Can Canada Learn Anything From Europe on Copyright?

IP Osgoode held an interesting one-day conference in Ottawa last week that brought together many European copyright experts for a discussion on what – if anything – Canada can learn from Europe on copyright. The event opened with a keynote address from Silke von Lewinski, a well-known supporter of the WIPO Internet treaties whose work is frequently cited by those arguing for DMCA-style implementation of digital lock rules.

Von Lewinski, who warned in her speech against NGOs and public interest groups active on copyright issues who she said were really fronts for telcos and ISPs, assured the audience that there were no problems with the digital lock rules in Europe with only one complaint in the many years since it was established (a positioned echoed by Mihaly Ficsor later in the day). It should be noted that other studies, such as this exhaustive one from the Institute for Information Law at the University of Amsterdam commissioned by the European Commission’s Internal Market Directorate General, come to a much different conclusion. It found numerous problems with situation in Europe, recommending:

To remedy the lack of legal certainty and harmonisation with respect to the legal protection of TPMs, and to align the European provisions with the EU’s international obligations under the WIPO Treaties, the EC legislator should consider clarifying the legal framework in four respects. First, the prohibition on acts of circumvention  should only find application in circumstances where the act of circumvention results in copyright infringement. 

Moreover, the European situation provides a good reminder about the flexibility of the WIPO Internet treaties. Ted Shapiro of the MPA appeared on two panels at the conference and noted at one point that the EU has 27 different implementations of the anti-circumvention rules. If Switzerland is added to the mix, there are European countries that link circumvention to actual infringement, countries that exclude access controls, and many differing exceptions that go far beyond what is found in C-11.

Von Lewinski also argued that fair use was “not in our tradition”, a point later challenged by Jonathan Griffiths of the School of Law, Queen Mary University of London. Griffiths warned against importing the Berne “three step test” directly into national law for copyright exceptions such as fair dealing (as some groups have called for in Canada), arguing that it frequently leads to greater uncertainty and overly restrictive interpretations.

A subsequent panel of copyright collectives featured many notable comments with German lawyer Martin Schaefer telling the audience that Europe provided Canada with an example of what not to do and Professor Francois Dessemontent focusing on the lack of copyright collective transparency and the benefits of independent directors. SOCAN appeared on the panel as well, using the opportunity to attack ISPs, search engines, and sites like YouTube, with the claim that their arguments about payment were “pathetic.”

Later panels included Ficsor’s defence of the WIPO Internet treaties and commentary on Bill C-11 as well as criticism from Italian professor Giovanni Maria Riccio, who lamented a “political invasion” on copyright with conflict of interests and lobbying a major problem. For example, he noted that the Italian notice-and-takedown system includes a challenge right for the person who posts the content online, but that their challenge is limited to 50 characters, far less than even a tweet.


  1. Looking at Central and Southern Europe, one can notice that they are in a deep crisis which raises doubts on the validity of their system(s).

    Maybe we’re talking about Northern Europe as an example to follow?

    Or maybe we should also look at the booming economies in Asia and study the history of “copyright” laws there?

  2. …yawn…
    So, a “a well-known supporter of the WIPO Internet treaties” (Von Lewinsky), an employee of the Motion Picture Association (Shapiro), and someone affiliated with the WTO (Ficsor) get together and can freely spill their venom and this goes mostly unchallenged?

    Riccio lamented a “political invasion” on copyright? Well, had copyright not invaded the sphere of what people do in their own homes, there would have been just as much interest as before.

    It’s time we see a couple of other conferences, where the main storybook tales from Big Content get challenged (even though that might not be considered an intellactual challenge).

  3. And they can crack my encrypted connections… how fast?
    So, apparently encrypted connections are now moot. If they can decode it on the fly, why can’t a blackhat when I’m logging into my bank? Answer: they can!
    “Secure connections” are a total false sense of security.

  4. Sorry… I responded in the wrong tab
    Just ignore my above comment

  5. Edit
    It would be nice if you could edit your posts; I misspelled “intellectual” in my previous post.

    @Gregg: I wonder what eavesdropping, I mean surveillance, on your connections has to do with IP Osgoode’s rather one-sided conference.

    I wonder if any proceedings will become available and if they will quote Von Lewinsky as saying the copyright reformist groups are “fronts for telcos and ISPs”. Though the Green Party seems to suddenly be evasive as to their point of view, the party leader and only MP Elizabeth May was a supporter of a 12 year copyright term. It would be only fair to give them a little pointer to what was being said about their party.

  6. Actually, Byte, Dr. Geist and Howard Knopf of Excess Copyright were both in attendance for the entire conference as far as I could tell, and neither made any challenge to any of the ideas being presented, despite many opportunities for questions and feedback.

    I guess it’s easier (and safer) to retreat to the safety of the blog and attack what people do and who they are rather than challenge their ideas in a public forum dedicated to expanding everyone’s understanding of real-world copyright issues.

  7. @Degen
    I guess sometimes it’s wise to observe only as from what I’ve read conditions didn’t seem favourable for an open discussion. That’s why I was hoping to see an alternative conference (though inhibitively expensive) where non-Industry viewpoints can be discussed as well as questioning the basic tenents of intellectual property rights given our new-found independence from the publishing and distribution chains.

  8. Funny, what have you read suggesting conditions at the conference weren’t favourable to open discussion? It was, in fact, the exact opposite of your impression. Howard Knopf has noted the openness – and the free admission – in his own posting about the conference:

    And for anyone looking to see just how balanced the dicsussion was, see the IP Osgoode site postings:

    The comments here, and the original posting, are illustrative of a typical (and now very tired) strategy for attacking real-world balance in copyright. Vague references to “what I’ve read” that suggest something is other than what it actually is.

    I was very encouraged to see a completely different way of addressing the topic at Friday’s conference. A real exchange of issues and ideas based on actual fact, not imprecise suggestions and innuendo.

    As we enter a new, post-C11 era of copyright reform, I hope more people look to this new standard of discussion.

  9. Quotes from ExcessCopyright:
    “Interestingly, the topic of term of copyright was barely mentioned at all. Perhaps nobody thought that there is anything to be learned from Europe’s promiscuous penchant for prolonging copyright terms.” [so one often-mentioned problem (from a user point of view) with copyrights was not even discussed; what would the world look like with a copyright term of 20 years, identical to that of patents?]

    “Ted Shapiro, who represents the movie industry and with whom I have sparred at Fordham, predictably called for strong rights and effective enforcement, but did so in a measured and constructive way.” [asking nicely and politely for something bad, still doesn’t make that anything else but bad – and what else can you call 78 rpm monophonic records from the 1930s still being copyrighted, and taxpayer money being used to enforce this?]

    “arguments that call for the imposition of a highly restrictive reading of the Berne three-step test that would render the long-standing exceptions in many national laws meaningless and would, according to the concerted proponents of this theory, result in virtually no exceptions and limitations” [thank you for not making it worse! How about discussing making it better?]

    Quotes from IP Osgoode:
    “it brought together over 100 academics, industry representatives, non-profit directors, civil servants, lawyers and law students, and almost 60 individuals attending via webcast.” [So of course the Industry was there, but who represented the users?]

    “Prof. von Lewinski’s overview of the EU framework for copyright set the tone for the day,” [right, the one “that warned in her speech against NGOs and public interest groups active on copyright issues who she said were really fronts for telcos and ISPs”]

    “she extolled Europe’s exceptions and limitations as having found the right balance between rights holders and users” [but with no users in attendance, who was there to counter this statement – or even a representative from YouTube?]

    “Laws should allow “heritage institutions” such as public libraries to reproduce orphan works for archiving and other public interest goals” [no condemnation of Industry groups trying to claim ownership of these orphan works? How about alternative suggestions like drastically reducing copyright terms which would also free up a large amount of orphan works? Especially in the “Copyright Reform” panel all options should be open]

    “Hearing the different perspectives—political, judicial and academic—reminded all that finding an answer to the balance question is particularly difficult when even agreeing on what the measuring stick for balance is a contentious debate in and of itself.” [That is true and again the “user” perspective is missing and what’s worse: not even missed!]

    “some contracts are used as work-arounds to European exceptions and limitations provisions. When such behaviour harms EU trade, she argued, it should be deemed anti-competitive and dealt with accordingly.” [Right. If it hurts trade, we’ll do something, but if it’s just consumers’ rights…]

    ““Without authors’ proper protection, less work would be accessible and hence less material would be enjoyed.”” [I guess he must have been joking there; hopefully so, as the alternative would be worse.]

  10. @ Byte
    Is my reply not visible to you? I asked all to IGNORE the comment as it was made in the wrong tab. It doesn’t belong here.

  11. Byte,

    You seem intent on misunderstanding a lot about this conference.

    Michael Geist and Howard Knowpf were in the room and had a forum in which to represent users. They chose not to.

    There were a number of presentations that came from a distinctly user-focused perspective. They simply weren’t overly sensationalized.

  12. @Degen
    Dr. Geist is an academic and is not there to represent users and neither is the Chairman of the Copyright Policy Committee of the Canadian Bar Association.

    If you look at this posting: it seems that policy makers are becoming aware that 2011 is no longer 1886, nor 1967, nor 1996.

    WIPO Director-General Francis Gurry: “either the copyright system adapts to the natural advantage that has evolved or it will perish”. The natural advantage deals with the digital age and the Internet, giving a natural advantage “to one side of the balance, the side of free availability, the consumer, social enjoyment and short-term gratification”.

    Here’s another quote from Gurry: “Copyright should be about promoting cultural dynamism, not preserving or promoting vested business interests,” again this is WIPO, not exactly a “front for telcos and ISPs”.

    Don’t think for a moment I am anti-copyright, or that I believe that “information wants to be free”. But I am not blind and am old enough to have seen it all happen, starting with the audio cassette in the 70s (remember those high-speed dubbing decks?), the “copy parties” at early computer enthusiast meetings, the pre-Internet BBS scene (with those expensive US Robotics HST modems), multi-CDROM sets that contained cracked software, the introduction of the .mp3 standard, .binaries newsgroups on Usenet, filebots on IRC, ftp sites, Napster (when p2p really took off), eDonkey and BitTorrent, KaZaA, etc. This is a trend dating back decades and cannot be stopped; TPMs and anti-circumvention might be the Last Hurrah of the “vested business interests”.

    The sooner the discussion is about what “copyright”, for lack of perhaps a better term, should be in the current day and age, and what can be done to ensure new works will continue to be created, the better. Those that want to continue to live in a 1886-dominated world will find themselves obsolete.

  13. @Degen:

    Since “Jurassic Park”, dinosaurs are copyrighted, patented, trademarked and TPMed by Steven Spielberg. You need a license in order to behave like one.

  14. ,..
    @Byte: “Don’t think for a moment I am anti-copyright,”

    And what exactly would be wrong with being anti-copyright. How did be become conditioned to accept it without blinking. It’s so unnatural. Just because some deep-pocketed interest groups will call you a “pirate”?

  15. James Plotkin says:

    True neither Dr. Geist nor Mr. Knopf asked any questions. It should be pointed out that each of the four panels finished late which shortened the question periods. The moderators also made an attempt at asking questions posed online by viewers of the simultaneous webcast.

    Honestly, there were basically two questions allowed per panel…Some people can find fault in anything…I suppose he shouldn’t have blogged about it simply because he didn’t or couldn’t ask a question. Your logic is nothing short of flawless.

  16. @Nap
    The reason I am in favour of something like “copyright” is that it allows you to publish something, as in *make public*, without it immediately becoming part of the *public domain*.

    In this age, a lot of traditional “products” that are directly affected by copyrights are nothing more than a bunch of 1’s and 0’s arranged in a meaningful way. With terabytes of storage space and 15Mbit/sec as an entry-level Internet connection, there is no technical obstacle for these products to spread fast and wide at near-zero variable cost (data caps).

    Could we think of alternative ways that would eliminate the need of copyrights? Sure, the islamic world banks without interest. Jean Michel Jarre once made an album that was pressed in a single copy (encouraging people to pirate it when it was broadcast on RTL Luxemburg radio by the way). That could work; recoup your costs and a reasonable profit margin in one blow. Put up 30 second clips on your website and take pre-orders; as soon as you hit your sales mark, the album gets released. Risky, but it could work. Would it be practical? I doubt it.

    Copyright needs to be totally rid of the French “droit d’auteur” influence and redefined as a limited time (5? 14? 20? years) meant to allow recoup cost. Anything else but for reason of recouping costs is no longer realistic. You want to keep control of your work to yourself? Sure, keep it in your mom’s basement and make sure none of your friends go in there. But once you publish it, it’s out there and you can’t control billions of republishers.

    The other side is F/OSS and Creative Commons works. Without copyright, GNU Public License type schemes, forcing people to make available the source code of their improvements should they republish, wouldn’t be possible to enforce.

  17. ….
    @Byte: “The other side is F/OSS and Creative Commons works. Without copyright, GNU Public License type schemes, forcing people to make available the source code of their improvements should they republish, wouldn’t be possible to enforce. ”

    Well let’s see why the GNU project was started:

    With no copyright laws in place, would Richard have started the project? Would there had been any need for it?