The copyright mistake at Concordia – a poetry centre scanned several books and posted them on the Internet without permission – has attracted considerable attention in the press and social media. Kate Taylor wrote a Globe and Mail column placing much of the blame at the feet of fair dealing, while I responded with a post yesterday that noted that no one claimed that the posting of the full-text books was permissible and that Concordia was an ill-advised target for fair dealing criticism given that it has a copyright collective licence with Copibec that compensates for copying on campus.
While the focus of the Taylor column and my response was on fair dealing and collective licensing, the Taylor column also included several references to the use of a scanner to digitize books. In particular, it concludes by stating that “Ottawa needs to plug that education loophole good before somebody tries to drive a $10,000 book scanner right through it.”
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Globe and Mail columnist Kate Taylor published an article on Friday titled Concordia University Caught on the Wrong Side of Copyright, which focused on a copyright violation at the Montreal-based university. While Taylor thinks that the Concordia incident demonstrates the problems with copyright and fair dealing (she writes “scofflaws in the universities have been egged on in Canada by the 2012 amendments to the Copyright Act that included a vaguely worded, broad-brush education exemption), a closer look suggests that the case actually says far more about the problems with collective licensing.
The issue at Concordia involved unauthorized scanning and online posting of several poetry books (I will have a follow-up post on the scanning issue). Once the publishers complained, the books were quickly removed. The director of the centre responsible for the posting acknowledged the error and indicated that he planned to purchase five copies of each book, which is equal to the number of graduate students who attend a weekly reading group. That would seem to be the end of the issue as no one suggests that the posting of the entire books were permitted or consistent with university policy, the issue was addressed immediately, and there was an attempt to compensate for the perceived losses.
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The Trans Pacific Partnership effectively died with the election of U.S. President Donald Trump, who wasted no time in announcing that the U.S. would not move forward with the agreement. Since the TPP cannot legally take effect without U.S. ratification, the decision to withdraw effectively kills the deal. The remaining TPP countries will meet in Chile next week to discuss what comes next. In advance of that meeting, Foreign Affairs Minister Chrystia Freeland appeared before the Senate on Tuesday and was specifically asked by Senator Joseph Day about the possibility of trying to salvage the agreement.
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The U.S. Trade Representative is conducting a hearing today on the Special 301 report, its annual list of countries it claims have inadequate intellectual property protections. Several countries will appear alongside many lobby groups. I’ve previously posted on how the report from the IIPA, which represents the movie, music, software and publishing industries, badly misstates Canadian law. Indeed, with recent court decisions, Canada now has one of the toughest anti-piracy rules in the world.
I recently obtained documents under the Access to Information Act that confirm the Canadian government’s rejection of the Special 301 process. Canada will not bother appearing today largely because it rejects the entire process. According to a memorandum drafted for Canadian Heritage Minister Melanie Joly after last years’ report:
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Canada last overhauled its copyright law in 2012, bringing to a conclusion more than a decade of failed bills and lobbying pressure. The public debate over the Copyright Modernization Act was often framed by disputed claims that Canada was weak on piracy, with critics arguing that updated laws were needed to crack down on copyright infringement. As the government prepares to conduct a statutorily-mandated review of the law later this year, the landscape has shifted dramatically with court cases and industry data confirming that Canada is now home to some of the toughest anti-piracy rules in the world.
My Globe and Mail column notes that the change in Canadian law is best exemplified by a ruling last week from the Federal Court of Canada involving the sale and distribution of “modchips”, which can be used to circumvent digital controls on video game consoles. Nintendo filed a lawsuit against a modchip retailer in 2016, arguing that the distribution of modchips violated the law, even without any evidence of actual copying.
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