Archive for July, 2010

Federal Court Ruling Shows Fair Dealing Fears Greatly Exaggerated

While concern over Bill C-32’s digital lock rules has garnered the lion share of attention, the other major issue in the bill is the extension of fair dealing to cover education, parody, and satire.  I have characterized those changes as a reasonable compromise – not the full “such as” flexibility that would have been preferable, but helpful extensions that attempt to strike a balance.  Some writers groups have reacted angrily to the changes, claiming it will cost them millions in revenue and arguing that it amounts to an “expropriation of property.”

Last week, the Federal Court of Appeal issued its much-anticipated ruling in the K-12 case, which specifically addressed fair dealing in the context of education.  The ruling was a major win for Access Copyright, as the court dismissed objections from education groups on a Copyright Board of Canada ruling and paved the way for millions in compensation from school boards. 

The case is notable since it demonstrates how critics of greater fair dealing flexiblity have greatly exaggerated claims of potential harm.  For example, former PWAC Executive Director John Degen wrote this week that “the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use.”  Access Copyright reacted to the court victory by stating it was “bittersweet” given the C-32 changes.  While there is no doubt that extending fair dealing to education (the law currently covers many educational activities under research, private study, criticism, and review) will bring more potential copying within the scope of fair dealing, this case reinforces the fact that fair dealing is a fair for all, not a free for all and that fears that the extension of categories will wipe out all revenues bear little relation to reality.

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July 28, 2010 15 comments News

Industry Canada on US IP Watch List

An Industry Canada spokesperson on the validity of the USTR Special 301 list: “Canada does not recognize the validity of the Special 301 process, which relies on industry allegations rather than empirical evidence and analysis.” Note that the article says I said that Canada did not need to pass anti-circumvention […]

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July 28, 2010 2 comments News

CETA Update: EU Continues To Press on IP

The Department of Foreign Affairs held a call today with various groups to provide an update on the Canada – European Union Comprehensive Trade Agreement negotiations.  The department indicated that there has been progress on virtually all issues and the broad shape of the deal is being outlined. On intellectual […]

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July 27, 2010 4 comments News

The U.S. DMCA vs. Bill C-32: Comparing the Digital Lock Exceptions

Yesterday’s U.S. DMCA Rulemaking decision, which established a series of new anti-circumvention exceptions, attracted considerable attention on both sides of the border.  In the U.S., critics of the DMCA noted the progress in addressing some of the DMCA’s most troubling consequences by creating exceptions for unlocking and jailbreaking cellphones and circumventing DVD locks in several circumstances (though the decision is hardly a panacea given the restrictions on distributing circumvention tools, contractual restrictions, and the absence of a general right to circumvent for lawful purposes).

From a Canadian perspective, the U.S. decision – combined with the recent 5th Circuit Court of Appeals ruling linking circumvention to copyright and the USTR decision to cave on the digital lock rules in ACTA – provides a timely reminder of the mistake that is the digital lock rules in C-32. 

Looking back, Industry Minister Tony Clement said he wanted forward-looking legislation designed to last ten years, yet the scope of Bill C-32’s anti-circumvention exceptions became outdated in less than ten weeks.  Canadian Heritage Minister James Moore, when not calling critics “radical extremists,” emphasized that Bill C-32 was not identical to the DMCA.  While he had the notice-and-notice system in mind, weeks later his comments became accurate since it turns out the DMCA is far less restrictive than C-32.

Just how badly does the Canadian bill stack up?  On the two key issues in the bill – digital locks and fair dealing – Canada is far more restrictive than the U.S.  Consider:

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July 27, 2010 17 comments News

Next ACTA Meeting “Intercessional Meeting” Not Formal Round

David Hammerstein reports that the next series of ACTA talks will be an “intercessional meeting” in Washington starting on August 16, 2010.  The talks will not be treated as a formal round, which has the effect of decreasing transparency since no agenda or statement will be released.

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July 27, 2010 Comments are Disabled News