Several people have written to ask for a comment on this week's O' Canada panel at the Future of Music Summit in Washington, DC. In addition to my participation (and Walter McDonough's moderation) the panel featured CRIA President Graham Henderson, CMRRA's David Basskin, and MP Sarmite Bulte. Much of the panel was expected (WIPO Lite vs. an Enlightened WIPO, a statutory damages debate, the impact of the DMCA, what is not covered by Bill C-60, etc.) and not worthy of a detailed review.
More important in my view were two comments from Ms. Bulte. First, commenting on some earlier FMC discussion that noted the strength of the copyright lobby in the United States, Bulte opined that Canada doesn't have a strong copyright lobby. I found this to be a remarkable statement: with dozens of copyright collectives and industry associations, it is well known that the copyright lobby in Canada employs a steady stream of lobbyists and is far more powerful than those representing user interests. Indeed, at Ms. Bulte's own committee last year, one MP acknowledged that the user interests were far outnumbered by copyright holder interests.
Second, Ms. Bulte sought to characterize the copyright balance as one pitting creator rights against consumer needs. I responded (as believe all should respond) that this is simply not the case. As the Supreme Court of Canada has noted, the balance involves creator rights and user rights. There is a world of difference between needs and rights. Consumers do not only "need" to make copies of work for fair dealing purposes. They have the right to do so. Consumers do not need to make personal copies of sound recordings. Under the private copying system in Canada, they have the right to do so (at least according to the head of the Canadian Private Copying Collective). Needs may of course go unsatisfied, but rights occupy a much more important place in the legal hierarchy. They cannot be simply taken away and no one should allow Ms. Bulte, CRIA or anyone else to do so, whether through law or language.
bulte, copyright, cria, geist, law, music Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday September 14, 2005 |
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While I have been focused on the do-not-hesitate-to-call list issue this week, there has been another telephony issue making waves in Canada. The lack of cell phone number portability is widely viewed as a consumer impediment to switching providers and fostering a more competitive wireless marketplace in Canada. The U.S. successfully implemented number portability several years ago. The federal government surprised many people in the spring when it used the budget to ask the CRTC to "move expeditiously to implement wireless number portability."
The Canadian Wireless Telecommunications Association unveiled its plan to operationalize the government's request for cellphone number portability earlier this week. The CWTA's interpretation of "expeditious"? Two years. Yes, the CWTA has offered up an implementation plan that would not bring number portability to the Canadian wireless market until 2007.
In a market that features new product rollouts seemingly weekly, the notion that it takes two years to complete this transition is positively shameful. There are a couple of options in response. First, the CRTC can simply demand number portability on a genuinely expeditious timetable. Alternatively, I propose matching the time it takes to implement this issue with the length of time the government takes to implement the pro-telecommunications company recommendations that come out of the telecommunications policy review. That review is scheduled for completion at the end of this year. Assuming there are some recommendations to relax some carrier regulations, I propose that the government work on an implementation schedule that would start in 2008. Somehow I suspect that that timeline wouldn't sit so well with the same carriers that expect consumers to wait years for cellphone number portability.
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My weekly Lawbytes column (freely available hyperlinked version, Toronto Star version) focuses on Bill C-37, which is designed to establish a do-not-call list. Following its introduction, Bill C-37 was referred to the Standing Committee on Industry, Natural Resources, Science and Technology for review. Months later, the amended bill is virtually unrecognizable, as intense lobbying has transformed the do-not-call list into the do-not-hesitate-to-call list.
Rather than leaving the specific exemptions to an open public consultation, the committee introduced several changes to the bill that dramatically reduces its effectiveness. These include exceptions for charities, political parties, polling companies, and businesses with existing business relationships. While it may come as little surprise to find politicians protecting their own ability to make unsolicited telemarketing calls, the inclusion of the existing business relationship exception is particularly damaging as it renders the do-not-call list practically useless.
The existing business relationship provision will allow businesses to contact former customers for up to a year and a half after their last communication or contract (notwithstanding the inclusion of their phone number on the do-not-call list). Moreover, even a simple inquiry will give businesses a six-month window to ignore the presence of the number on the do-not-call list.
Supporters of the do-not-hesitate-to-call list argue that the Canadian exceptions mirror those found in the U.S. Although it is true that the U.S. has created some similar exceptions, the Canadian exceptions go much further than their U.S counterparts. For instance, the exception period for a mere inquiry is twice as long in Canada as it is in the U.S.
Moreover, supporters of the amended proposal note that telemarketers will be required to maintain company-specific internal do-not-call lists so that Canadians can request no further phone calls on an individual company basis. They neglect to mention, however, that this merely restates current law, since federal privacy legislation clearly allows anyone to opt-out of further marketing communication. Experience has shown that company-specific do-not-call lists do not work, since few Canadians can opt-out of all their marketing calls, much less monitor appropriate compliance.
Not only is the new Bill C-37 a disappointing departure from the government' s prior commitment to an effective do-not-call list, the committee hearings were also particularly embarrassing. While the bill is ostensibly designed to protect consumers, the committee refused to hear from consumer groups. Instead, with notable exception of government officials and the Privacy Commissioner of Canada (whose advice was largely ignored), the committee limited its hearings to a steady stream of marketing and charitable groups.
I conclude by noting that since Bill C-37 has not yet become law, it is not too late to restore an effective do-not-call approach by reversing the committee' s proposed do-not-hesitate-to call list. The time has come for Canadians to speak out on the issue by delivering a few unsolicited calls of their own to Industry Minister David Emerson and their local Member of Parliament.
canada, do-not-call list, geist, law, michael geist, privacy, telemarketing Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSunday September 11, 2005 |
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Sirius Canada has just issued a press release thanking the federal government for its confirmation of the CRTC's satellite radio decision. Assuming this is correct, the decision represents a win for the two services specifically as well as a win for the CRTC, individual Canadians, and independent artists more generally. Heading the list of losers is Canadian Heritage Minister Liza Frulla and her parliamentary secretary Sarmite Bulte, who expended considerable capital on this issue but ultimately failed to push through the reversal. While it is tempting to think that a similar division might occur on Bill C-60, the sad reality is that user groups, libraries, and teachers simply can't afford the multi-million dollar lobby campaign mounted by the winning services and their allies. That said, Frulla is a weakened minister today and the fight over copyright this fall just got a bit more interesting. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday September 09, 2005 |
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My column earlier this week focused on the satellite radio embarrassment and the willingness of Canadian Heritage Minister Liza Frulla to maintain the independence of the CRTC only when it is convenient to do so. I argued that in light of Minister Frulla's claims that her mind was made up, the government was in a lose-lose situation no matter what it ultimately decides.
Today's Globe and Mail illustrates that government leaders recognize the problem as it reports that a senior ad-hoc committee reviewed the matter and still doesn't know what to do. With the deadline looming on September 14th, this debacle is playing out in public with the government looking worse on this file by the day.
Moreover, the Globe also contains a very revealing interview with Minister Frulla. First, she now claims that her mind is open on the satellite radio issue, a statement that is at odds with earlier comments and all other news reports, which only serves to further undermine her credibility. Second, she insists that she doesn't have to "take any lessons from Jack Layton and Charlie Angus" on these issues, a comment echoed in the House of Commons in the spring when she similarly insisted that she needs "no lessons from anyone" on the satellite radio issue.
Third, and most interestingly, Minister Frulla outlines her key developments for the fall. These include the satellite radio issue, the CBC labour dispute, the naming of a new CBC chairperson, pressing for additional funding for the Canadian Council for the Arts, and travelling to Paris to sign a new UNESCO treaty. No prizes for readers of this blog for noting which issue Minister Frulla neglected to mention.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday September 07, 2005 |
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CRIA' s reaction to the Kazaa ruling provides a helpful advance preview of its likely comments before the parliamentary committee reviewing Bill C-60. The release applauds the Kazaa decision (CRIA was ready for this one as its PR firm emailed journalists on Friday with offers to comment on the decision), includes some deceptive comments (eDonkey and BitTorrent have not been shut down; servers or nodes running the programs have been targeted) and uses the decision as a springboard to make several claims that must be challenged.
First, CRIA seeks to link the Australian decision with Canadian copyright reform. In reality, the two have as much in common as Australian rules football does to ice hockey. As I noted yesterday, the Kazaa case turns on authorization, an issue that is not at play in Bill C-60 since it is grounded in Supreme Court doctrine. Even if Parliament were to enact Bill C-60 with the additional dangerous amendments advocated by CRIA, a Kazaa case in Canada would still boil down to the authorization analysis.
Second, in a claim designed to appeal to Canadian Heritage, it describes the implementation of WIPO in Canada as "WIPO-Lite", questioning whether the bill will be effective and allow Canada to "implement its international treaty obligations." We should be clear: Bill C-60's provisions (particularly the anti-circumvention provisions) are absolutely WIPO compliant. While a few lawyers may be paid to say otherwise, the independent law professors representing ten universities from across Canada contributing to the forthcoming book on Bill C-60 leave little doubt that the Canadian approach meets the requirements of the treaty. Moreover, it should be noted that Canada does not have any international treaty obligations. We signed the WIPO Treaties in 1997 but that act does not create any new obligations on the country (only ratification of the treaty creates obligations).
Third, there is the absurd claim (designed to appeal to Industry Canada) that Canadian copyright laws have hamstrung online music sales. CRIA claims that "digital sales in this country run at one-half of one percent of US levels, but should be in the 12 to 15 percent range given relative broadband penetration in the two countries."
We should again be absolutely clear: Canadian online music sales have nothing to do with Canadian copyright legislation or copyright reform. What is behind the slower Canadian sales (assuming this is correct; the industry has not provided the public with these numbers)?
First, slower sales reflect a broader Canadian trend in e-commerce. There is no correlation between broadband penetration and online music sales nor any other form of e-commerce as Canadians have been slower to gravitate to all e-commerce offerings, from books to travel to music. You don't see Amazon or Expedia claiming that it is the Canadian legal framework that has slowed adoption of their online offerings because the two simply aren't directly linked.
Second, there are far fewer online music services in Canada than in the U.S. According to IFPI, the global recording industry association, Canada currently has six services (Archambault, iTunes, Napster, Future Shop, Sympatico, and Puretracks). By comparison, IFPI lists 34 U.S. services. With nearly one-sixth the number of online music services, the lower Canadian numbers are precisely what you would expect.
Third, the Canadian services offer far less music than their U.S. counterparts. Numerous U.S. services offer more than 1 million tracks. In Canada, only iTunes does. Moreover, iTunes has some major Canadian misses. Where is the French content (funny that Canadian Heritage Minister Liza Frulla is concerned with satellite radio french content but says nothing about the lack of French offerings on iTunes)? Where are groups like The Arcade Fire, one of Canada's hottest bands that made the cover of the Canadian edition of Time Magazine?
Fourth, the Canadian services are much newer than their U.S. counterparts. Consider the growth rate of iTunes in the U.S.: it took Apple 11 months to sell its first 50 million songs and then another four months to get to 100 million songs. Three months later, the company hit 150 million, and it took just two months to get to 200 million. The growth rate has continued with iTunes recently surpassing 500 million songs. Here in Canada, iTunes only debuted nine months ago in December 2004. In other words, Canada is still at the very beginning of the growth chart and its performance is similar to what occurred in the U.S.
Fifth, the online music services themselves are turning off consumers due to compatibility problems. As a Macintosh user, I still can' t use services such as Puretracks or Napster. Moreover, even if I could, Napster doesn't allow me to listen to the music on my iPod.
Sixth, the Canadian industry has benefited from the private copying levy. CPCC reports that it collected more than $39 million in 2004, by far the most amount ever generated by the levy. That will result in millions of dollars for artists and their labels that sit alongside the growing revenues from the digital sales market.
In sum, the Canadian market for digital sales may be behind the U.S. but that is an industry issue, not a copyright problem. CRIA may have used a slow news day to generate some unchallenged news stories, but the parliamentary committee considering Bill C-60 in the fall should not allow these same claims to go unquestioned.
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Earlier today an Australian court ruled in favour of the music industry in its copyright infringement suit against Sharman Networks, the company behind Kazaa. I won' t venture into providing an analysis of Australian law; see Kim Weatherall's excellent, quick analysis of the case, which notes that this decision is bad for innovation.
My pre-decision comments, which focused on the diminishing market share of Kazaa and the prospect for an appeal regardless of how the decision unfolded, remain unchanged.
From a Canadian perspective, the case highlights a growing divergence between Canadian and Australian copyright law such that the outcome of a similar case in Canada could potentially be much different (more on that at our comparative conference later this month in Ottawa).
Some of the differences between our two laws are obvious; for example, the existence of a making available right in Australia but only proposed here in Bill C-60. The more important distinction in this case, however, involves the question of authorization (or authorisation). Critical to today' s Kazaa decision was reliance on the test developed in Moorhouse, an Australian case, for determining authorization. The court concluded that Sharman Networks, along with several of its directors, met that standard. While acknowledging the existence of legal warnings against copyright infringement, the court was troubled that "Sharman took no steps to include a filtering mechanism in its software, even in software intended to be provided to new users."
The Supreme Court of Canada considered the authorization issue last year in CCH v. Law Society of Upper Canada. The Canadian court explicitly rejected the Moorhouse test, concluding that "Moorhouse is inconsistent with previous Canadian and British approaches to this issue. In my view, the Moorhouse approach to authorization shifts the balance in copyright too far in favour of the owner's rights and unnecessarily interferes with the proper use of copyrighted works for the good of society as a whole."
As for the application of authorization test, the Canadian Supreme Court stated that "a person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law. This presumption may be rebutted if it is shown that a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement."
In other words, under Canadian law, Kazaa would be entitled to presume that its services are being used lawfully consistent with its legal terms. Could the music industry rebut the presumption against a Canadian Kazaa? Hard to say. It might prove to be a challenge given questions about whether downloading for personal purposes constitutes copyright infringement in Canada and the evidence needed to show a relationship or degree of control that rises to the level of authorization under Canadian law.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday September 05, 2005 |
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My weekly Law Bytes column (Toronto Star version, freely available hyperlinked version) focuses on the explosive battle over satellite radio in Canada. I begin by recalling Canadian Heritage Minister Liza Frulla's position on the entry of RAI, the Italian language television network, into Canada last summer. Despite enormous pressure, the new Minister stood by the CRTC. In response to criticism from opposition parties, she told the House of Commons that "the CRTC is an independent tribunal and an arm's length body. Of course we cannot have any political use of that body."
Pressure continued to build throughout the fall as opposition parties maintained their focus on CRTC decisions. When the Minister was asked to intervene in cases involving two U.S. television networks, Fox News and SpikeTV, she again emphasized the independence of the CRTC, noting that "it will make its decision, and we are going to respect that decision."
Fast forward to last week: same CRTC, same Minister Frulla, but a much different message. Cabinet will reportedly discuss the matter on Thursday, yet Minister Frulla has already signaled that the government plans to intervene, telling one reporter that "our mind is pretty much made up."
Should Cabinet follow Minister Frulla's recommendation, the government will have substituted a lengthy, impartial process with one determined by lobbying power and political expediency. Even if it leaves the CRTC's decision untouched, the damage will still have been done, since Minister Frulla's abandonment of her principled support of the CRTC has vanished and the future relationship with the so-called "arm' s length body" has been called into question.
Moreover, the complete politicization of the satellite radio issue does not bode well for other key issues involving Canadian Heritage. Bill C-60, the copyright reform bill currently before the House of Commons, provides a laundry list of new rights and powers to special interests, but does little for individual Canadians. As pressure mounts from U.S. backed lobbies to eliminate the bill's few user-focused provisions, there are fears that that process may also shift away from a "Made in Canada" solution to a lobbyist-dominated outcome.
In the aftermath of the CRTC' s decision last June, I supported its willingness to identify new methods to promote Canadian content and concluded that Canadian artists and consumers would be the ultimate winners. It seems that I spoke too soon.
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The Toronto Star today publishes a letter to the editor from Maureen Cavan, the Executive Director of Access Copyright that responds to Monday' s column on education and copyright. Not surprisingly, Ms. Cavan disagrees with the column, arguing that
In his column, Geist describes Access Copyright as one of two "direct beneficiaries" of the photocopying licences held by Canadian colleges and universities, a statement that is not merely inaccurate, but misleading.
The truth of the matter is that there are two distinct beneficiaries of photocopy licensing, neither of which is Access Copyright. The copyright owners who founded, and continue to own, Access Copyright benefit from the royalties we collect on their behalf. And the users of copyright protected works benefit from the ability to photocopy from those works for a reasonable fee.
I don' t think there is anything misleading about the column nor about the characterization of Access Copyright as a beneficiary of the copy licenses. It may be a non-profit, but according to its most recent annual report, one out of every four dollars it received went to expenses. How did it manage to spend more than $7 million dollars in administrative expenses in 2004? All organizations bear costs, but not all organizations have as many as three lobbyists on their payroll. Today their lead lobbyist appears to be Paul Bonwick, the former MP who sat on the Standing Committee on Canadian Heritage that delivered the embarrassingly one-sided May 2004 copyright reform report.
In other words, Canadians students and taxpayers unnecessarily pay millions in license fees that is then used to fund lobbyists who argue for further policies that run counter their interests. Of course, that ultimately leads to yet further license fees and the cycle continues.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday August 31, 2005 |
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I am delighted to announce an exciting book project that will launch in several weeks. In response to Bill C-60, a large group of Canadian academics have come together to produce to a peer-reviewed book on copyright law in Canada. Irwin Law will publish the 608-page In the Public Interest: The Future of Canadian Copyright Law next month. I served as the book' s editor and contributed the introduction as well as a chapter on anti-circumvention legislation and competition policy.
The book will be available in hard copy and, in a first for a Canadian legal text, made available for download under a Creative Commons license. It contains 19 essays that provide context for copyright reform in Canada, detailed analysis of Bill C-60, and discussions about what was omitted from this round of reform. The contributors are leaders in copyright and IP policy representing ten universities from coast to coast. I' ll have much more to say about the book, which I hope will serve as an important resource during the upcoming hearings on Bill C-60, in the coming weeks.
Update: Several people have written to ask whether downloads of In the Public Interest will be free. Yes, Irwin Law will make all 19 essays available for free download under CC license.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday August 29, 2005 |
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