Jamie Love has a great post comparing the level of transparency during the FTAA negotiations with the ACTA talks. Several drafts of the FTAA agreement were released to the public, refuting claims that ACTA secrecy is standard practice. Dec.07/09Comments (3)
The Vancouver Sun reports on new SOCAN demands that buskers in the Vancouver transit system pay performance royalties that could run up to $1500 per year. Dec.07/09Comments (6)
KEI's Jamie Love recently had the opportunity to ask USTR Ambassador Ron Kirk about the lack of transparency associated with ACTA. Kirk responded implausibly that people might walk away from the negotiations if the text was made public. Dec.04/09Comments (3)
New Zealand MP Clare Curran has posted on ACTA, arguing that "in the interests of transparency and public interest, the New Zealand Government should reveal the text of recent secret discussions in South Korea on the Anti-Counterfeiting Trade Agreement." Meanwhile, UnitedFuture leader Peter Dunne has called on the Government to release details of the recent international negotiations on ACTA.Dec.04/09Comments (2)
The Toronto Sun reports that anti-counterfeiting lawyer Lorne Lipkus believes that a Private Member's bill focusing on expanded copyright will be introduced shortly. There is no word on which MP is working with copyright lobbyists, but the bill will apparently including tougher sentences and increased seizure powers at the border. Dec.03/09Comments (10)
The National Post reports that CARFAC, which represents Canadian visual artists, has filed a complaint against the National Gallery of Canada. CARFAC is seeking a new royalty for the use of members' works on the National Gallery website. Dec.03/09Comments (8)
There is some exciting news at the University of Ottawa as it has become the first major Canadian research university to announce a comprehensive open access strategy. As part of the announcement, the University has joined the Compact for Open Access Publishing. It is the first non-U.S. school to do so, joining Cornell, Dartmouth, Harvard, MIT, and Berkeley. The University of Ottawa open access initiative includes a commitment to progressively make all of the University’s scholarly publications freely available online through the University’s repository, uO Research. Key elements of the strategy are:
an author fund to assist researchers in paying fees charged by publishers to make materials available under open access
Chet Baker was a leading jazz musician in the 1950s, playing trumpet and providing vocals. Baker died in 1988, yet he is about to add a new claim to fame as the lead plaintiff in possibly the largest copyright infringement case in Canadian history. His estate, which still owns the copyright in more than 50 of his works, is part of a massive class-action lawsuit that has been underway for the past year.
As my weekly technology law column (Toronto Star version, homepage version) notes, the infringer has effectively already admitted owing at least $50 million and the full claim could exceed $6 billion. If the dollars don’t shock, the target of the lawsuit undoubtedly will: The defendants in the case are Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada, the four primary members of the Canadian Recording Industry Association.
The CRIA members were hit with the lawsuit [PDF] in October 2008, after artists decided to turn to the courts following decades of frustration with the rampant infringement (I am adviser to the Canadian Internet Policy and Public Interest Clinic, which is co-counsel, but have had no involvement in the case). The claims arise from a longstanding practice of the recording industry in Canada, described in the lawsuit as "exploit now, pay later if at all." It involves the use of works that are often included in compilation CDs (ie. the top dance tracks of 2009) or live recordings. The record labels create, press, distribute, and sell the CDs, but do not obtain the necessary copyright licences.
Instead, the names of the songs on the CDs are placed on a "pending list", which signifies that approval and payment is pending. The pending list dates back to the late 1980s, when Canada changed its copyright law by replacing a compulsory licence with the need for specific authorization for each use. It is perhaps better characterized as a copyright infringement admission list, however, since for each use of the work, the record label openly admits that it has not obtained copyright permission and not paid any royalty or fee.
Over the years, the size of the pending list has grown dramatically, now containing over 300,000 songs. From Beyonce to Bruce Springsteen, the artists waiting for payment are far from obscure, as thousands of Canadian and foreign artists have seen their copyrights used without permission and payment.
It is difficult to understand why the industry has been so reluctant to pay its bills. Some works may be in the public domain or belong to a copyright owner difficult to ascertain or locate, yet the likes of Sarah McLachlan, Bruce Cockburn, Sloan, or the Watchmen are not hidden from view.
The more likely reason is that the record labels have had little motivation to pay up. As the balance has grown to over $50 million (Universal alone owes more than $30 million), David Basskin, the President and CEO of the Canadian Musical Reproduction Rights Agency Ltd., notes in his affidavit that "the record labels have devoted insufficient resources to identifying and paying the owners of musical works on the Pending Lists." Basskin adds that some labels believe addressing the issue would be "an unproductive use of their time."
Having engaged in widespread copyright infringement for over 20 years, the CRIA members now face the prospect of far greater liability. The class action seeks the option of statutory damages for each infringement. At $20,000 per infringement (the amount owed on some songs exceed this amount), potential liability exceeds $6 billion. These numbers may sound outrageous, yet they are based on the same rules that has led the recording industry to claim a single file sharer is liable for millions in damages.
After years of claiming Canadian consumers disrespect copyright, the irony of having the recording industry face a massive lawsuit will not be lost on anyone, least of all the artists still waiting to be paid. Indeed, they are also seeking punitive damages, arguing "the conduct of the defendant record companies is aggravated by their strict and unremitting approach to the enforcement of their copyright interests against consumers."
Update: An earlier version of this post noted that record label liability could exceed $60 billion in this case. A reader helpfully noted the math gremlin - the correct number is $6 billion ($20,000 per infringement X 300,000 songs).
The government has now completed posting all the submissions it received during the copyright consultation (I'll be posting a final summary shortly). Interestingly, the final submission to be posted was from SOCAN, but it came with some controversy. Sources say that SOCAN requested that its submission not be posted online. The terms of the consultation clearly indicated that all submissions would be posted, so it is difficult to identify the grounds for non-disclosure. Ultimately, the government posted access to the submission, though not the submission itself. This means that anyone can obtain a PDF copy of the submission via email, but it will not be searchable like every other submission. Note that this also raises privacy concerns as interested Canadians are required to provide personal information in order to obtain a copy of the SOCAN document, creating a list of everyone who has requested a copy.
As for the substance of the submission, it is the usual laundry list of demands including anti-circumvention legislation, copyright term extension, making available right, notice-and-takedown, broadening of the private copying levy, and no further exceptions. The submission includes some indirect criticism of Industry Canada and an industry-focused approach to copyright reform. SOCAN criticizes Bill C-61, expressing a preference for the C-60 approach to the making available right. It also argues that the Standing Committee on Canadian Heritage should have sole responsibility for considering a copyright reform bill. This recommendation suggests that it is less than comfortable with Industry Minister Tony Clement and the Industry Committee, despite the fact that the Copyright Act clearly grants the Minister of Industry responsibility for copyright.
The Anti-Counterfeiting Trade Agreement made it to the floor of the House of Commons yesterday as NDP MP Charlie Angus raised concerns about the agreement, the lack of transparency, and questions about whether the recent copyright consultation was little more than theatre given the prospect that ACTA will decide what Canadian copyright law ultimately looks like.
Industry Minister Tony Clement responded by arguing that the ACTA is not law in Canada, stating that it is "subservient" to domestic law. While that is true for the moment, once it is completed the pressure to implement - much like the WIPO Internet treaties - will be enormous. Clement also stated that people interested in the treaty could check out my website to learn more. While I appreciate the shout-out, it should be obvious to everyone that this website is not a replacement for full and frank disclosure on ACTA and the Canadian government's position on the treaty. A full Hansard transcript of the exchange, along with the YouTube version, follows below:
Angus: Mr. Speaker, the European Union has leaked details of the secret ACTA negotiations in Korea and guess what? It has exposed the industry minister's so-called public consultations on copyright as a total sham, because ACTA will deep six Canada's ability to establish copyright policy. Further, it will strip thousands of citizens from the right to even use the Internet under the idiotic “three strikes and you are out“ policy. The government has no right to negotiate away our domestic copyright laws. Will the minister table in the House the mandate letter that was given to the negotiators to start the ACTA talks?
Clement: Mr. Speaker, despite the hon. member's fear-mongering, the Government of Canada has not adhered to or agreed to anything in the ACTA negotiations. The ACTA negotiations are in fact subservient to any legislation that is put forward in the House. In good faith, I and my colleague, the hon. Minister of Canadian Heritage and Official Languages, talked to the people of Canada, talked to stakeholders about a future copyright bill. We are proud of the fact that we have had that consultation because we got some good ideas, even from some NDPers.
Angus: Mr. Speaker, the ACTA provisions read like a wish list for the U.S. corporate lobby because it will override any flexibility for WIPO, it will gut our domestic copyright policies and it will criminalize thousands of Internet users through the three strikes provision. Canada needs a minister who is willing to stand up for the innovation agenda, not a minister who is acting like a hand puppet for the U.S. embassy. Why will the minister not table the ACTA negotiations so we can open it to public scrutiny?
Clement: Mr. Speaker, if the hon. member wants to read more about it, he could go to Michael Geist's website. The fact is that anything that goes on in ACTA is completely subservient to what we as parliamentarians decide on this issue. We have gone further in terms of ensuring the public is aware of the issues involved in copyright renewal and reform than any other government and we are proud of that record.
The Electronic Commerce Protection Act, Canada's anti-spam bill (Bill C-27) passed through the House of Commons yesterday as a motion to support sending the bill to the Senate received approval. The bill received all-party support but will undoubtedly face an intense lobbying campaign at the Senate. Copyright lobbyists, real estate agents, and marketing survey companies were among the most aggressive lobby groups seeking changes when the bill was considered by the Industry Committee. Clement stood his ground and the resulting bill is a good one. Indeed, the lobbying efforts and attempts to weaken the bill did not go unnoticed. During yesterday's discussion in the House, NDP MP Brian Masse, the party's representative on the Industry Committee, noted "when it gets to the Senate we will see whether or not there is going to be another lobby effort either to kill the bill or to weaken it some more."
Meanwhile, Liberal MPs who failed to garner support for their reforms were still pressing for changes. MP Siobhan Coady stated "while the Liberal Party believes the bill remains unnecessarily restrictive to legitimate business in its approach in many regards, we will support the bill at third reading as action must be taken against spam. We will monitor the legislation closely going forward to ensure that it does not stifle legitimate electronic commerce in Canada." Getting C-27 through the House is a big step, but the lobby attempts to water down the bill will no doubt be back for another round as the bill hits the Senate.
The European Commission analysis of ACTA's Internet chapter has leaked, indicating that the U.S. is seeking to push laws that extend beyond the WIPO Internet treaties and beyond current European Union law (the EC posted the existence of the document last week but refused to make it publicly available). The document contains detailed comments on the U.S. proposal, confirming the U.S. desire to promote a three-strikes and you're out policy, a Global DMCA, harmonized contributory copyright infringement rules, and the establishment of an international notice-and-takedown policy.
The document confirms that the U.S. proposal contains seven sections:
Paragraph 1 - General obligations. These focus on "effective enforcement procedures" with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties. Paragraph 2 - Third party liability. The third party liability provisions focus on copyright, though the EU notes that it could (should) be extended to trademark and perhaps other IP infringement. The goal of this section is to create an international minimum harmonization regarding the issue of what is called in some Member States "contributory copyright infringement". The U.S. proposal would include "inducement" into the standard, something established in the U.S. Grokster case, but not found in many other countries. This would result in a huge change in domestic law in many countries (including Canada) as the EU notes it goes beyond current eu law. Paragraph 3 - Limitations on 3rd Party Liability. This section spells out how an ISP may qualify for a safe harbour from the liability established in the earlier section. These include an exemption for technical processes such as caching. As reported earlier, ACTA would establish a required notice-and-takedown system, which goes beyond Canadian law (and beyond current EU law). Moreover, ACTA clearly envisions opening the door to a three-strikes and you're out model, as the EU document states:
EU understands that footnote 6 provides for an example of a reasonable policy to address the unauthorized storage or transmission of protected materials. However, the issue of termination of subscriptions and accounts has been subject to much debate in several Member States. Furthermore, the issue of whether a subscription or an account may be terminated without prior court decision is still subject to negotiations between the European Parliament and the Council of Telecoms Ministers regarding the Telecoms Package. Paragraph 4 - Anti-circumvention Provisions.ACTA would require civil and criminal penalties associated with anti-circumvention provisions (legal protection for digital locks). The EU notes that this goes beyond the requirements of the WIPO Internet treaties and beyond current EU law which "leaves a reasonable margin of discretion to Member States." The EU also notes that there is no link between the anti-circumvention provisions and copyright exceptions. The U.S. proposal also requires the anti-circumvention provisions to apply to TPMs that merely protect access to a work (rather than reproduction or making available). This would again go beyond current EU law to include protection against circumventing technologies like region coding on DVDs. From a Canadian perspective, none of this is currently domestic law. As previously speculated, the clear intent is to establish a Global DMCA. Paragraph 5 - Civil and Criminal Enforcement of Anti-Circumvention. This section requires both civil and criminal provisions for the anti-circumvention rules, something not found in the WIPO Internet treaties. The anti-circumvention provisions are also designed to stop countries from establishing interoperability requirements (ie. the ability for consumers to play purchased music on different devices). The EU notes that this not consistent with its law, which states "Compatibility and interoperability of the different systems should be encouraged." Of course, might reasonable ask why such a provision is even in ACTA. Paragraph 6 - Rights Management Information protection. This section includes similar criminal and civil requirements for rights management information. Paragraph 7 - Limitations to Rights Management Information protection.
In summary, the EU analysis confirms the earlier leak (though the Internet chapter has seven sections, rather than five). The fears about the U.S. intent with respect to ACTA are confirmed - extending the WIPO Internet treaties, creating a Global DMCA, promoting a three-strikes and you're out model, even stopping efforts to create interoperability mandates. ACTA would render current Canadian copyright law virtually unrecognizable as the required changes go far beyond our current rules (and even those contemplated in prior reform bills). This begs the question of whether the Department of Foreign Affairs negotiation mandate letter really goes this far given the domestic changes that would be required. This latest leak also reinforces the need for all governments to come clean - releasing both the ACTA text and government analysis of the treaty should be a condition of any further participation in the talks.
isoHunt, the Canadian-based Torrent search engine, has filed a follow-up statement of claim against the Canadian Recording Industry Association as it seeks a declaration that it is operating legally in Canada. The filing is well worth reading as it explains BitTorrent technology and argues that isoHunt is a P2P search engine that merely indexes torrent files found on other indexing sites (it describes itself as a Super-Indexer). Further, it notes the limits of its involvement in the copying process as well as its compliance with the DMCA notice-and-takedown system. isoHunt clearly tries to position itself as a specialized search engine that does not host infringing content. The filing is the second in the case. CRIA challenged isoHunt's earlier filing, arguing that a full trial was needed. The B.C. courts agreed and this marks the continuation of the case.
The CRIA response will be interesting since it faces a conflict between its rhetoric and its view of Canadian law. On the one hand, it has argued that the isoHunt case is indication that Canadian law is out-of-date, suggesting that it provides a clear sign that reform is needed. On the other, given that it initiated cease and desist letters, it is unlikely to simply say that isoHunt is correct and that it is operating legally. In other words, if it challenges isoHunt's claims, it acknowledges that it believes that Canadian law can be used to stop torrent search sites. If it doesn't make such an argument, it can continue to make the claim for reform, but it loses the case.
Justice Minister Rob Nicholson today tabled the Child Protection Act (Online Sexual Exploitation). As widely reported, Bill C-58 creates a mandatory disclosure requirement on Internet providers where they become aware of child pornography websites or have reason to believe a subscriber is using their service to violate child pornography laws. Where an Internet provider submits a report on a user, they must preserve the relevant computer data for 21 days and they are prohibited from disclosing the disclosure to the customer. Failure to report may result in fines or imprisonment and providers are granted immunity from liability for reporting the activity. The definition of Internet provider is broad, extending beyond just ISPs to include those providing Internet access, hosting, or email services. In other words, services like Google, Hotmail, and Facebook are all covered.
The bill shares similarities with provincial laws (ie. Ontario) and those that report under the provincial law are exempt from the federal version. While few will criticize a bill targeting child pornography - everyone agrees that child pornography is abhorrent and we need to ensure that we have laws to deal with the problem - it is hard to see what this bill actually accomplishes. Canada already has: Read More ...
law enforcement focused on child pornography virtually to the exclusion of all other online issues
Further, while there are reports that Canada is a source of child pornography websites, a major European based study concluded that focusing on the World Wide Web and blocking content makes little sense in trying to combat child pornography (the same report found that image blocking initiatives like the Canadian Project Cleanfeed are ineffective). Instead, the real problems lies in dissemination of child pornography in newsgroups, private groups, and other private spaces that fall largely outside the potential for tips envisioned by Bill C-58 or Canada's Project Cleanfeed.
Multiple reports today indicate that opposition is growing in Europe to plans for three-strikes policies that could lead to the termination of Internet access for some subscribers. In the U.K., protests are mounting over those plans in the recently introduced Digital Economy Bill. The BBC reports that thousands of people have signed a petition urging the government to reconsider its approach, while the Open Rights Group says it has seen a big spike in membership. The UK's Internet Service Provider Association has unsurprisingly voiced its opposition, stating "rather than focusing blindly on enforcement, the government should be asking rights holders to reform the licensing framework so that legal content can be distributed online to consumers in a way that they are clearly demanding." The Telegraph reports popular author Stephen Fry has lent his support to opposing the bill, vowing to urge people to sign the petition until a million people have signed on.
Meanwhile, European Union Telecom Commissioner Vivianne Reding has warned Spain against adopting a three-strikes model without a procedure before a judge. Reding added: Read More ...
"The new internet freedom provision now provides that any measures taken regarding access to and use of services and applications must always respect the fundamental rights and freedoms of citizens. Effective and timely judicial review is as much guaranteed as a prior, fair and impartial procedure, the presumption of innocence and the right to privacy. We need to find new, more modern and more effective ways in Europe to protect intellectual property and artistic creation. Repression alone will certainly not solve the problem of internet piracy; it may in many ways even run counter to the rights and freedoms which are part of Europe's values since the French Revolution."
The Spanish telecommunications industry is reportedly puzzled by the comments since the Spanish government has made it clear it does not plan to adopt a three-strikes approach. Reding's comments - along with the protests in the UK - provide an important reminder that three-strikes remains highly controversial and is opposed by thousands of people as well as leading politicians.
