Kim Weatherall provides a quick summary of what is an exceptionally important Australian parliamentary report on TPM provision implementation. The report includes 37 recommendations with a long list of protections. Kim points to coverage of region coding (specifically excluded as TPM), linking access controls to copyright, and exceptions when the amount of non-copyright material protected under a TPM is substantial (and modestly doesn't reference the committee's citations of her own work).
There is lots more including exceptions for fair dealing, education, and libraries. Moreover, the committee made it clear that changes in the law that facilitate greater access (such as format shifting or backup rights) should be matched by a TPM exception. As Kim concludes:
"Two arms of government have now spoken: the High Court of Australia, and a committee of the Parliament. Both have affirmed that copyright law must be balanced; that anti-circumvention laws should be matched to copyright rights, rather than overly extending them . How will the executive react?"
This report should obviously be required reading in Canada. In fact, it should be more than just read. It should be matched by a similar process (just as recently occured in the UK) that ensures that Canadian law similarly preserves the appropriate balance should we enact anti-circumvention provisions.
The copyright lobby argued that Bill C-60 did not go far enough in protecting TPMs. It seems to me that this report from independent parliamentarians (no pro-user zealots there) confirms that the opposite is true: the bill did not do enough to provide consumers and the marketplace with adequate protections from TPMs.TagsShareWednesday March 01, 2006
The European Union Data Protection Working Party has released new recommendations
on email screening practices including screening for viruses, spam, and
certain content. The report expresses concern with the false positive
problem on spam filtering, suggesting that email providers ensure that
users have control over the degree of filtering. The report's
recommendations on content screening is unequivocal: "email providers
are prohibited from engaging in filtering, storage or any other kinds
of interception of communications and the related traffic data for the
purposes of detecting any predetermined content without the consent of
the users of the services." Interesting report that would be worth
contextualizing into the Canadian privacy law framework.TagsShareWednesday March 01, 2006
While the stock markets were focused yesterday on comments to a
conference from Google's CFO, Rogers VP Finance was telling another
investor conference about Rogers' take on the broadband marketplace. John Gossling said:
"The good news, I think, on both is that there is actually some pricing
power. Unlike the competitive situation (in the U.S.), the prices on
and TV have been actually moving up quite nicely (for Rogers). We don't
seem to have the competitive pressure to take these
decent-margin products and move their prices down, so we're seeing good
In other words, the Canadian broadband marketplace has little
competition, providing companies such as Rogers with the opportunity to
raise prices and decrease service (see the current online discussion
about Rogers cutting back on BitTorrent access). This might be music
to the ears of investors, but for consumers this does not provide much
confidence for the future direction of Internet connectivity in
Canada. Let's hope the CRTC and municipalities were also listening as
they consider muni wifi initiatives and legislative protections against
a two-tiered Internet.TagsShareWednesday March 01, 2006
Bruce Schneier points
to a recent incident in Greece where about 100 politicians and
political leaders were subject to mobile phone wiretapping. Schneier
points out that the wiretapping was facilitated by new network
surveillance requirements, which were then used by the "bad guys" for
their own purposes. A good lesson for Canada as we renew the debate
over lawful access and consider the risks associated with a Canadian
surveillance network (Thanks Stacy!).
TagsShareWednesday March 01, 2006
Jamie Love has an interesting posting on USTR head Bob Portman violating U.S. law by pressuring African countries to increase protections for AIDS medicines that exceed WTO minimums. Expect those pressures to shift north once a Canadian copyright reform bill makes an appearance.TagsShareWednesday March 01, 2006
It appears that Canada's Access Copyright is not alone in seeking new license fees from schools for use of the Internet. AC's Australian counterpart, the Copyright Agency, is seeking compensation for teachers instructing students to browse the Internet. While it may sound like it, this story does not come from the Onion.TagsShareTuesday February 28, 2006
The Canadian Legal Information Institute has announced the first results from an important new project dubbed ScanLII.
It appears that ScanLII will attempt to the fill the very large gaps in
the freely available Supreme Court jurisprudence online. They've
scanned 200 decisions dating back to 1976 with more to come.TagsShareTuesday February 28, 2006
If you have been following the debate over Internet governance over the
past few years, you know that while ICANN supporters (U.S., Canadian,
Australian governments; business lobby) and critics (developing world
and occasionally Europe) argue over the optimal approach, particularly
with respect to government involvement in the domain name system, the
reality has been that possession is all. The U.S. government retains
ultimate control over the system and thus the debate is somewhat
academic. In assessing the outcome at the World Summit on the
Information Society last fall, I argued that:
"the U.S. simply had a very strong hand and played it well. Changes to
the governance structure ultimately requires U.S. agreement since
possession is even more than the proverbial 9/10th of the law. The
U.S. had loudly indicated that it was not prepared to make
concessions. During the negotiations at the PrepCom it adopted a very
hard line - even raising the prospect of pulling back on ccTLD
sovereignty or turning over the Internet Governance Forum to a private
sector group like ISOC. Without a credible threat (the threat being
the creation of alternate root), the U.S. was able to maintain its
position and ultimately force everyone else to deal."
The alternate root has always lurked in the background as a possibility
that would force everyone to rethink their positions since it would
enable a single country (or group of countries) to effectively pack up
their bags and start a new game. The U.S. control would accordingly
prove illusory since a new domain name system situated elsewhere would
be subject to its own rules. While the two could theoretically
co-exist by having ISPs simply recognize both roots, the system could
"break" if both roots contained identical extensions. In other words,
one root can have dot-com and other other can have dot-corp, but they
can't both have dot-com.
It is with that background in mind that people need to think about a press release
issued yesterday in China announcing a revamping of its Internet domain
name system. Starting tomorrow, China's Ministry of Information
Industry plans to begin offering four
country-code domains. In addition to the dot-cn country code domain,
three new Chinese character domains are on the way: dot-China, dot-net, and dot-com. As the People's Daily Online notes this "means Internet users don't have to surf the Web via the servers
under the management of the Internet Corporation for Assigned Names and
Numbers (ICANN) of the United States."Read More ...
TagsShareTuesday February 28, 2006
In other words, the Chinese Internet becomes a reality tomorrow. With
it, the rules of the game may change as 110 million Internet users will
suddenly have access to a competing dot-com (albeit in a different
character set) and will no longer rely exclusively on ICANN for the
resolution of Internet domain name queries. This change was probably
inevitable regardless of the status of ICANN, however, the U.S.
position can't possibly have helped matters. Indeed, some might note
that while Congress has been criticizing U.S. companies for harming Internet freedoms by cooperating
with Chinese law enforcement,
those same Congressional leaders may have done the same by refusing to
even consider surrendering some control over the Internet root to the
international community and thereby opening the door to an alternate
root that could prove even worse from a freedom perspective.
This week's announcement certainly doesn't mark the end of a global
interoperable Internet. It does move one step further toward that path
since in Internet governance terms, the credible threat is now real.
Update: The China story generated significant attention with media coverage from the Boston Globe
, Globe and Mail
, and the Computer Business Review Online
The stories and blog commentary raise several issues. First, these
Chinese IDNs have in place for sometime, though this marks the shift
from "experimental" to full-fledged domains. Second, this will not
immediately impact the rest of the world in the sense that Canadians
will still find that their web queries or email resolves properly.
That is likely the case for China as well (leaving aside censorship
limitations), however, this opens the door to a shift in the future
where the national Chinese root is sole root available in the country.
Third, some have argued that this isn't strictly a new root but rather
an appendage to the dot-cn. While it isn't clear from all the coverage
what is happening technically, there is no disagreement that the
Chinese government has managed to create a series of new TLDs that will
resolve within a country of 110 million Internet users and ICANN had no
role to play in the process. In my view, that is the credible threat.
While I didn't watch the full hearing, it seems to me that the
Rothstein hearing was much ado about nothing. I don't think that
Canadians now have a better sense of Justice Rothstein. To do that, they
need to read his judgments and speeches, which are far more revealing
than anything he said today (and, btw, how is that Justice Rothstein
can speak candidly about past cases such as the Harvard Mouse decision when he visits Oxford but refuses
to say anything before a parliamentary committee?).TagsShareMonday February 27, 2006
My weekly Law Bytes column (Toronto Star version, homepage version) examines new Canadian Supreme Court nominee Mr. Justice Marshall Rothstein, whose lengthy record on patent, copyright, and trademark matters suggests that he may very well challenge the status quo at Canada' s highest court. The column uncovers several speeches by Justice Rothstein that reveal a candid judge who is uncomfortable with incorporating policy into the legal decision making process, who is willing to examine intellectual property laws of other jurisdictions, and who recognizes the limits of intellectual property law.
Justice Rothstein, who appears before a House of Commons committee today, has emerged as a prominent jurist on intellectual property cases at the Federal Court of Appeal. His best-known decision is the Harvard Mouse case, which addressed the question of whether higher life forms, in this case the "oncomouse", could be patented. Justice Rothstein ruled that it could, concluding that there was nothing in the definition of "invention" under the Patent Act to preclude such patents.
Justice Rothstein has also presided over leading copyright and trademark cases. He wrote a concurring opinion in Law Society of Upper Canada v. CCH Canadian, a copyright case that focused on the photocopying of legal decisions. He sided with the majority in a high-profile trademark battle between Lego and Montreal-based Mega Blocks.Read More ...
TagsShareMonday February 27, 2006
Justice Rothstein has been particularly outspoken about the Harvard Mouse decision. In a July 2003 speech at Oxford University, he criticized the Supreme Court's majority decision, which he characterized as featuring a "hesitancy in writing style" which he attributed to the view that "they seem uncomfortable with the result of patenting the oncomouse and they are trying to find reasons to avoid that result." (In hand written notes added to the original text, Rothstein acknowledged that the critique might seem indiscrete but his "inclination to be indiscrete increases in direct proportion to the distance from Canada.")
In another speech a year earlier at the University of Victoria, Justice Rothstein assessed the arguments against his opinion favouring the patenting higher life forms, including fears that patenting encourages the development of genetically modified animals, that we should not commercialize life forms, and that it is not ethically responsible for a court to treat life forms in the same manner as inanimate objects.
In response, Justice Rothstein revealed a judicial philosophy that could impact future intellectual property law cases. While acknowledging the broad moral and social implications of the case, he argued that these are policy issues "for Parliament and not the Court."
Justice Rothstein used the same University of Victoria speech to reflect on the role of global intellectual property laws. He indicated that the patent laws of other jurisdictions (many others had already approved the patenting of the Harvard Mouse) did not factor in his decision, though he opined that "there is a rationale for. . . uniformity where there is no statutory reason against it." In other words, so long as the law does not preclude it, harmonizing Canadian law with the approaches of other countries may be desirable.
Justice Rothstein has also commented on the limits of intellectual property law. In a September 2003 speech to a patent law association in Oregon, he discussed the Lego trademark case in which the toy-maker sought to use trademark law to extend protection over its famous building blocks after its patent rights had expired.
Foreshadowing future reasoning from the Supreme Court of Canada, Justice Rothstein concluded that "I don't think that intellectual property rights are to be interpreted that way. Patents are granted for a limited time. It would defeat that limitation to be able to convert patent protection for a limited period to trademark protection in perpetuity."