CRIA, which essentially represents the big four foreign record companies, is apparently by far the most vociferous so-called “Canadian” copyright lobbyist organization, it was useful for Richard to be on the panel.

Apart from the very frank and, frankly, very unusual remarks and paper by Justice Vancise criticizing the Federal Court of Appeal, which reviews his Copyright Board, there were no real surprises from the speakers.

There were some very worthy comments from the audience, as often happens at Fordham where the audience members are often at least as expert and engaged as the speakers and panelists.

Mario Bouchard, the General Counsel of Canada’s Copyright Board, pointed out that the fact that it has been 12 years since the WIPO treaties came about in Geneva and that Canada has still not implemented and ratified them showed that there can hardly be said to be a Canadian consensus on these issues. He also pointed out that it took the USA 102 years to join the Berne Convention, so the USA ought not be too critical about a 12 year delay on Canada’s part in respect of the 1996 WIPO treaties.

Justice Roger Hughes of the Canadian Federal Court commented from the audience in response to Steve Metalitz’s suggestion that Canada lacks adequate and effective border measures and should provide “ex officio” seizures (i.e. seizures that bypass the Courts and let customs officials seize allegedly pirated or counterfeit goods). According to Mr. Metalitz, the current system doesn’t work. Justice Hughes pointed out that this was simply wrong and that judicial orders for seizures were readily available when appropriate – and that those seeking such a change should “stop whining” and just “roll up their sleeves” in order to use the current system. He indicated that he had signed three such orders at the request of Microsoft just in the last week.

Other Notable Aspects from Fordham

Once again, Justice Rogers Hughes from Canada’s Federal Court, who was a highly renowned and experienced litigator and author in all areas of IP prior to his appointment to the Bench in 2005, joined the Fordham Faculty on patent law sessions. One hopes that he will become a “regular” at Fordham in the tradition of Lord Jacob, Sir Hugh Laddie, Lord Hoffman, Pauline Newman, Randall Rader, and other distinguished expert judges.

Speaking of which, there was a remembrance of the Rt. Hon. Lord Justice Pumfrey a popular and very expert judge from the UK, who passed away suddenly on Christmas eve last, shortly after his elevation to the Court of Appeal.

There was a remarkable panel of General Counsel organized by Brad Smith of Microsoft, an old friend and frequent presenter at Fordham long before he became GC and Senior VP of Microsoft. The panel included the GCs/VPs from Time Warner, NBC Universal, Viacom and New Corps. Such an array of distinguished GC’s on one public panel is rare, if not unique. But it’s too bad that Google and Verizon weren’t there. The panel could have been much more balanced, especially because virtually all these GCs were extolling the development of “cooperation” with ISPs in curtailing piracy and saying much the same thing as each other otherwise. The panel fuelled fears that traffic shaping and other interference with net neutrality could be much more about IP enforcement than network management.

I managed to get them rather defensive when I mentioned that traffic shaping and “cooperation” has “throttled” CBC’s innovative attempt a few days earlier to use BitTorrent for a perfectly legitimate purpose - which their own companies might want to consider at some point. Tom Rubin, another senior Microsoft lawyer, later provided a rather thoughtful comment on this in another panel indicating that ways should be found to make sure that legitimate uses of innovative technology should not be hindered.

Ironically, virtually at the same time the GC panel was going on, Comcast in the USA announced that it was backing off from its plans to throttle the internet.

(Meanwhile, Canada - which has virtually no real competition in broadband internet service - and no evident willingness on the part of part of the Government or regulators to deal with this issue - is plunging further into the abyss of throttled and inferior internet service at very high prices.)

Another high point was the appearance of Ray Beckerman, the fearless New York trial lawyer from a small firm who is fighting the RIAA litigation campaign against children, dead grandmothers and 20,000 or so other ordinary victims on many fronts and who has a fabulous blog and data base of info on the RIAA’s litigation. Hugh Hansen gave Ray more than the usual ordeal by fire, which often greets anyone at Fordham who dares to question the establishment point of view. I get it every year. But Hugh does in fact invite strong and outspoken anti-establishment points of view- unlike certain Canadian conference organizers - and I trust that Hugh’s apparent righteous indignation (with more than a little twinkle in his eye) was his way of showing his seal of approval. He only gets this excited when things become electrified and polarized - which he likes to see. Ray stood up very well and then some - and I hope he’ll be back. Here’s Ray’s take on the P2P and related issue sessions. His RIAA opponent, Kenneth Doroshow, took the perfectly absurd position that Jammie Thomas had caused untold millions of dollars of damages, even though there wasn’t a shred of evidence that anyone other than the RIAA investigator had downloaded anything from her - and that $9,250 damages per song was therefore not such a high figure. No wonder people ridicule the RIAA and that the RIAA is giving copyright as we know it a very bad name. Pam Samuelson outlined how the whole statutory damages regime could crumble on a constitutional basis, something I’ve been saying for years. I’m glad I’m in such good company.

Additional high points were the participation of Alex Macgillvary, an associate general counsel of Google who is a Canadian and a Harvard grad and a very eloquent spokesperson for balanced copyright.

An new and important voice was also added from Israel - Mr. Tamir Afori. He is the official most responsible for the new Israeli Copyright Act, which has a brilliant solution to the problem of statutory damages (no minimum - USD $28,000 max) and fair use provisions very similar to those of the USA, which the IIPA has soundly criticized since that is not a feature of US law that they wish to see emulated. Israel has also stood its ground on TPMs and WIPO ratification. Canada would do well to look more closely at the new Israeli law and to invite Mr. Afori to come to Canada and tell us more. It is refreshing to see that the Israeli government listens to its professional civil servants, more so than certain other governments.

There was much talk about fair use, and a major new study on limitations and exceptions by Bernt Hugenholtz and Ruth Okediji.

And there was the usual rich three ring or more circus of simultaneous sessions on patents, trade-marks, copyright, competition law, etc. And much, much more - too much to talk about. I’m still recovering. Fordham was, as always, an exhausting but immensely rewarding experience. You cannot learn more about IP anywhere in two days than you can at Fordham - where you will be up to date with key developments from around the world - including Canada - and you will meet many of the most influential judges, officials, lawyers and academics who actually made these developments happen.

Update - the list of faculty and some of the papers (requires a password) are now at the Fordham conference website.

HK

Life + 343 years

Nicholas Poussin (1594-1665) was perhaps the greatest landscape painter - ever. There is currently a fabulous exhibition of his works at the Metropolitan in New York. There is a prominent “no photography” sign. I saw a security guard stop someone who tried to take a picture. The Met normally allows photography just about everywhere, provided that no flash is used - which is sensible both for preservation and politeness reasons.

So - I asked the security guard why the policy was different here. “Because of copyright”, he explained. We had a good chat about this - he was a very bright young man. He explained that the pictures were mostly on loan - and that was why this situation was different. So - I presume that this was a condition imposed by contract from the lenders. That would be within the lenders rights, though the purpose would seem unclear. If so, I would wonder why the Met would agree to the condition.

The management had apparently explained it to him as a matter of copyright.

Call it “respect for copyright” or perhaps creeping term extension. In this case, life plus 343 years.

HK