Sara Bannerman

Canada's bid to join TPP threatens access for blind, print disabled

2012-01-20T08:00:00.012-05:00

There is a danger that, in Canada's quest to join the Trans-Pacific Partnership Agreement (TPP), Canada may cede whatever leadership it has gained in the field of progressive copyright provisions. Canada's Bill C-11, the proposed "Copyright Modernization Act", includes provisions that would allow people who are blind and print disabled to circumvent Technological Protection Measures(TPMs) to access works (s. 41.16). These provisions, while they have been criticized as not going far enough, at the same time could put Canada on the map as being among the first to enact such provisions for the benefit of the blind and print disabled. Under the last leaked text of the American proposal for the TPP, these types of provisions would not be allowed as a permanent exception. The proposal enumerates (Art. 4, 9 (d)) the various possible permanent exceptions to TPM infringement, and these do not include a specific exception for the benefit of people who are blind and print disabled. The proposed TPP allows for temporary exceptions, which could include an exception for the blind and print disabled, but these would have to be subject to review or renewal every 3 years (Art. 4, 9(d)(viii)). Bill C-11 does not provide for such a review/renewal process.

The other possibility that has been suggested by many commentators, is to limit the provisions of Bill C-11 so as to prohibit only circumvention for infringing purposes.

All of this comes on the heels of difficulties at WIPO in the negotiation of a treaty for the blind and visually-impaired, where it seemed progress had been swifter until December.

If Canada joins the TPP negotiations, this could provide an opportunity to negotiate on the TPP TPM provisions, as well as other improvements to the TPP. (KEI suggests a few, including new norms on the sharing of accessible works, and requiring open access for publicly-funded research.) On the other hand, if Canada is not successful in negotiating better terms, then Canada may have given away a leading and innovative legal solution to an important problem. There is a danger that, under the TPP, Canada could abandon the rights of those who are blind and print disabled to access works.

Canadian foreign affairs reporting: a critique

2011-11-08T17:41:00.004-05:00

Canadian news outlets focus too much on American news.

This is the conclusion of an article just published in the Canadian Journal of Communications by Abby Goodrum and Elizabeth Godo Elections, titled "Wars and Protests? A Longitudinal Look at Foreign News on Canadian Television."

"American content has steadily increased," say the authors. "American news is far more common [in Canadian foreign news] than that of any other nation, and past research has shown that representation of a country in news media is a predictor of favourable public opinion regarding that country. The nature of the coverage has been demonstrated to be irrelevant; it matters simply that the audience is exposed to the country in question (Perry, 1990; Semetko et al., 1992)." (472)

According to the authors, foreign news in Canada tends to "focus on human interest and domestic politics among culturally similar nations, and international conflicts, wars, and violence elsewhere," according to the authors. The “Third world”, according to the article, is portrayed "as rife with conflict and directly opposed to the stable, civilized west", a problem even more worrying given "the diversity of Canadian society and the struggle of Canadian immigrants to see themselves reflected in the national news of their new home country." (472)

This fact, the authors say, "paints a bleak picture for Canadian citizens, whether first-generation or otherwise, whose knowledge of the world and connection to their country of origin is based on what they see in the news" (473).

Possible Major Shakeup in International IP System after US withdrawal of funding from UNESCO

2011-11-01T07:03:00.015-05:00

The United States cut funding to UNESCO yesterday in response to the approval of the Palestinian bid for membership in UNESCO. The CBC reports this morning that Canada is now considering whether it should follow suit. Canadian Foreign Affairs Minister John Baird is considering "how much" support it gives, perhaps in place of complete withdrawal. The US also plans to retain membership in UNESCO despite the funding cut, according to the CBC.

Palestinian membership in UNESCO opens the door to Palestine joining WIPO, and a similar withdrawal of United States funding from WIPO. There is no indication at this point as to whether Canada might follow suit.

The United States' exit from UNESCO in 1984 led to a major reorganization of international intellectual property relations. It ultimately resulted in the United States' joining of the WIPO Berne Convention, the decline of UNESCO's Universal Copyright Convention into irrelevance (also due to the establishment of the TRIPs Agreement) , and the rise of WIPO and the Berne Convention as the unrivaled cornerstone of international intellectual property and international copyright respectively. That led to a new era in intellectual property normsetting.

Non-payment of membership fees can lead to the loss of voting power in WIPO bodies. Were the United States to stop its payments, and were other countries like Canada to follow suit, the policymaking initiatives of the United States, having lost power in WIPO, would likely be taken to other forums. This raises the prospect of a major shakeup within UN bodies, and major changes to the shape of international intellectual property institutions and relations.

Update: The AP confirms that Canada will reduce funding to UNESCO.

Open E-books to Read

2011-10-22T13:54:00.005-05:00

One of the problems with DRM on e-books is that locking e-books to a particular platform also locks the book to particular reading software. I like e-books for a lot of reasons: their portability and the convenience of being able to purchase them instantly being among those reasons. However, one of the biggest potentials of e-books, and one that is curtailed by DRM, is the potential of using technology platforms to facilitate serious reading and learning.

Software can facilitate reading and notetaking, or it can make reading and notetaking difficult. The platforms I've used to read ebooks are fine for reading novels, but terrible for browsing through a book, and terrible for note-taking. That's why e-books are not suitable as textbooks or for any kind of serious reading that requires note-taking. The note-taking features provided in a lot of the software is not only awful; it ties the notes to the software. Upgrading to a different technology or software can entail losing not only one's books but also one's notes. Export features are also dismal, in my experience.

E-books should be open, and note-taking formats should be saved in and exportable to standard formats. This would allow true competition among reading platforms, so that when one does upgrade to new technology one can be assured of being able to bring one's books, and one's notes, along to the new platform.

There is nothing so fundamental as reading and learning. Business models should not be built on systems that short-circuit technologcial potentials that could otherwise facilitate reading and learning. Locking up ebooks is wrong and backwards, and especially bad for serious reading and learning.

That's not modernization

2011-10-19T08:17:00.003-05:00

Debates began yesterday in Canadian Parliament on copyright reform. Conservative Industry Minister Christian Paradis introduced the bill and its various features, noting that various common private non-commercial uses of works would be reasonably allowed, that provisions would be created allowing for certain uses of works such as by the visually impaired, and that damages for copyright infringment would be reduced to something much more reasonable than what we have seen in some other countries. All of this is excellent and signals that the Canadian govenrment is aware of and responsive to the many hurdles that Canadians face as users and creators of copyright works.

However, Minister Paradis also pointed a feature of the bill that is highly criticized. He noted that many of the copyright exceptions of the bill - those very features that make it so reasonable - "do not apply to works protected by a technological protection measure or digital lock." This, he says, is because "Copyright holders told us that their digital and on-line business models depend on the robust protection provided by digital locks."

Copyright holders should not be given free reign and a different copyright - a much broader copyright - in the digital environment. Public interest provisions should not suddenly disappear in a digital environment. The digitial environment is one where public interest exceptions matter the most. Do we want a digital learning environment where books are locked away from legitimate readers, paid-for music can be locked from its paid-up owner, and where publicly-owned content can be locked away from its very public? Of course not!

Although the act is officially titled the "Copyright Modernization Act", the modernization of Canadian copyright is held back by a different kind of piracy: one that creates provisions that would allow individuals and corporations to lock up and hold hostage content and uses that should righly be free. That's not modernization.

The state of IP multilateralism

2011-10-01T14:37:00.009-05:00

Michael Geist reports that Canada ~~will sign~~ has signed the new Anti-Counterfeiting Trade Agreement (ACTA)~~, possibly this weekend~~. However, the word is that ACTA may be short on signatures and may never come into force.

The possibility that ACTA would not come into force is one of several possibilities that I mentioned in my paper "WIPO and the ACTA Threat", forthcoming with the International Journal of Technology Policy and Law and published in a previous working-paper version in the PIJIP Working Paper Series.

If the agreement does fail to come into force, it would be more good news for the World Intellectual Property Organization. ACTA was a treaty negotiated outside of a true multilateral framework - an agreement made behind closed doors on an invitation-only basis. WIPO's Director General has called ACTA "a bad development" for WIPO and broader multilateral processes, a response to multilateral institutions' weakness and recnet inability to conclude broad-based treaties. IP-Watch reports progress in the recent negotation of a new audiovisual treaty, calling this 'a boost' to the multilateral intellectual property system. Another agreement for visually impaired also seems to be progressing well.

A boost for WIPO is relatively good news for weaker parties who had no voice in the development of ACTA but who do have some voice at WIPO.

Update: IP-Watch has an interesting article on where WIPO stands on its enforcement activities.

Royalty Map

2011-09-29T12:06:00.002-05:00

This map, from Worldmapper.org, shows where the world's royalty money goes.

Nair on Fair Use

2011-09-01T10:57:00.003-05:00

Meera Nair writes about some Canadian universities' decisions to drop Access Copyright's blanket copyright agreements; said universitites will now negotiate copyright agreements independently, making use of fair dealing where it applies, and paying for uses beyond that directly to publishers. She outlines the fascinating history of fair use in the United States, its evolution, and the recent developments on fair dealing in Canada.

Nair points out that we are now, in Canada, standing at a crossroads. Universities are deciding how they will interpret fair dealing in Canada, and she fears that univerities will interpret it too narrowly. Universities, Nair points out, have a tremendous influence on students. She fears that, in taking a conservative interpretation of fair dealing, universities will influence students, shaping their ideas of fair dealing and causing them to forget the full scope of their rights as copyright users. This could diminish the shape and scope of Canadian fair dealing for generations to come.

Canadian Copyright: History, Change, and Potential

2011-05-06T18:26:00.002-05:00

My article, "Canadian Copyright: History, Change, and Potential", has been published by the Canadian Journal of Communication.

Abstract:
The first part of this article reviews Canada’s international copyright history and the role Canada has played in international copyright from the nineteenth century to the present day. In part two, the author asks whether we can be optimistic or pessimistic about Canada’s role, and the role of international institutions more generally, in promoting solutions to the social policy and social justice concerns raised by the expansion of intellectual property. The author argues that Canada’s history, while demonstrating Canada’s potential to support progressive change, has not borne out certain middle power ideals.

E-book stores and Canada

2011-04-03T11:19:00.003-05:00

The Globe and Mail posted an interesting story on Canada's position in the e-book market.

The question is reminicent of a historical controversy surrounding Canadians' ability to import cheap American editions of British books (cheap due to weak American copyright protection for foreign works), rather than buying the legitimate leather-bound (and more expensive) English editions. The debate rises again, with fears that Canadian consumers will circumvent online e-book retailers licenced to sell books in Canada, purchasing instead from cheaper foreign retailers and undercutting profits that underwrite Canadian authors.

$10 All-You-Can-Download fee proposal

2011-03-09T01:06:00.004-05:00

The Montreal Gazette reports that Songwriters Association of Canada is proposing a $10 monthly internet fee that would give Canadian consumers a licence download unlimited numbers of songs. They propose trials by the end of the year.

E-book users' Bill of Rights

2011-03-06T05:22:00.003-05:00

From the Librarian in Black and Andy Woodworth; with an interesting discussion of the eBook User's Bill of Rights on BoingBoing:

The eBook User’s Bill of Rights is a statement of the basic freedoms that should be granted to all eBook users.

The eBook User’s Bill of Rights

Every eBook user should have the following rights:

the right to use eBooks under guidelines that favor access over proprietary limitations
the right to access eBooks on any technological platform, including the hardware and software the user chooses
the right to annotate, quote passages, print, and share eBook content within the spirit of fair use and copyright
the right of the first-sale doctrine extended to digital content, allowing the eBook owner the right to retain, archive, share, and re-sell purchased eBooks

I believe in the free market of information and ideas.

I believe that authors, writers, and publishers can flourish when their works are readily available on the widest range of media. I believe that authors, writers, and publishers can thrive when readers are given the maximum amount of freedom to access, annotate, and share with other readers, helping this content find new audiences and markets. I believe that eBook purchasers should enjoy the rights of the first-sale doctrine because eBooks are part of the greater cultural cornerstone of literacy, education, and information access.

Digital Rights Management (DRM), like a tariff, acts as a mechanism to inhibit this free exchange of ideas, literature, and information. Likewise, the current licensing arrangements mean that readers never possess ultimate control over their own personal reading material. These are not acceptable conditions for eBooks.

I am a reader. As a customer, I am entitled to be treated with respect and not as a potential criminal. As a consumer, I am entitled to make my own decisions about the eBooks that I buy or borrow.

I am concerned about the future of access to literature and information in eBooks. I ask readers, authors, publishers, retailers, librarians, software developers, and device manufacturers to support these eBook users’ rights.

These rights are yours. Now it is your turn to take a stand. To help spread the word, copy this entire post, add your own comments, remix it, and distribute it to others. Blog it, Tweet it (#ebookrights), Facebook it, email it, and post it on a telephone pole.

To the extent possible under law, the person who associated CC0 with this work has waived all copyright and related or neighboring rights to this work

E-book library controversy

2011-03-06T04:48:00.003-05:00

For some time now, it has been possible to check out e-books from many local public libraries. While the service has a few important flaws, it's also a wonderful service that expands the range of books available to e-book readers. Importantly, public library e-book lending is a way of expanding the role and philosophies of local public libraries. Library service is especially important given the extremely high prices of some e-books.

Harper Collins, one of the publishers that licenses e-books to libraries for check-out, has recently proposed to change its library licence. Under the new provisions, a book could only be checked out 26 times before the library would have to obtain a new licence. Cory Doctrow reports. HC argues that libraries, in the case of hardcopy books, have to repurchase books from time to time, and that the repurchase would, in any case, come at a discount. It appears that libraries have been purchasing the lending rights for the e-books at or below the regular price of the ebook. The 26-lending limit would increase the price of books to libraries, in many cases by 5, 10, 20, 30 or more times, depending on the lasting popularity of the book. The new strategy is a transparent attempt to ensure that the publisher can milk libraries and each book for all they're worth for as long as a book is being checked out.

Academic libraries, in my experience, have not yet adopted e-book lending or the international epub standard. Some offer a form of e-books for viewing on the screen in very clumsy browser applications that are totally inadequate for scholarly reading, with incapacitating limitations on printing, note-taking, copy-pasting; and often with limitations on simultaneous users that preclude their use for course readings. All the same, were the HC principle to be accepted and established, it would be a very big problem for academic libraries as well. Not only are academic books already overpriced in the extreme, making a 10x; 20x; 30x or more increase all the more shocking; this type of licensing system could inhibit the adoption of ebook lending in academic libraries before it even gets started.

In response, some libraries are boycotting Harper Colllins.

Wallflowers at the Revolution

2011-02-06T17:23:00.003-05:00

The NYT's Frank Rich:

A month ago most Americans could not have picked Hosni Mubarak out of a police lineup. [...] And so now — as the world’s most unstable neighborhood explodes before our eyes — does anyone seriously believe that most Americans are up to speed? [...]

The live feed from Egypt is riveting. We can’t get enough of revolution video — even if, some nights, Middle West blizzards take precedence over Middle East battles on the networks’ evening news. But more often than not we have little or no context for what we’re watching. That’s the legacy of years of self-censored, superficial, provincial and at times Islamophobic coverage of the Arab world in a large swath of American news media. [...]

Perhaps the most revealing window into America’s media-fed isolation from this crisis — small an example as it may seem — is the default assumption that the Egyptian uprising, like every other paroxysm in the region since the Green Revolution in Iran 18 months ago, must be powered by the twin American-born phenomena of Twitter and Facebook. [...]

It may be the case that Facebook had a role to play and even, as Jennifer Preston argues, became an outlet and organizing platform for protesters and Egypt. However, there are many, many other factors, alongside Facebook, that those of us who are so distant from the events and context just don't have a grasp on. Rich is right: the mainstream media are responsible, to some extent, for Western ignorance. New media might play a role in correcting that ignorance to some degree. In a world where misguided Western intervention has done so much harm, that, it seems to me, is the more important story.

Stiglitz in Egypt

2011-01-30T09:06:00.003-05:00

Ahmed Abdel Latif comments on Joseph Stiglitz's recent address at the American University in Cairo. Although Stiglitz didn't mention current events in Egypt directly, he emphasized the importance of an innovative society, praised the Brazilian government's move to adopt open source software for its governmental and public institutions, and emphasized balance in the commercialization of university research, emphasizing the importance of publicly funded initiatives in innovative socieities. As well, he encouraged developing countries to take advantage of the flexibilities in intellectual property agreements.

Revolution and Social Media

2011-01-18T10:18:00.008-05:00

The Egyptian government today took the unprecedented move to shut down Internet and mobile communications in the face of a massive protest against the Mubarak regime. This follows the protests in Tunisia that, earlier in January, caused Ben Ali to leave office. Alongside these political developments a public debate has been taking place on the role of social media like facebook and twitter in protest movements.

Clay Shirky, in the most recent issue of Foreign Affairs, argued that social media makes it possible for publics to coordinate massive and rapid protests, contributing to the political power of publics and democracy. Writing before the events in Tunisia, he cited the 2001 impeachment trial of Philippine President Joseph Estrada, in which coordinated protest prevented the setting-aside of important evidence against the president. He argued that the United States, rather than focusing on freedom of information on the Internet and the censorship of major American online news outlets, should focus its foreign Internet policy on access to social media, encouraging its general use.

Malcolm Gladwell, in his recent piece in the New Yorker, took the opposite view. "The revolution will not be tweeted," he proclaimed, saying that social media fosters only weak ties and commitments - not the kind of political commitment that brings protesters to face down difficult and even dangerous situations and to take the heroic stands necessary for true change to take place.

Others are more ambivalent about the power of social media. During the recent protests in Tunisia, Ethan Zukerman posted a piece that asked why the Tunisian protests had received so little mainstream media attention. Zukerman proclaimed himself agnostic about the role of social media, and expressed frustration with the failure of traditional media to take up the issue. [another agnostic]

The Atlantic has posted a more recent analysis of the role of social media in Tunisia. It features Jillian York of the Berkman Center for the Internet and Society, who believes that facebook creates relatively strong ties, and that such ties were important in leading Ben Ali to leave office on January 14. Not only does Facebook allow the circumvention of censorship in other media; Facebook, the Atlantic proposes, created strong ties by allowing individuals to show, share, and amplify the injury, pain, and protest that was taking place - especially through video. The Atlantic reports one individual as saying that facebook went from being "a waste of time or procrastination tool "to a primary source of news about the events.

Today's shutdown of Egyptian communications demonstrates, if not the power of social media, then its perceived power. However, the true test may come in the days ahead, as what is tested is not the power of social media, but the power of people without it.

Further to C-32 & the A2K Problem

2011-01-17T17:12:00.004-05:00

Further to my op-ed, which appeared in today's Hill Times (full text), it is worthy to note that Canada has spoken out at the World Intellectual Property Organization calling for movement at the international level to encourage the export of special format editions for the visually impaired. Currently, Canada's copyright bill, C-32, would allow the export of special-format editions of works by Canadian authors or authors of the country of destination, but not works by authors of a third country. My op-ed suggested that Canada could do more. It's worthy to note, however that Canada has in fact called for an international solution that would also cover those third-country works (see here, p. 41). While not as bold as leading the way by example, Canada's call is definitely a good move.

C-32 & the A2K Problem

2011-01-17T08:58:00.006-05:00

My op-ed, "The A2K problem: copyright, accessibility and the future of copyright in Canada," appears in today's Hill Times. In it, I argue that Canada's Bill C-32 is an early move among international efforts to address the copyright needs of the visually impaired, easing the difficulties of creating and making available accessible-format works. It could set an example for other countries and international negotiations to follow. However, I argue that Canada could do more to address those needs than what is contained in C-32. Canada’s efforts should rise to the standard of a new age of access to knowledge, instead of becoming part of the A2K problem.

Carleton University has posted the full op-ed here.

Future of WIPO's Development Agenda

2010-12-16T18:21:00.004-05:00

A new article by Jeremy de Beer and I has just been published in the WIPO Journal. A draft version of the article is now available on SSRN. In this paper we present the results of a workshop held in March 2009. Scholars, diplomats, and WIPO staff contributed their thoughts on the future of WIPO's Development Agenda.

Foresight into the Future of Wipo's Development Agenda
The Development Agenda for the World Intellectual Property Organization (WIPO) was proposed in 2004 to reinvigorate the operations of WIPO, given its mandate as a special operating agency of the United Nations (UN).

Foresight into an array of alternative scenarios is not only warranted but necessary in order to cope with possible developments or, even better, to influence the future. Using the foresight research techniques of scenario building and backcasting, an expert working group met in Prangins, Switzerland, in March 2010 to discuss progress of the agenda's implementation, and to identify a range of future possibilities and corresponding strategic actions. This article outlines analysis and insights regarding the Development Agenda accumulated over several years of research and meetings, culminating in that retreat. It highlights a number of priorities and possible research directions, particularly in the context of a transition in strategic focus from short to medium and long-term thinking about the impact of WIPO's Development Agenda on global knowledge governance.

This article outlines, in the first part, the background of the WIPO Development Agenda and where it stands today. In the second part, the authors outline the immediate challenges and opportunities facing the Development Agenda, based on the insights and analyses of the working group, suggesting that the foresighting and backcasting methods used are useful instruments in planning and envisioning the future of the Development Agenda.

Latif on WIPO reform

2010-11-13T18:34:00.003-05:00

Ahmed Abdel Latif has an opinion piece in Intellectual Property Watch, following on Lawrence Lessig's recent visit to WIPO. Both ask whether the international intellectual property system is in need of fundamental reform. Lessig called for "an overhaul of the copyright system which he says does not and never will make sense in the digital environment." Latif argues that "Professor Lessig is right. His call for global copyright reform is welcome and timely. However, past WIPO led efforts in this area have rather been unsuccessful."

Past changes to the international copyright system, as embodied in the Berne Convention for the Protection of Literary and Artistic Works (1886), have mostly resulted in the strengthening of copyright rules to the benefit of rights holders. All attempts to reform it to the benefit of users of copyrighted materials, such as consumers and developing countries, have either failed or been of limited effectiveness such as in the case of the Berne Appendix (1971) which contains special provisions for developing countries.

The recent WIPO reform initiative embodied in the WIPO Development Agenda, he notes, is still underway, and Latif questions whether some current WIPO initiatives conform with the letter and spirit of the Development Agenda. He calls for reform that takes place through "an open, inclusive and participatory consultation process where ‘all of us’ have a say."

The perils of an E-book world

2010-11-01T23:22:00.003-05:00

Morten Rand-Hendriksen has a great post called "The Perils of an All-digital World" about e-books, their relationship to democracy, and the future of access to information in a world of e-books.

Kindle lending

2010-10-26T00:54:00.005-05:00

Kindle has announced upcoming functionality for the Kindle that will allow users to lend their books to others. The loan period will be 14 days and the book will be disabled on the home account while the loan is in effect.
While this seems like a nice little feature, it demonstrates an old-world mentality that emulates, rather than helping to overcome, the scarcity of books and reading materials.

Copyright: Characteristics of Canadian Reform

2010-10-08T03:56:00.008-05:00

My chapter "Copyright: Characteristics of Canadian Reform" appears in Michael Geist's book, From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda. The book will be launched October 14 at the University of Ottawa. The introduction to the book, by Michael Geist, is already available online.

My chapter, available here and in revised format in the Hill Times, places bill C-32 in the context of Canadian copyright history, arguing that Canadian copyright has traditionally focussed on copyright independence, safeguarding the interests of Canadian consumers as well as Canadian creators, finding innovative solutions to meet the needs of both consumers and creators, and support for international copyright and copyright multilateralism. It argues that the made-in-Canada elements of C-32 are relatively narrow compared to previous bills that asserted a made-in-Canada stance on the broader issue of anti-circumvention, and that C-32, while including innovative solutions for the benefit of specific interests such as the print disabled, internet service providers, and mash-up video creators, departs from the tradition of maintaining maximum independence and safeguarding consumer interests on the issue of anti-circumvention measures.

Update: my chapter is now available online here.
Update 2: my Op-ed based on the chapter has been published in the Hill Times (to subscribers/for purchase).

The Great Firewall of America: Mueller

2010-09-24T22:41:00.000-05:00

Milton Mueller:

A bill introduced in the U.S. Senate on Monday would start to put into place an infrastructure for maintaining a black list of censored domain names. The purpose is not political censorship but blocking in the name of copyright and brand protection. The proposed bill is called the Combating Online Infringement and Counterfeits Act (COICA). It’s a radical change in internet policy masquerading as a strengthening of copyright enforcement.

Stevie Wonder on Declaration of Freedom

2010-09-21T07:13:00.002-05:00

In what is possibly the coolest thing to have happened at WIPO ever, Stevie Wonder calls on WIPO to fix copyright and enact "a declaration of freedom to secure to every single human being the opportunity to live the freedom knowing that they have accessibility to information throughout the world."

Performing for the WIPO audience, Wonder noted, "The reason that you know this song is because it's accessible to you. You can read the words; maybe sang this song; maybe danced to this song." "I'd like to see a declaration of freedom for those who are blind or visually impaired - not just those who are blind - those who are deaf, those who are paraplegic, quadriplegic or other."

Promising a celebratory concert at WIPO next year if this is achieved, Wonder left off with the words, "It's on you - do what you gotta do."

See IPW.

Stevie Wonder on Copyright from Intellectual Property Watch on Vimeo.

Stevie Wonder At WIPO General Assemblies from Intellectual Property Watch on Vimeo.

WIPO and the ACTA Threat

2010-09-16T06:05:00.004-05:00

My paper, WIPO and the ACTA Threat, has been published in the Program on Information Justice and Intellectual Property at the Washington College of Law. Please send any comments to sara.bannerman@gmail.com.

Abstract
The new Anti-Counterfeiting Trade Agreement (ACTA) has been seen as a potentially existential threat to the existing World Intellectual Property Organization (WIPO) – as a new plurilateral institution that could replace the older multilateral organization. The ACTA threat to WIPO has a number of predecessors. WIPO’s centrality to international intellectual property norm-setting encountered its first major challenge in 1952 when the Universal Copyright Convention was established under UNESCO. It encountered a second major challenge with the establishment of the Agreement on Trade-Related Aspects of Intellectual Property (the TRIPs Agreement). The ACTA challenge thus potentially represents a third instance where a major competing norm-setting institution has challenged WIPO. In this paper I review past instances where WIPO has been challenged by an outside norm-setting institution and the responses taken to those challenges. Second, I outline the main proposals for an ACTA institution. Third, drawing on the past instances, I outline the various possible forms that an ACTA-WIPO relationship could take, and various strategies that WIPO could use to maintain its role in the international intellectual property system. Finally, I outline a number of public policy concerns that the institutional proposals for ACTA pose.

WIPO transparency threatened

2010-09-06T20:12:00.003-05:00

WIPO held its annual Program and Budget Committee meeting last week. The Committee discussed ways that it might better make its meetings and documents available in multiple languages. WIPO operates in Arabic, Chinese, English, French, Russian and Spanish, and also Portuguese under specific conditions. In examining ways to make translation costs more affordable, one of the proposals is to stop producing verbatim reports of its meetings, producing instead only a summary report:

A third measure to reduce translation workload, already adopted by the United Nations Office at Geneva (UNOG) and WHO, would consist in replacing the current costly practice of preparing verbatim reports with summary records to be generally limited to approximately 30 pages (compared with 100 to 250 pages for verbatim reports). They would be limited to statements of fact (agenda, participants) and a record of decisions and recommendations. The Secretariat estimates that this measure would enable the overall volume of reports to be reduced by some 70 percent or around 1360 pages per year.

Instead, a recording system would replace the verbatim reports:

In the current biennium, a new digital conference room recording system will replace the present analog system. Upon final installation and testing of the new system, changes to the reporting method may be proposed by the Secretariat that will include the digital recording of proceedings to replace the current practice of preparing verbatim reports. This same system could be extended to the Assemblies of the Member States of WIPO for which the elimination of verbatim reporting combined with electronic records of interventions could result in considerable savings that could be further used towards extended language coverage.

Unless the digital recordings are made publicly available, as the verbatim reports of meetings currently are, WIPO is in danger of sacrificing a great deal the transparency from which it derives its legitimacy as against other forums. Without proper records of meetings, scholars, NGOs, and those unable to attend the meetings will be unable to properly follow WIPO activities.

Multilingualism is extremely important for WIPO and all international organizations, and is a challenge for all. WIPO is very good at finding money for all kinds of projects. There is no reason for transparency to be sacrificed in the name of multilingualism; both transparency and multilingualism are core features of international legitimacy.

The Net and Other Election Issues

2010-08-25T03:03:00.003-05:00

There are a few issues that have become an election issue in Australia and have not been as high on the Canadian election agenda. One is the Internet. Australians are rightly concerned about the next generation of high speed Internet.
Other issues on the Australian agenda not seen in Canada:
fishing
camping
shooting (ok... so a few common issues)
boiling the billy (?)
...and of course, the deadly flying foxes.

Do I Sound Illegal to You?

2010-08-19T19:45:00.004-05:00

Sounding Out! has an interesting post about how law (Arizona's anti-illegal-immigration law) and sound (sonic profiling) can be used to target undocumented workers and make them subject to deportation, police harassment, and criminalization - and how remixers and other performers are using sound to fight back.

Turning tide? E-book text-to-speech exception

2010-08-19T05:28:00.006-05:00

The Daily Finance has an article on how the Library of Congress' recent ruling allows the circumvention of digital locks in order to use ebook text-to-speech features. Kevin Smith thinks the latest rulemaking represents a turning of the tide in US copyright policy.

The Future of the University

2010-08-17T18:07:00.004-05:00

The mandate of P2PU - the peer-to-peer university - is "Learning for everyone, by everyone, about almost anything". Going beyond open courseware, P2PU creates actual classes - online communities - that students can join to take the courses. Course designers can participate in an online course about designing courses!
Does P2PU offer formal credits? Not yet.

Humane Reader Project

2010-08-05T14:01:00.003-05:00

Ted Striphas writes about the Humane Reader project. Noting that e-books and the digitalization of reading "threatens to freeze large swaths of the world’s population out of one of the most important vehicles for literacy", Striphas points to the Humane Reader project, an open source-based ebook that is supposed to cost $20 bulk.

E-books and the new copyright bill

2010-05-07T10:01:00.004-05:00

As the Canadian government prepares to unveil its new "anti-consumer" copyright bill, there is one relatively new problem that should be considered: e-books. Consumers want to be able to use their e-books over the years as technology changes. They want to use the e-books they buy today for their Kindle or their Sony E-Reader on the next generation of e-readers. Many ebooks are not only in today's format, but they are also locked by DRM to their current e-reader units. This is usually not advertised when the e-books are sold, so many consumers will be in for a surprise when they try to replace their e-readers in a few years.

The new copyright bill could potentially make it illegal to break those digital locks in the future when it's time to transfer those books onto future devices. The new bill is said to be based on bill C-61, which made the ability to format-shift your own content (froim an old format to a new format) illegal if the content had DRM on it, like most ebooks sold today do.

For many books, and especially academic ones, the price for the ebook is the same (sometimes hundreds of dollars) as it was for the print edition. Canadians shouldn't live in a world of expiring and disappearing books. Consumers should have the right to use books the way they're used to doing - i.e. to buy them and have them for life, and to use them for years to come on future generations of devices.

Fair Use contributes to US economy

2010-05-04T09:41:00.003-05:00

Wired reports on a new study that sees fair use as contributing "$4.7 trillion in revenue and $2.2 trillion in value added" to the US economy, "roughly one-sixth the total gross domestic product of the United States."

Concordia goes open access

2010-05-04T09:36:00.004-05:00

Congratulations to Concordia University for adopting a policy that will "encourage all of its faculty and students to make their peer-reviewed research and creative output freely accessible via the internet." This shows Concordia's laudable desire to "make publicly-funded research available to all rather than just the minority able to afford the rapidly rising subscription costs of scholarly databases, books and journals."

CanCon Online

2010-03-31T07:18:00.005-05:00

The Globe and Mail today has an interesting piece on the House of Commons Committee on Canadian Heritage's current study on new media. Google, in response to the study's launch, has let it be known that it sees no role for online Canadian content rules.
Canadian content regulation could apply online in a few ways:

Internet radio and television: whereas the CRTC does not currently regulate online radio and television, they could: at a minimum, they could require traditional Canadian broadcasters to reflect their content quotas in their live online feeds; at a maximum they could require a broader swath of online broadcasters to respect some quota for online video and radio.
Online store displays: many online stores have a front portal that allows much less space for display than does a traditional store; the front page of an e-book store, or the front page of an online music store, allows for the display of a relatively small number of books. These have a huge marketing advantage. Some may or may not have pre-programmed searches or search capabilities that show or help the user to find or prioritize Canadian content.
Canadian commercial initiatives: regulation could encourage commercial initiatives online that showcase Canadian content through, for example, grants, training and networking, or tax incentives.
Search displays: Google, for example, does not seem to have a category of Canadian books in its Google book search. Google's search engine also makes it very difficult to find specific Canadian content, such as Parliamentary records, that it does occasionally have in its database. The government could spur such features along thorough encouraging partnerships, for example, that would see Canadian organizations work with Google to make such features available.
Canadian digitization initiatives: Regulation could very much encourage the digitization of vast amounts of Canadian materials, including the Parliamentary records, archival records, music, and more. The IMSLP is a Canadian initiative to make public domain music scores available online. The project has a competitive advantage over sites hosted elsewhere; it can make more public domain music available because Canada has held fast to its relatively shorter term of copyright protection of life + 50 years. This is an excellent example of how Canadian law can improve online access through regulation - not only to Canadian content, but to all kinds of content.

I think the Heritage Committee should start with 5 (quite important) and work its way down to 1 (not so important?) when it considers ways to encourage Canadian content online.

ACTA won't replace WIPO

2010-03-29T21:26:00.002-05:00

Michael Geist has a very interesting post about the possibility of ACTA replacing WIPO, replicating certain WIPO functions, and slowing or undermining the WIPO Development Agenda. Although ACTA could certainly become the centre of action in IP treaty-making and may take on some functions that are similar to what WIPO now does, I don't believe it will replace WIPO or undermine the Development Agenda. Here's why:

WIPO has historically been faced on various occasions with outside IP treaty-making organizations. In 1952 it faced the competing Universal Copyright Convention, and in the 1990s it faced the World Trade Organization's TRIPs Agreement. In both cases, it came to arrangements with the external organizations that secured its own role and made the treaty-making processes compatible between the two organizations. Although WIPO's ability to conclude treaties may be somewhat weakened by these outsiders, WIPO remains a strong and growing international organization whose expertise and capacity to work on IP issues is unrivaled by any other.
It seems as though the ACTA secretariat, as proposed, would be institutionally very small compared to WIPO.
The possibility remains that the ACTA secretariat will actually be housed at WIPO.
The Development Agenda is not working at cross-purposes with ACTA. The Development Agenda has morphed into a set of thematic projects that pose very little threat to the interests of developed countries. Some are, indeed, just what developed countries have been asking for. Projects will provide all kinds of resources to IP offices and infrastructure in developing and least developed countries, will put in place seminars and training programs - even regional IP academies, and create opportunities for IP organizations worldwide to partner with IP organizations in developing countries. It's not inconceivable that the Development Agenda projects could be used to eventually help bring developing countries on board with ACTA.

Canadian implementation of copyright treaties

2010-02-27T11:48:00.004-05:00

I posted recently on the possibility that ACTA could prolong the process of Canadian copyright reform, and about the average period of time, historically, that it has taken to reform Canadian copyright law. If we look at specific examples of efforts, on the part of Canada, to implement international copyright treaties, there are a few examples:

The Berne Convention, first implementation: 38 years
Canada was signed on to the original Berne Convention, which is still the cornerstone international copyright treaty today, by the British in 1886. However, it took Canada 38 years to implement the Berne Convention. After being brought on board by the British Imperial government, Canada decided the Berne Convention didn't fit in the North American context. It was viewed as a European treaty; the Americans weren't part of it. It therefore wasn't until 1924 that Canada finally implemented what by then was the 1908 revision of the Berne Convention.

The 1928 revision of the Berne Convention: 3 years.
Canada implemented the 1928 revision of the Berne Convention in short order, in 1931, granting moral rights and broadcast rights in copyright works.

The 1952 Universal Copyright Convention: 10 years.
Canada took 10 years to ratify the Universal Copyright Convention, which it did in 1962. It took 10 years because Canada couldn't decide whether or how to change Canadian law in order to implement the convention. After waffling about for 10 years on a possible copyright overhaul, Canada decided that no change to the actual law was necessary in order to meet the standards of the UCC, so that made the process, in the end, relatively quick.

The 1971 Revision of the Berne Convention: 22 years.
Canada implemented the 1971 (current) revision of the Berne Convention (which it had not originally signed) in 1993 in order to comply with NAFTA. Canada then formally acceded to the convention in 1998.

On average, that's 18 years. Implementation takes place more quickly if either no reform to domestic law is required or if the changes required are relatively uncontroversial. If however, the changes required are controversial, or if a significant overhaul of the copyright act is contemplated - as in the current case of contemplated copyright reform - implementation in Canada can take much longer.

Average length of copyright reform

2010-02-26T15:10:00.003-05:00

I noted recently that ACTA could actually slow down copyright reform in Canada. That made me wonder, how long does copyright reform in Canada take, on average?

Reform 1: 36 years . Canada's first copyright act was put in place in 1868, just after Confederation. Attempted overhauls began with bills introduced in 1888 and 1889, but these failed or were blocked by the British. Only minor revisions were made until a completely new act came into effect in 1924.

Reform 2: 34 years. Canada began to contemplate copyright reform again in 1954, when it created a Royal Commission to investigate copyright and other forms of intellectual property. This was followed by a major study by the Economic Council of Canada that came out in 1971. All of this studying didn't amount to a major copyright reform until another round of consultations that culminated in the reform of 1988.

Reform 3: 9 years. The next phase of Canadian copyright reform took place in record time, and was done in 1997.

On average, that's 26 years.

Reform 4: 13 years and counting. If history is any guide, Canadians should be expecting a new copyright act somewhere around 2023.

ACTA & Copyright Reform

2010-02-26T09:52:00.006-05:00

While Canadian delegations work with other countries to negotiate ACTA, Canadians await the next round of attempted copyright reform. The last two copyright bills, C-60 and C-61 died with changes of government. While parts of the first Liberal bill was seen to some extent to be acceptable, elements of the Conservative C-61 bill were fiercely opposed.

From recent reports it seems as though ACTA would block Canada into a corner on certain aspects of copyright reform, undermining the Canadian notice-and-notice regime for ISP liability and Canadian proposals for DRM circumvention laws, for example.

What will be the effect of ACTA on Canadian copyright reform?

The effect of ACTA on Canadian copyright reform depends on how the negotiations go. The goal of the Canadian delegation negotiating ACTA will likely be to preserve policy space for Canadian copyright lawmaking, and to negotiate an ACTA that will enable a Canadian copyright bill that is acceptable to Canadians and passable in Canadian Parliament. If the delegation succeeds, and a flexible ACTA that Canadians are comfortable with is the outcome, then we have little to worry about. This, for the moment, seems unlikely.

If the delegation does not succeed, and the ACTA that is finally agreed by negotiating parties contains elements that seem unsavory from the Canadian perspective or that would cut off policy options that the Canadian government wants to preserve, then Canada has the option to refrain from signing the treaty. This has happened in the past. When the 1967 revision of the Berne Convention was signed, Canada was in the middle of a copyright policy overhaul. Because of this, after participating in the negotiations, Canada did not sign the revision, which never came into effect anyway. Similarly, Canada negotiated actively but did not sign the 1971 revision of the Berne Convention - which remains the current revision of the treaty - , and avoided acceding to that revision of the convention until 1998. Canada also negotiated actively but did not sign the 1971 revision of the Universal Copyright Convention. Again, this was due to the desire, on the part of the Canadian government, to allow Canadian policy options to remain open for the domestic decision-making process to take place.

If Canada signs an ACTA that contains controversial elements from the Canadian perspective, things could go one of two ways. Policymakers and interest groups may accept that the field of policy options has narrowed, that Canada has committed to certain policies, the debate around copyright reform may be encompassed within new terms, and several options that were once controversial will have been pre-decided via the international process. Effectively, domestic policy-making procedures will have been circumvented, and any new Canadian copyright act will fall within the parameters set by ACTA, perhaps passing more easily because some of the controversial elements have been taken out of the debate.

Alternately, copyright reform could become even more difficult. Those groups who are in favour of the policy options contained within ACTA will have a stronger argument as to why Canada should include those elements in any new act, while opponents will criticize the government for having short-circuited the domestic process. They will argue that Canada should not implement ACTA. At the same time, the Canadian government will be under more pressure from other parties to the ACTA to implement. This situation could lead to an even longer period of indecision and difficulty in Canadian copyright reform.

update: see Blayne Haggart's post on this same topic
update 2: see Blayne Haggart's post on how ACTA could slow copyright reform in Mexico

E-books: A Checklist for Readers

2010-02-25T17:35:00.003-05:00

The EFF has published an excellent checklist of questions to ask if you are considering buying an e-book or e-reader. It seems to me that many of the answers to these questions are, for the moment, somewhat depressing. This makes it all the more important that such questions should be asked.

Canada: Stronger in 22 Ways

2010-02-24T19:35:00.006-05:00

Copyright lawyer Howard Knopf spoke to Search Engine about 21 ways (+1) that Canadian copyright law is stronger and more restrictive than American law. Canada suffers much abuse from the US - especially where American-dominated IP lobby groups are running the show, as they so often are - and even, unfortunately, in respectable Canadian publications like the Globe and Mail. Canada's representatives and Canadian commentators would do well to memorize these 22 points, rather than be caught speechless the next time Americans choose the term 'backwater' to refer to their closest trading partner.
Listen to Knopf here.

Google Book Settlement and Canada

2010-02-18T17:31:00.005-05:00

Howard Knopf has made some comments on the Google Book Settlement and has made note of several questions that Canadians should be asking. He points out that "most of the bells and whistles of the Google Books database will presumably not be available in Canada with respect to most of the database." Although Canadian copyright owners are included in the settlement class, and thus copyright owners could benefit from the proceeds of the settlement, none of the proposed benefits to users, such as institutional access to the database in Canadian libraries, free terminals to access the database in public libraries, or individual subscriptions, will be available to Canadians. Google will confine the services proposed under the settlement to the United States, where American copyright law applies. Canadians will be left viewing snippets of what American users can access fully.
For those interested in reading more, see Jonathan Band's article; especially page 264 on the service provision outside the United States.

E is for expensive

2010-02-14T09:27:00.004-05:00

An article in the New York Times on Thursday notes that the prices of ebooks are slated to go up. Customers are outraged. One customer is quoted as saying "$14.82 for the Kindle version is unbelievable." Try $315:

Copyright and Creative Freedom by Mira T. Sundara Rajan (Routledge): priced at $156 on WHSmith and $90 in the Amazon and Sony stores
International Copyright: Principles, Law, and Practice by Paul Goldstein (OUP): $165 on ebooks.com
An Emerging Intellectual Property Paradigm: Perspectives from Canada edited by Ysolde Gendreau (Edward Elgar): $145 on ebooks.com
Globalising Intellectual Property Rights by Duncan Matthews: $160 from Taylor & Francis
Research Handbook on the Future of EU Copyright by Estelle Derclaye (Edward Elgar) : $315 on ebooks.com

And those are DRM versions that may or may not be usable on your next device.

What ACTA means for Canada: Fewer

2010-02-10T20:17:00.002-05:00

David Fewer writes a guest post for the Electronic Frontier Foundation on "What ACTA means for Canadians." According to him, there are concerns "with ACTA’s potential to undermine Canadian sovereignty over domestic intellectual property policy and the Canadian values they express."

He notes that ACTA is a threat to Canadian policy solutions that include the Canadian notice-and-notice regime for ISP liability and Canadian proposals for DRM circumvention laws. He concludes,

Both ACTA and the Canada-EU trade discussions threaten to displace domestic control over IP policy. While it might be said that it is better for Canadian negotiators to be at the table influencing developments than left on the outside looking in (like the rest of us), it might be better for Canada to walk away from the entire process. Participation merely threatens to lend the process a legitimacy that, from Canadian eyes, it currently lacks.

E is for evil

2010-02-08T11:10:00.001-05:00

E-books aren't evil necessarily. They can be a convenient way to read, and digital books will make an enormous wealth of literature and knowledge available. But there are some important downsides. Here's a summary.

There are a number of great benefits to e-books, especially from an academic perspective:

Access. E-books provide easy and instant access to huge numbers of books - especially books in the public domain. Whereas in the past you had to hunt for these, or, in more recent years, read them online, now they are portable on e-readers, which make them convenient and easy to read and carry around.
Markability. Some e-readers give you the ability to write in the book without feeling guilty. This ability is really important for concentration, comprehension, and memory.
Read-aloud. Some e-readers will read a book aloud. This is great if you prefer to listen to your books, and especially for the visually or reading-impaired.
Storage. For travelers especially, e-readers allow you to carry around a whole bunch of books, easily. They free up shelf space. This is most important for libraries; e-books will allow libraries to offer many more books to their clients without straining storage space.
Library books. Many public libraries now offer e-books that you can download online. They are easy to sign out without visiting the library, and easy to return: they just become disabled after the loan period ends.
Competition. E-books offer some competition to regular books, which hopefully will have a positive effect on prices. There seems to be relatively healthy competition between online stores selling e-books, with the exception of cases of vertical tying, as I'll discuss further below.
Newspapers and magazines. Many newspapers and magazines are available for the Kindle, while some - though fewer - are available at the Sony e-book store. E-subscriptions could create a new and much-needed revenue stream for newspapers and magazines - and, it's a very convenient way to receive them.
Royalties. E-book vendors such as Amazon give a far greater percentage of royalties to publishers and authors than what authors recieve on print sales; Amazon just announced that it will offer, on certain conditions, almost 70% of the e-book sale price in royalties to its authors and publishers.
Circumventing censorship. E-books can be made available even where print versions are banned. See this post by James Turner.

However, there are also a number of downsides:

Online E-books. Although many public libraries now offer e-books online, academic libraries seem to be slower to get on board. Unfortunately, many academic libraries have adopted only a type of e-books that can't be downloaded, but that can only be read using a browser in a special web portal. These, I have found, are almost useless in an academic setting: they can't be underlined, note-taking features are extremely limited, and printing is limited to a very few pages a day - so the articles can't be brought to class. HotBook agrees that this type of e-book is a disaster. So have my students.
DRM. Digital Rights Management can be a huge pain for purchasers of e-books, without, it seems, being effective in preventing copyright infringement. DRM seems more effective as an anti-competitive practice than as a mechanism to prevent unauthorized copying; plenty of books are available through unauthorized sources online. Nevertheless, DRM puts up all kinds of barriers to access and convenience. With many DRM-protected e-books, you can't loan your book to a friend. Your e-book becomes tethered to your device - and possibly only certain devices so that, although you may have the capability of reading e-books on both your e-reader and your phone, the book you bought may be restricted to your e-reader device, unplayable on your phone. When you switch to a new device in a few years, you may not be able to take your books with you. Also, as happened to me recently, DRM can be glitchy. Some of my DRM e-books recently became disabled due to a bug in the library-book lending system. Cases like this are very frustrating. These factors could turn many off of e-books.
Open Source Software. Many e-books are non-DRM and can be managed using open-source software. Not only is this software free -- it can also be continuously improved by the Open Source Software community. However, DRM e-books cannot be legally used in Open Source Software, meaning that you can end up stuck using whatever software your vendor happens to provide.
Vertical tying. Many books are sold that only work on particular devices, preventing owners of Sony e-readers from reading e-books bought at Amazon, and preventing anyone without a Sony e-reader from buying from the Sony e-book store, for example. Here, DRM is used to force customers to buy particular devices and to reduce competition between e-book vendors.
Disappearing e-books. Although it's great to be able to access e-books for free with ease from the library, the prospect of disappearing books seems to run counter to the technological possibilities and potential of the technology.
Copyright term. The technological expansion of access to books coincides with the extension of copyright terms (the length of time that copyright applies), countering that expansion by blocking off access to books or making them only commercially available.
Software limitations. The e-readers and software available now seem very rudimentary: note-taking functions are extremely limited; cut-and-paste functions are often disabled or laden down with copyright notices; and a lot of the software is simple, clunky and buggy.
Format. E-books look OK, but they're not exactly beautiful. E-readers don't display colour at this point, and formatting can be a little wonky. Some e-books and documents can be hard to read, even for those with good vision. Limited formatting capabilities may limit the usefulness of e-readers for reading magazines and newspapers. The Apple iTablet offers itself as one exception.
Accessibility. Universities have been working with companies to ensure that e-readers are accessible to those who are visually impaired. Although the read-aloud function available on some e-readers is a great step forward, it has been impossible for those who are visually impaired to properly navigate the menus and software functions of the device. Hopefully this will improve soon.
Price of books. Many ebooks are very expensive - especially academic books. Taylor & Francis offers many of its books at the ridiculous price of $100-$200. When standards and technology are still in flux, and people change gadgets every two years or so, e-books that you purchase now may only be good for a year or two, either because they are tethered by DRM to your old device, or because standards have changed. Most people can't afford to spend that kind of money on a book that could expire or become incompatible in a year or two. It is especially ironic that academic books should be so expensive, when most academics neither need nor expect to make any significant money through publishing.
Price of technology. E-readers are expensive. To large groups of people around the world, they are unaffordable. Mobile phones equipped with e-reading software are one less expensive option. See this post by James Turner.
Jobs. E-books could change the employment landscape of the newspaper industry and the publishing industry as a whole - affecting especially those implicated in production and delivery. However, in the case of newspapers, this shift may have already taken place as a result of the online availability of news. In the case of libraries , if the provision of e-books is outsourced, as it now appears to be, library staffing - in cataloging and circulation especially, could change. This is to say nothing of the impact on brick-and-mortar bookstores. The current feeling seems to be that e-books will not replace regular books. Nevertheless, there will very likely be an impact.
Environment. Although e-books save paper, the e-reader is yet another consumer electronic device that will be disposed of, create energy costs, and damage the environment.
Troubleshooting. Who knew that you'd ever have to call IT to troubleshoot a book?

Let me know what I've missed...

World Fair Use Day-International aspects

2010-01-13T11:07:00.006-05:00

Events were held in Washington DC this week to celebrate World Fair Use Day. Canadian filmmaker Brett Gaylor noted that the name of the day is a bit of a misnomer, since only the US and Israel have "fair use" provisions in their law; the Canadian counterpart, and the principle in many countries around the world, is called 'fair dealing'. Michael Geist makes an important note on this today. Many of the discussions at the Washington events were focused on fair use in the US, but international aspects arose on a few occasions.

Panelists at a discussion on ACTA Monday night noted the importance of exporting not only protections for copyright holders, but also the exceptions and limitations to copyright that ensure copyright law encourages innovation, that it is balanced, that it reflects how people want and need to use works, and that it is respected. They expressed concern that ACTA, if it focuses only on ratcheting up the rights of copyright holders without focusing also on exceptions and limitations, might set a narrow path going forward that would be detrimental to not only balance in copyright around the world, but also to the current and future flexibility of American law. See Rebecca Tushnet's' blog for more of the discussion.

At a lunchtime discussion with Peter Jaszi and Anthony Falzone, I asked the question: should fair use be internationalized, and if so how? The discussion was blogged here ("Sarah Bannerman from GWU"). The panelists gave a thoughtful response, expressing caution about exporting a US-based approach and fears that the harmonization process might actually impose limits on the flexibilities and limitations that countries can include in their law. However, they also noted, as did the panelists Monday night, the importance of including balance and room for limitations and exceptions in any harmonization process.

World Fair Use Day

2009-12-14T17:17:00.001-05:00

Public Knowledge invites people around the world to organize events on January 12 2010 to celebrate World Fair Use Day. [more]

Dear All,
On January 12, 2010, Public Knowledge, based in Washington D.C., US, will
host the World’s Fair Use day – an event that will bring together artists,
innovators, and policy advocates to celebrate fair use. I am writing to
request your help in spreading the word about the event. Also, it would be
great if you could organize your own events celebrating the many benefits of
fair use or similar copyright limitations and exceptions. The idea is to
have co-ordinated events in different parts of the world all organized under
the same theme. The events don't have to be on the same day. If you let us
know about your event, we will help spread the word about it. To give you a
better idea about our event, here’s a link to the event website: wfud.info

In a few days, we will put together a party packet providing ideas about the
types of events you can organize. Of course these are just suggestions and
anything you do to celebrate fair use would be great.

We would also be delighted if any of you can attend our event.

If you are interested in pursuing this further, please contact my colleague,
Mehan Jayasuriya, who is organizing our event at mehan@publicknowledge.org.
Please don’t hesitate to contact Mehan or me if you have any further
questions.

Thank you.
Rashmi Rangnath
Director, Global Knowledge Initiative
Public

Mexican copyright developments

2009-11-20T14:03:00.004-05:00

Blayne Haggart, Canadian scholar in Mexico, has a new post on hot-off-the-press developments in Mexican copyright. Mexico has the longest copyright term in the world: life + 100 and could, if developments continue, be a world-leader in other strong copyright measures as well. Haggart reports that a new copyright coalition has formed in Mexico that will work to increase copyright measures, recognition, and enforcement. Haggart points to low levels of internet penetration in Mexico as one reason why user rights movements haven't taken off in the country. As Haggart says, regarding the low levels of Internet penetration, "this won’t always be the case; as more Mexicans go online, they are likely to become more aware of how they are affected by copyright law."

ACTA: walk away or get on board?

2009-11-17T17:06:00.005-05:00

On November 5th Michael Geist spoke at the American University in Washington about the ACTA. His presentation was part of a panel called "Strengthening IP Enforcement Through TRIPS and Other Multilateral Initiatives", with Daniel Gervais and Peter Yu and moderated by Padideh Ala'i (Webcast here).

Geist predicted that by 2010 ACTA will be fully drafted, that by 2011 it will be publicly disclosed, and that by 2012 efforts will have begun to expand the circle of countries to which ACTA applies. Countries excluded from ACTA will be presented with a fait accompli. They will have had no influence on the ACTA text. Nevertheless, they will eventually be asked to sign the document. Geist argues that, therefore, excluded countries should be banging down the door of ACTA, saying they want input now.

The question I raised at the discussion was whether, if more countries get on board with ACTA, it will not simply lend more legitimacy to the process taking place, and increase pressure on participants eventually to implement the agreement. In response, Geist argued that, on balance, the risks of not getting involved are too big.

In my historical research on Canadian international copyright I have seen the argument made on numerous occasions that Canada should participate in this or that international negotiation in order to be able to have some influence. This argument is made even in negotiations that are heading generally away from the direction in which Canada wants to go. It also seems to me that the influence ascertained through this method has been, on the whole, negligible. Also, once a country participates in and signs an agreement, the argument is then made (as with the WIPO Internet treaties) that the country therefore has some obligation to implement the agreement.

Nevertheless, Geist may be right.

Non-participation: considerations

With fewer participants, the ACTA could come to be seen as a regional or rich-country norm, rather than an agreement that all countries would eventually sign. However, there are not many examples of IP treaties that are seen as regional today; most are successfully globalized. At the same time, the WIPO Internet treaties are still adopted only by about 70 countries, less than half the membership of the Berne Convention; global adoption of any new treaty is not guaranteed.
If countries do not participate in ACTA's negotiation, they can later argue that they don't wish to implement an agreement that they had no say in. It seems likely that trade pressure would overcome this objection.
Countries that do not participate now could demand revision of the treaty at a later time as a condition of their joining. Canada successfully demanded revision of (via a protocol to) the Berne Convention in 1914 as a condition of its implementation of Berne, and the US was highly influential in revisions of Berne as an outsider, when members tried to accommodate US demands in an effort to (unsuccessfully until 1989) draw the US in.
Howard Knopf argues that Canada should be prepared to walk away from the treaty, and that if Canada continues to participate "the minimum price for so doing should be complete transparency and immediate publication of all draft texts, as has been the normal practice at the GATT, WTO, WIPO and elsewhere for decades."

Participation: considerations

The participation of Canada or other countries could have a beneficial impact on the treaty; for example, room for Canada's proposal of a notice-and-notice system could be brought into the treaty.
Like-minded countries could group together to have some influence on the treaty, mitigating its most unpalatable aspects

Not signing: considerations

Blayne Haggart, in a recent blog post about ACTA, points out that the French government killed the MAI by walking away from it. That doesn't mean that would happen here, he notes; a smaller group of countries could carry ACTA forward even if some parties walk away.
Countries could participate in the negotiation of ACTA but, in the end, refuse to sign the document. This would allow the country to have some influence throughout the negotiations and, if the ACTA remains unsatisfactory, to make a statement in this regard while also making it clear that, in the end, the country did not intend to implement the agreement. This was the strategy taken by the United States throughout the history of its refusal to sign the Berne Convention.

CIRA survey on Internet concerns

2009-10-26T17:58:00.000-05:00

The Canadian Internet Registration Authority, working with the International Institute for Sustainable Development, has posted a survey that will help it determine the Internet-related policy concerns of Canadians. Among other questions (Access to the Internet: How concerned are you about access to speedy, affordable, quality broadband across Canada?; Privacy: Are you concerned about control over online access to personal information?), the survey asks "Intellectual Property Rights (IPRs) in online content: Are you concerned about how IPRs are protected for content accessible online?" I found it odd that a leading organization in Internet policy would list intellectual property as a potential area of concern without also listing open access to online content as a possible priority area. Luckily, there is room in the survey to add concerns that were missed.
Reading the survey, it sounds like CIRA is interested in possibly starting a public forum on Internet policy - one that would hopefully involve a broad range of stakeholders, inquire on important issues in Canadian Internet policy, and engage with forums around the world.
You can take the survey here to submit your two cents on the future shape of a Canadian Internet policy forum.

FT: India PM calls for Access-to-Green-Technology

2009-10-26T16:58:00.005-05:00

India's Prime Minister, Manmohan Singh, is calling for an Access to Green Technology regime, similar to the Access to Medicine Regime, that would create rules requiring the sharing of intellectual property in green technologies with poorer countries. The Financial Times reports.

Hemmungs Wirtén to speak in Wisconsin

2009-10-21T12:30:00.003-05:00

Eva Hemmungs Wirtén gives a talk Oct 29 at the University of Wisconsin-Madison. Her book, Terms of Use: Negotiating the Jungle of the Intellectual Commons, is a fascinating history of the public domain. In it she argues that the history of the public domain is connected to the history of imperialism - that there is an "unbroken liaison between imperialism and the public domain". (141-142) She argues that the concept of a 'commons' allowed the enclosure of land in the name of colonial expansion, improvement, and development. (23-25) While in general agreement with those who value the public domain, Hemmungs Wirtén takes a critical - and very creative - look at its history.

G&M on Woodrow Wilson event

2009-10-20T14:28:00.002-05:00

Barrie McKenna reports in the Globe and Mail on the copyright event at the Woodrow Wilson Center for Scholarship that I posted about last week. His story reflects closely the slant of the presenters.

CRTC Net Neutrality report

2009-10-19T18:06:00.003-05:00

The CRTC has announced that it plans to release its policy statement on Net Neutrality this week.

The Great Un-Debate

2009-10-14T10:29:00.015-05:00

I have just returned from what Howard Knopf, it turns out fittingly, describes as "The Great Copyright Un-Debate" at the Woodrow Wilson Center for Scholars here in Washington DC.

The Woodrow Wilson Center plays host to a great many interesting events on difficult issues, from the Israel-Palestinian conflict, to Sino-Russian relations, to Arab-Isralei peacemaking, to Soviet-Taiwanese questions. I am certain that many of those events present a fairer view of the issues at hand than the presentation today on Canada-US copyright issues. Today's presentation by Barry Sookman and Eric Schwartz came across as an unfortunate use of the forum generously provided by the Woodrow Wilson Center to pressure Canadian policymakers into a set of copyright reforms that has long been advocated by American industry groups. The gist of the presentation was to portray Canada in an entirely bad light in a seeming effort to embarrass Canada into such reforms as have long been advocated by American industry and the American government. The presentation was not as scholarly as it was heavy-handed, and might as well have been a presentation by two lobbyists for the American copyright industries. This is unsurprising, especially coming from Schwartz, who is the counsel for the International Intellectual Property Alliance, a group representing those industries.

The view of Canada presented today was one-sidedly negative, with little effort made to inquire into or engage with the problems that make Canadian copyright reform difficult, or the contributions of Canada in the field of copyright. It was presented as incomprehensible as to why Canada had not already put in place a Canadian DMCA. There was no mention of the problems arising out of the American copyright reforms of 1997, which inspired not only a number of needed adjustments, but also set off several international movements whose purpose is, in part, to ensure that the same problems - or worse - do not arise in other countries. The volumes of scholarship by very intelligent and eminent thinkers on both sides of the border, and around the world, related to recent copyright reform efforts were simply pooh-poohed as the work of "copyright antagonists". Rather, a long set of statistics about the number of BitTorrent sites hosted in Canada (Canada hosts several) and the use of those sites by Canadians (though it was admitted that Americans make up a larger portion of the sites' users) served as a large part of the presentation.

When asked, the presenters were at a loss to come up with anything positive they could say about Canada, Canadian copyright, or Canadian copyright policymaking. I have found Sookman's work elsewhere to be helpful and insightful, even if I don't agree with everything he has said; indeed, I have assigned some of it to my students to read. If I had thought of using a webcast of today's presentation in my classes I would think again; those interested in gaining insight into the issues of Canada-US copyright policy will need to do additional reading.

Copyright events in Washington DC

2009-10-13T14:02:00.003-05:00

A number of interesting events are coming up in Washington DC with links to Canada:

Tomorrow, the Woodrow Wilson Centre presents "Internet Piracy: Copyright Law in Canada and the United States", previously presented in Ottawa on Sept 25. Howard Knopf has referred to this as "the great un-debate".
On Nov. 5, The Washington College of Law presents "Beyond TRIPS: The Current Push for Greater International Enforcement of Intellectual Property" with Canadians Michael Geist and Daniel Gervais presenting.

Moved to GWU

2009-10-13T13:49:00.002-05:00

Last month I relocated to Washington DC, where I am now a Fulbright postdoctoral researcher and Visiting Scholar at the Eliott School of International Affairs, George Washington University. I note that there is a frost warning in effect in Ottawa. Here, it is 22 degrees. I am sure this bodes well, if not Canadian copyright scholarship generally, then for certain Canadian scholars working in the US.

The Ins and Outs of the Public Domain

2009-10-10T19:52:00.000-05:00

My review, The Ins and Outs of the Public Domain, was published in the Canadian edition of the Global Media Journal. It reviews four books: Terms of Use: Negotiating the Jungle of the Intellectual Commons, The Public Domain: Enclosing the Commons of the Mind, The Global Idea of “the Commons”, and The Future of the Public Domain: Identifying the Commons in Information Law.

New book: Implementing the WIPO Development Agenda

2009-06-16T08:28:00.004-05:00

A new book, Implementing the World Intellectual Property Organization's Development Agenda, edited by Jeremy de Beer, has come out. My chapter, which discusses both the optimism and pessimism that surround the development agenda, is available online. For those looking for an introduction to the development agenda and what it is all about, Jeremy de Beer's introduction takes a multi-faceted and insightful look at the agenda.
The book will be launched in Geneva on July 10 as a part of iQsensato's Geneva Seminars on Development.

1897 and 1888: Pirates and Pressure

2009-04-28T09:52:00.009-05:00

BoingBoing and Michael Geist point to a New York Times article from 1897 about Canadian "pirates" selling sheet music across the border to Americans at a cheaper price than what American music publishers were charging.

By 1897 the Americans had finally come to recognize the copyrights of foreign authors from some countries. But in 1897 this policy was only a few years old. Until 1891 the US did not recognize international copyright. Up to that year, American publishers did an excellent trade selling "pirated" editions of British books across the border to Canadians.

A lot has changed since then. In the nineteenth century, the Americans were the pirates and the Canadians - well, we had our pirates too, but we operated under international copyright as a British dominion much earlier: from 1886 under Britain's International Copyright Act and even earlier under the 1842 Imperial Copyright Act and various bilateral treaties that applied throughout the British Empire. In fact (see inset), in 1888 the idea was floated that the Canadians might try to pressure the Americans to recognize international copyright as a part of an agreement on the Alaskan border dispute. That didn't get far.

The Globe, Feb 15 1888

Domain name dilemmas

2009-03-15T18:44:00.005-05:00

ICANN is planning to start allowing new domain names. Beyond dot.com, dot.ca, dot.xxx, or dot.sex, under the new plan there could be effectively dot.anything. Unlimited possibilities could mean unlimited registrations for existing trademark owners. Our politicians may now have to keep track of even more than the usual range of dot.com and dot.ca names; there could now be rodgercuzner.ca, rodger.cuzner, rodgercuzner.ottawa, rodgercuzner.canada, or rodgercuzner.dating and any range of possible registrations to lose track of.

ICANN is currently consulting with intellectual property experts on policies that might protect at least the trademark holders from this difficulty. Some groups are concerned that the interests of trademark holders are being considered above those of other interests, such as those of the Non-Commercial Users Constituency (NCUC).

WIPO's recent comments on the ICANN issue are here. As well, according to IP-Watch, WIPO's report on domain name disputes is due next week. The disputes may soon multiply.

Sirus on Internet radio

2009-03-02T07:22:00.006-05:00

According to Ira Wagman's reports on the CRTC hearings into Internet regulation, Sirius satellite radio has gone before the CRTC to argue that Internet radio is “a category killer...and the category it will kill is satellite radio.” (see transcript at 7717) Sirius suggests a couple of solutions:

requiring internet audio providers to geo-block programming that doesn't meet CanCon requirements.
regulating wireless providers and Internet broadcasters like other conventional broadcasters and require Internet broadcasters, like regular broadcasters, to pay a levy towards the production of Canadian content

Interestingly, the Slaight family owns both 40% of Sirius Canada and also Iceberg, the Canadian online Internet station.

Here is the excerpt from the CRTC transcripts:

7743 Presumably one way of operationalizing this approach would be to require ISPs, including wireless providers, to geo-block audio content that does not comply with CRTC-imposed Canadian content requirements. Only those programming undertakings that met such requirements would be permitted to broadcast their audio content to Canadians.

7744 That approach, if taken by the Commission, would of course thrill us completely. We would throw actually throw a party for you.

--- Laughter

7745 MS KERR: Nothing else would level the playing field for us from a regulatory perspective as would geo-blocking of non-compliant audio programming undertakings.

7746 However, we recognize that this approach flies in the face of the principles of openness and freedom of choice that governs the internet and actually hasn't been suggested by anybody else here. Perhaps pushing water uphill best describes our proposed option. I imagine of the Commission's top 100 practicable alternatives it might be considering, this one might fall somewhere around 98.

7747 But the reason I bring it up is to give the Commission some insight into the threat we perceive to our business from unregulated internet radio that is currently not expected to contribute to the broadcast system and just how unlevel that playing field is for us.

7748 So if it is not practicable and it does not respect the principles that govern the internet to geo-block content, what can be done so that we have a broadcasting system in which new media participants contribute too, so that traditional broadcasters are not under real threat simply as the result of a heavier regulatory burden?

7749 All broadcasters are required to make direct financial contributions to support Canadian content development. Therefore, to address this specific issue, Sirius proposes a levy be placed on the revenues of all wireless carriers for their data traffic related revenues related to broadcasting and on all ISP revenues related to broadcasting. This levy should be proportionate to what traditional broadcasters contribute.

The CRTC & User-Generated Content

2009-02-20T14:01:00.007-05:00

In announcing the New Media hearings back in October, the CRTC placed upfront its position on user-generated content. It said, "the Commission is not concerned with user-generated broadcasting content. That is, the Commission does not seek to inquire into the content, quality
or availability of material created by individual Canadians in a personal capacity." It seems that the CRTC is not interested in regulating what people post on YouTube. While this is reassuring, the Commission's lack of concern with user-generated content also seems out of step with what the Internet is all about and what seem to be some of its most exciting opportunities.

YouTube at one point announced that it would pay for user-generated content. Google lets users generate revenue through its ad services. It seems that these types of models, that treat user-generated content as potentially valuable, attractive, and on par with other types of content, are the way of the future.

Ira Wagman proposes an idea:

What would happen if the CRTC brought down a levy on ISPs to a create a fund that any Canadian could access to produce works for new media -- not just those who do this for a living? Now that would be interesting, wouldn't it?

There may be fears that models that reward user-generated content may not work to sufficiently provide high quality content. Bruce Dinsmore of the online series Tetes a Claques argues:

While there is no question amateur videos can entertain and inform us, they alone cannot be relied upon to share the important stories that Canadians want to share and tell. For that we need high-quality, professionally produced content, including scripted drama," Dinsmore said. "If we want a wide array of content produced we need new sources of funding.

The CRTC's attitude towards user-generated content means, however, that Canadian voices - Canadian user-generated content - don't count as "Canadian content". If the CRTC creates a new media fund it will be geared towards whatever the CRTC considers to be professional content. If the CRTC decides to make 'shelf-space' for Canadian content, it won't be a space for the kind of online democracy we might think the Internet opens doors to; it will be 'shelf-space' for traditional Canadian broadcasts - similar to the kind we see on TV.

As Ira points out, this would involve an attempt by the CRTC or delegated body to try to define an increasingly blurry line between professional and user-generated content, and, in the case of a levy, to define how proceeds are distributed. Such schemes are never satisfactory and are always open to contestation. Take the example of the blank tape levy; at a time when the Conservatives have mused about stepping away from the long-contested levy approach (also here) to copyright regulation, is this the direction in which the CRTC wishes to move? (Of course, there is also the prospect of an ISP copyright levy..., which would mean two levies... or more) Is there any reason why funds for new media production could not continue to come out of general government funds rather than through a rather contestable model that treats ISPs as old media broadcasters? Why involve ISPs in content-production funding?

The levy issue raises interesting questions with regard to net neutrality. It produces the prospect that ISPs could be required to pay content producers through a levy while content producers, should net neutrality arguments fail, pay ISPs for priority carriage. Sounds like an incestuous nightmare to me.

The CRTC might find itself attempting to shore up a gap between user-generated content and professional content; stopping up the exciting potential that the Internet offers when it acts as a common carrier and places user-generated up-and-coming content in direct competition with professional content; and trying to sort out back-and-forth payments between content producers, collecting societies, and ISPs.

Obama and the development agenda

2009-02-03T21:57:00.002-05:00

With the next meeting of the Committee on Development and Intellectual Property at WIPO coming up in April, what will the new approach of the Obama administration be? US leadership has been influential on the progress of the development agenda; for some time the US was the key opponent of the agenda until, with certain key concessions from the Friends of Development in hand, they allowed the agenda to go forward in a less radical form.

The President of the World bank calls on the new administrtation to provide stimulus, given the current economic crisis, to developing countries. Sisule Musungu highlights some of the opportunities where the Obama administration could provide stimulus and leadership in the arena of global IP in the upcoming year.

Given the economic downturn, and if the new administration's choice of officials for leadership positions within the Justice Department are any indication, it may be that American international IP policies will change little. So far, as Howard Knopf notes, it's looking like stimulus will be focussed at home. Whereas some fear that scientific and technical assistance programs will be cut as a result of the economic downturn, Harvard University's Calestous Juma argues that the Obama administration will the thinking globally, and looking for ways to continue to support research and development around the world. Such initiatives are often linked to the usual calls for stronger IP protection which may in turn also, as Knopf notes, be linked to new trade policies and under-the-table tradeoffs.

The new administration might stimulate some fresh thinking by examining the opportunities highlighted by Musungu. These may highlight some new ways to "do good" in international IP policy.

Copyright Board Releases Tariff 22B-G

2008-10-24T15:27:00.007-05:00

The Copyright Board has just released the royalty rates to be owed for use of music online by commercial and non-commercial radio stations, the CBC, and audio websites. I posted on the opening remarks for this proceeding in April 2007. A few things to note:

At the 2007 hearing, SOCAN proposed a $60 annual fee for podcasters whose programming is less than 20% SOCAN music. The Copyright Board has done better, exempting amateur podcasters. They also set a minimum annual fee of $28 for what it calls 'audio websites' using less than 20% SOCAN music. The annual fee is increased to $79 if the content is between 20 and 80 per cent SOCAN music, and $100 if the combined use is 80 per cent or more SOCAN music.
SOCAN also proposed a $90 monthly fee for campus and community radio; the Copyright Board has determined that fees for the online use of music by non-commercial radio stations will be based, as with the traditional broadcast of music by these stations, on gross internet operating costs at a rate of 1.9%, adjusting for the number of hits the web site gets. (If 90% of hits on the site is for text-based content, the station would only have to pay 10% of the 1.9% rate.) However, many non-commercial radio stations won't be required to pay this fee as they have already paid the 1.9% on internet operating costs under the regular broadcasting tariff. (thanks John)
The CBC and the National Campus and Community Radio Association had argued that they should not have to pay an additional fee to simulcast existing radio programming on the grounds that they are using the same material to reach the same audience and should therefore not be charged twice; that they are simply transferring an existing practice onto a new medium; that they are simply following their audience onto a new technology, and that the tariff should be technologically neutral. Although this principle seems to have been generally adopted in the case of non-commercial broadcasters, the CBC will be charged an additional 10% of what they pay under the traditional broadcast tariff, adjusted down for the number of hits received on their podcasts. (If 90% of the hits to the CBC web site is for text rather than audio content, the CBC would pay only an additional 1% more.)

WIPO Development agenda implementation plan to be presented to WIPO General Assembly

2008-09-18T21:44:00.004-05:00

The WIPO General Assembly will be asked next week to adopt a work plan for implementing the 19 development agenda recommendations that have been identified for immediate implementation. The plan as currently outlined bears little of the spirit that inspired the Friends of Development and the original proposal of a development agenda at WIPO.

First, the plan to implement development agenda recommendation 1 on technical assistance: that recommendation read as follows:

WIPO technical assistance shall be, inter alia, development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States and activities should include time frames for completion. In this regard, design, delivery mechanisms and evaluation processes of technical assistance programs should be country specific

The plan outlined in the report seems to consist of two elements: first, to ensure everyone at WIPO is aware of the principles of this recommendation. This is a good thing. Second, the general plan seems to be to increase the bureaucracy of technical assistance: WIPO will "assist" countries in creating national IP plans along the following lines:

project design frameworks will be standardized for WIPO to ensure full project definition and description, quality control and approval processes, objective setting and monitoring activities, risk identification and management, performance and results definition and appraisal. Program evaluation will be undertaken in line with the recently approved WIPO Evaluation Policy.

Some of these things might help to identify true development-related goals. Or, they could just increase bureaucracy.

Also, WIPO will let private partners in to provide technical assistance, through a proposed "partnership database" that would match technical assistance "donors" with developing countries. On this, India made an important comment back in 2005, which has so far gone unheeded:

it was imperative to recognize that private sector partners would have a slight conflict of interest in the sort of advice that they provided: therefore, as the idea of the Delegation of the United States of America [the US originally suggested the partnership database in 2005] was developed further, the meeting could, perhaps, think of balancing or neutralizing the conflict of interest by having a civil society partner as part of a trilateral arrangement. (IIM/2/10 para 129)

Want to keep an eye on all these technical assistance activities? You'll be able to...as long as member states and/or involved partners approve the release of detailed information. Otherwise, you'll just have the general information available on the web site.

Further, a recommendation will be made that WIPO convene a donor conference to get the "bilateral and multilateral donor community (in particular, donor institutions)" involved in the implementation of WIPO's development agenda. This would be a big event soliciting even more private partners.

Remember recommendation 15, that WIPO should "take into consideration the interests and priorities of all WIPO Member States and the viewpoints of other stakeholders" (emphasis added)? Sounds like there is still one stakeholder group that WIPO is especially interested in promoting: in implementing recommendation 4, WIPO will "examine the contribution of the creative sector, as well as underscore its potential as an important constituent in support of policy making." (emphasis added) No mention of the contribution of other sectors. Further to this, WIPO has a plan unrelated to any recommendation contained in the development agenda:

WIPO’s institutional support will be extended not only to national IP offices, but also to other institutions that promote innovative and creative activities such as technology licensing offices in universities, technology promotion institutes, collective management societies and creative industries support institutions. [emphasis added]

Also, following recommendation 3 of the development agenda, there is a big plan to "Raise awareness among all sectors of the society regarding the important role that intellectual property plays in national development."

In summary, the implementation plan for the development agenda so far seems to be:

increase bureaucracy
set up private partners to "assist" developing countries
allow those private partners and member states "assisting" developing countries to operate in relative secrecy if they so desire
increase support to the creative/cultural industries and collective licensing agencies
generally highlight the wonders that IP does for development

Plans for supporting a robust public domain? Nothing. For further discussing access to knowledge? Not a mention. Promoting the understanding and use of existing IP flexibilities? "Flexibility" does not appear to be in WIPO's lexicon.

Upcoming WIPO meeting of member states

2008-09-18T21:33:00.003-05:00

The next meeting of the member states of WIPO will take place soon, from September 22 to 30. Major issues to watch include the appointment of the new Director General of WIPO and the report of the progress so far on implementing the WIPO development agenda.

The appointment of the new Director General is expected to take place on Sept 22. The WIPO Coordination Committee has nominated Francis Gurry of Australia to be the next Director General of WIPO, for a term of six years starting October 1 2008. Gurry has been Deputy Director General at WIPO since 2003 and has worked at WIPO since 1985. Although an insider, IP-Watch reported, upon Gurry's win of a close election in May, that he has "nevertheless crafted a reputation for relative independence from the existing administration". He has an honorary position at the University of Melbourne and sits on the advisory board of the Centre for Intellectual Property and Information Law at Cambridge.

The report of the Committee on Development and Intellectual Property (CDIP) is expected to be presented on Sept 23. The report, available online, asks the General Assembly to adopt a work program and to make available some human and financial resources to go along with it. At this point the work program focuses on the 19 development agenda items that were identified for immediate implementation. My summary of and comments on this plan are here.

Other reports will also be presented:

Report on the Work of the Advisory Committee on Enforcement (ACE), and the Enforcement of Intellectual Property Rights
Progress Report on the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
Report on the Work of the Standing Committee on Copyright and Related Rights (SCCR), Including the Protection of Audivisual Performances and Protection of the Rights of Broadcasting Organizations
Progress Report on the New Construction Project
A report on Matters Concerning Internet Domain Names
Summary Annual Report of the Director of the Internal Audit and Oversight Division
Reports of the Seventh, Eighth and Ninth Meetings of the WIPO Audit Committee
Report on the Work of the Standing Committee on the Law of Patents

US Presidential Candidates on IP Issues

2008-09-12T09:48:00.004-05:00

IP-Watch has a good article (subscriber only) on the US presidential candidates' positions on IP issues. Industry associations like the Business Software Alliance, the Consumer Electronics Association, and the International Trademark Association are hot on the campaign trail.

A quick summary of the candidates' positions on IP:

On copyright:

Obama wants greater enforcement and copyright reform. He thinks the Bush administration should have done more to pursue enforcement cases at the WTO. He also supported Creative Commons licensing of presidential debates. (Update Sept 22: he has Harold Varmus, advocate of open-access research, on his team of scientific advisors)
McCain wants to crack down on piracy

On patents:

Obama suggests reform of the patent system, which would create a “gold-plated” patent much less vulnerable to court challenge while also ensuring that "where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity."

McCain argues that "too much protection can stifle the proliferation of important ideas and impair legitimate commerce in new products to the detriment of our entire economy." McCain wants to provide alternatives to litigation in resolving patent challenges.

On net neutrality

McCain doesn't believe in net neutrality.
Obama does.

now online: The Development Agenda at WIPO: Where is Canada?

2008-08-26T10:06:00.002-05:00

An abridged copy of my paper "The Development Agenda at WIPO: Where is Canada?" is now available on SSRN.

Public domain sheet music library back online

2008-08-21T21:10:00.004-05:00

On June 29 the International Music Score Library Project (IMSLP), a Canadian-based online library of digitized sheet music came back online. Apparently CIPPIC, the Stanford Fair Use Project and others came to the rescue.

The revival of this project represents one important battle won. As I posted and, more interestingly, Howard Knopf posted, last year, the site was shut down following threats from Universal Edition AG. Universal's complaint? The site, legal under Canadian copyright law, was infringing the copyright laws of other countries. This flew in the face of Canadian copyright sovereignty; if everyone in the world has to follow the highest level of copyright held by any country in the world we'd all be operating, as Knopf noted, under Mexican copyright law, which lasts for life + 100 years.

If life + 100 seems long now, life + 50 seemed long in 1910 when the term was first considered among British possessions. That year at an Imperial Copyright Conference, one British official confessed, when he saw that the proposed term of life + 50 years “it rather shocked him.” He doubted that such a long term would be accepted by the House of Commons. Representatives from Canada and India found the proposed term long, but were prepared to go along with it. Only the New Zealand delegate, Hall Caine, refused to go along, blocking a unanimous recommendation on the point, which nevertheless was eventually incorporated into law throughout the British dominions.

The IMSLP project demonstrates what those decisions were really about. The willingness of Britain, Canada and India to go along with shockingly longer and longer terms, and the tendency of many projects to cave under threat of legal action, have made projects like the IMSLP rare. However for now, with the principle of copyright sovereignty defended, Canada is making possible a wonderful resource for music students and lovers around the world.

ALAI to discuss C-61 copyright bill with officials

2008-08-20T07:36:00.004-05:00

The Canadian chapter of ALAI presents an event Sept 9 at the Hôtel Inter-Continental in Montreal where "Representatives from Heritage Canada and the Department of Industry will explain the contents of the bill that was tabled last June to amend the Copyright Act." Michael Geist can think of about 61 things that need explaining, mainly to do with the bill's time shifting, music shifting, TPM, and ISP notice-and-notice provisions. Hope it's a long meeting.

WIPO public domain discussions

2008-07-17T07:40:00.003-05:00

Some really interesting discussions about the public domain took place as a part of the development agenda discussions last week at WIPO. It was all part of a discussion on how WIPO could:

promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions. (Recommendation 20 of the Development Agenda)

An account of the discussions can be found here.

It was noted that there are different definitions of 'the public domain' - that sometimes it is defined to include anything that isn't copyrighted, and that other times it is defined to include anything that is publicly accessable, regardless of its copyright status. However, the two senses of 'the public domain' are linked; the great thing about 'the public domain' (former) is that things in it can be more easily put into 'the public domain' (latter) in old or new ways.

The Canadian Intellectual Property Office uses the former definition in its Guide to Copyrights:

Facts, ideas and news are all considered part of the public domain, that is, they are everyone's property.

Note too, that you cannot hold a copyright for a work that is in the public domain. You can adapt or translate such a work and have a copyright for your adaptation or translation.

Copyright applies to:

a song
a novel
a play
a magazine article
a computer program

Copyright does not apply to:

the title for a song
the idea for a plot
a method of staging a play
Hamlet (a work in the public domain)
the facts in the article
the name of the program (this might be protected through a trade-mark registration)

The Government of Canada's Framework for Copyright Reform also uses the former concept:

Copyright protection exists for a limited time, typically the life of the author plus an additional fifty years. After that time elapses, protection ends and the work falls into the "public domain".

While the emphasis in intellectual property policymaking tends to be on the public domain in the former sense, there are many ways that governments do and should encourage the public accessibility of information and works (through use of open source software and Creative Commons licensing, government online policies, policies to make research accessible, etc etc). The connections between these policies and intellectual property policy should be kept in the forefront.

At the WIPO meeting the idea of doing a study: a comparative analysis of countries’ legislation asking the question, “how do Member states define the public domain” was discussed. I think such a study would be extremely helpful and interesting, especially in highlighting the importance of both interrelated senses of the public domain in government policy.

Pence on Procedure of Development Agenda

2008-07-11T11:35:00.003-05:00

Eliot Pence has just put out a paper on process and procedure at the WIPO Committee on Development and IP. He has some suggestions for re-structuring the discussions away from the cluster approach currently in use. More interesting, in my view, are his observations about the importance of procedure in the CDIP debates and the role of the WIPO secretariat. He argues that what is sometimes referred to as 'procedural wrangling' is actually highly important and political; that under current procedures the committee chair may be placing too much emphasis on speed over a thorough process; that the involvement of the secretariat can have a moderating effect on debate because of its natural middle-of -the-road approach, and that the standard procedures used at WIPO committees are important to the way WIPO does its business and to how it implements the development agenda in the long term.

CDIP discusses IP & competition

2008-07-11T09:32:00.003-05:00

This week's meetings of the Committee on Development and Intellectual Property wrap up at WIPO today. While the first two days focussed on financial and human resources aspects of implementing the development agenda, Wednesday focussed on the interface between IP and competition policy. The development agenda includes recommendation no. 7, that WIPO should

"[p]romote measures that will help countries deal with IP related anti‑competitive practices, by providing technical cooperation to developing countries, especially LDCs, at their request, in order to better understand the interface between intellectual property rights and competition policies."

There are calls for a workshop on the issue to be held in Geneva and for WIPO to develop a nuanced approach to the interface between competition policy and IP.

IP and competition policy is an area of the development agenda in which Canada has shown a particular interest, having hosted a workshop on that issue last summer at WIPO as a side-event to the development agenda discussions. It would make sense, therefore, if Canada were to be in the loop as positions continue to be developed at WIPO.

New article: “The Development Agenda at WIPO: Where is Canada?"

2008-06-25T14:59:00.004-05:00

My paper, “The Development Agenda at WIPO: Where is Canada?", has just been published as Chapter 10 in Innovation, Science and Environment: Canadian Policies and Performance 2008-2009 (Edited by Glen Toner. Montreal: Published for the School of Public Policy and Administration, Carleton University by McGill-Queen's University Press, 2008:190-208). It looks at Canada's role at the WIPO development agenda discussions in the past few years.

Love on WIPO

2008-06-25T14:56:00.001-05:00

James Love has some interesting commentary on the goings-on at WIPO in the past year. He argues that "WIPO is emerging as forum for real debates over global intellectual property policy."

WIPO Development Agenda: concrete proposals

2008-06-23T12:20:00.003-05:00

The WIPO Committee on Development and Intellectual Property has issued a working document (CDIP/2/2) that sets out a number of concrete proposals for the implementation of the development agenda. They include:

Instructions to WIPO staff and consultants. It is proposed that the principles set out in the WIPO development agenda on technical assistance (that "WIPO technical assistance shall be, inter alia, development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States and activities should include time frames for completion. In this regard, design, delivery mechanisms and evaluation processes of technical assistance programs should be country specific.") will be:

sent out to all staff and consultants with instructions that these general principles be followed
included in short, medium, and long-term policy documents
included in any new guide or manual on technical assistance
included in other WIPO publications

Papers to be written.

a paper on Trust and voluntary funds - existing and proposed - for least-developed countries to help them exploit intellectual property
a study on patent search tools that could be used by least-developed countries and how those might be made available

Pilot projects.

Pilot projects to establish IP info centres in scientific and research institutions

IT projects

WIPO proposes to expand upon the information provided on their web site on technical assistance programs, both the part available to the public, and an additional part that will only be available to member countries.
A database "to match specific IP-related development needs with available resources."

Training and Other Resources.

It is proposed that WIPO continue to provide training and efficiency improvements to IP institutions, including national IP offices and collective management organizations. Awareness-raising is proposed to be conducted with a broader range of organizations, such as technology licensing bodies at universities and business support organizations (such as chambers of commerce, professional associations etc).

Staff and consultants.

consultants and staff are proposed for these various projects: the paper writing, the IT projects, and the training and gallivanting. By my count, 5 consultants, 10 professionals, 8 general service staff, and one IT professional are proposed.

Regarding the instructions to staff and consultants, Feedback, and Training.
The dissemination of instructions to staff and consultants could be a very important foundation of the development agenda at WIPO, integrating it into the culture of the organization. Such instructions, however, if they are to generate real challenge and engagement, must emphasize openness to the various types of ideas and demands - to various ideas of what 'development-oriented' IP might be - that might be brought by recipients of technical assistance. There is a danger that this feedback might be compromised if the training provided by WIPO to the very officials in developing countries who make such demands does not include and allow for an open discussion and a varied set of ideas about what 'development-oriented' IP might be like.
I wonder if it would not be wise, as has been suggested during the development agenda discussions, for a roster of consultants who perform technical assistance to be made available and/or for recipient countries to be able to select from this list and, importantly, to nominate their additional own consultants who might be hired by WIPO to perform these duties. This might increase the independence and diversity of ideas circulating in the area.

Regarding the IT projects.
While much of the information regarding technical assistance is to be made available not publicly but only to member states, it is encouraging to note the statement that "the project will be guided by the principle of transparency and donors and recipients will be encouraged to authorize WIPO to provide as much information as possible on technical assistance activities." Release of information will nevertheless depend on the authorization of involved member states.

Regarding the partnership database (above in 4(2)), the comment of India at the IIM2 must be kept in mind:

“it was imperative to recognize that private sector partners would have a slight conflict of interest in the sort of advice that they provided: therefore, as the idea of the Delegation of the United States of America was developed further, the meeting could, perhaps, think of balancing or neutralizing the conflict of interest by having a civil society partner as part of a trilateral arrangement.” (IIM/2/10 para 129)

Regarding Training.
It is noted that the working paper proposes that, "In future, WIPO activities in this area shall pay greater heed to the need to take into account the interests of the general public."

Proposal for the implementation of development agenda recommendation online

2008-06-12T09:04:00.005-05:00

Some of the preparatory documents for the next WIPO Committee on Development and Intellectual Property (CDIP) are now online. The Information Document Related to Adopted Recommendation 10 focuses on the implementation of the development agenda recommendation to:

assist Member States to develop and improve national IP institutional capacity through further development of infrastructure and other facilities with a view to making national IP institutions more efficient and promote fair balance between IP protection and the public interest. This technical assistance should also be extended to sub-regional and regional organizations dealing with IP.

It outlines various programs of technical assistance "that have been, are being or could be implemented by WIPO in the future."

While the overwhelming focus of these programs is on "training" government officials in intellectual property, strengthening collective management organizations and intellectual property offices, and encouraging the private sector in the exploitation of intellectual property, there are also a few points that stand out. The document proposes:

"Increased emphasis in [training] sessions on how to develop a balanced IP system,"
that legal assistance include "Advice with regard to accession to, and implementation of, international treaties, including regional agreements, taking into account the development priorities and objectives and available flexibilities." (emphasis added)
"Support for regional and sub-regional initiatives to develop regional and sub-regional legislation in the areas of IP, Traditional Knowledge and Traditional Cultural Expressions (for example in OAPI and ARIPO),"
"Organization of strategic seminars or fora for policy makers and senior IP administrators to discuss and share their views on emerging IP issues such as traditional knowledge, copyright in the digital environment, the role of IP in economic development, flexibilities in IP system, IP and Public Health, strategic use of patent information, evolving role of IP administrations in national development, etc.," and the "Inclusion in such fora of more topics relating to IP protection, public policy objectives and public interest," (emphasis added)

The document also notes, in its proposals with regard to small and medium-sized enterprises (SMEs), that:

SMEs are not only creators but also users of IP. Thus the program assists them not only to better protect, manage and exploit their innovations and creativity but also to make it accessible to others.

Interesting also are the documents' various references to the 'user community', which at times seems to refer to the users of IP offices and at other times the users of IP.

Given the general emphasis within the document on the usual style of WIPO technical assistance, with the emphasis on promoting the protection of IP and strengthening collective management organizations, which generally serve to export funds to rich countries, the proposals contained in this document cannot be seen as an indication of a sea change at WIPO. Rather, the document contains a few small but potentially important steps in recognizing the complexity of interests in the international IP system.

Candidates for WIPO DG announced

2008-02-07T12:58:00.002-05:00

(updated)
The WIPO coordination committee has announced the names of nominees for the WIPO Director General. There are 15 in total.

Several of the nominations have been posted online. Three of those are WIPO insiders, two are diplomats with high-level experience at international forums but no specific specialization in intellectual property, and one is a lawyer/academic with a strong specialization in intellectual property.

José Graça, nominated by Brazil

a WIPO insider who has worked a Director at WIPO since 2004 and whose involvement at WIPO dates back to 1993
had a prior career as a professor and at the intellectual property offices in Brazil

Yoshiyuki Takagi, nominated by Japan

also a WIPO insider who has occupied Director and Executive Director positions at WIPO since 1994
held posts as a diplomat and in the Japanese Patent Office earlier in his career

Philippe Petit, nominated by France

Deputy Director of WIPO since 2001
former French diplomat

Enrique A. Manalo, nominated by the Philippines

Manolo has been chairman of the WIPO General Assembly for the past 2 years
he has worked for the Philippine Foreign Affairs since 1979
Manalo wrote an important report as part of the WIPO development agenda proceedings that attempted to sum up the development agenda proposals and the related work already being done at WIPO

José DelmerUrbizo Panting, nominated by Honduras

a diplomat involved at the Group of 77 and UNCTAD who has held high-level posts in Honduran banking and government sectors

James Otieno Odek, nominated by Kenya

an academic and a lawyer who has researched and published on intellectual property, trade, development, and human rights (with a teaching career dating back to 1989, he received an LLM from Yale and his doctorate in law from University of Toronto in 1995)
involved in high-level WIPO bodies since 2006

My initial preference is for the outsider with expertise in intellectual property: Kenyan James Otieno Odek. His specialization in intellectual property, trade, development, and human rights and his outsider status could help WIPO to have vision in setting priorities and effecting change to meet many of the most important issues that WIPO faces today. He may, however, be the underdog - the youngest of these candidates at 44 years old, and with less experience as a diplomat and at WIPO than the others.

Carolyn Deer has set out a number of criteria that should be met by WIPO's new Director General in a very helpful commentary on IP-Watch.

WIPO comments on Antigua WTO ruling

2008-01-24T13:17:00.000-05:00

An interesting debate has stirred over the WTO's recent ruling allowing Antigua to suspend copyright protections on certain US goods as part of a dispute resolution on online gambling. (NYTimes; Howard Knopf) The Antigua Sun reported last week on comments made by the director of the Copyright Law Division of WIPO, Jorgen Blomqvist, who raised concerns that while such suspensions might be allowed under the WTO, Antigua might nevertheless be in violation of the WIPO-administered Berne Convention if it suspended copyright protection for US goods. According to yesterday's Bridges.org, WIPO is now distancing itself from those comments, and legal experts are weighing in on the question.

World Congress on Combatting Piracy and South-Centre side-event

2008-01-24T12:59:00.000-05:00

On Feb 3-5 2008 a World Congress on Combating Counterfeiting and Piracy will be held in Dubai. Feeling that this event, which is organized by the World Intellectual Property Organization (WIPO), Interpol, the World Customs Organization, and other groups, will "lack multi-stakeholder participation, particularly from civil society," the South Centre will host a side-event on Feb 4 entitled "Policy Options for Developing Countries on the Enforcement of Intellectual Property Rights." According to the South Centre:

The Congress seeks to advance a global consensus on priority actions that reflect a one-sided agenda on strengthening enforcement of intellectual property rights. Though lacking official endorsement,the recommendations so far produced by the Congress provide a narrow perspective on the enforcement of intellectual property rights that unduly shift the burden of private rights enforcement to government.

CIPO on Intellectual Property and Competetiveness

2008-01-15T10:22:00.000-05:00

The Canadian Intellectual Property Office (CIPO) has made a submission to the Competition Policy Review Panel. They make several points:

on trademark registration:

Canada should join the Madrid system of international registration of trade-marks offers trade-mark owners, which allows trade-mark owners to have their marks protected in multiple member countries by filing one application for registration with the local IP office

Canada should ratify the Singapore Treaty on the Law of Trademarks, which would mean "more harmonized policies with respect to registration and maintenance of trade-marks, and a somewhat stronger voice for Canada in negotiating ongoing changes to the international trade-mark regime."

on patent commercialization:

"improving access to relevant IP data" for SMEs, since such access is "instrumental to the identification of successful commercialization partnerships both domestically and internationally"
"better support for technology transfer capacity in universities and promote a culture of entrepreneurship and commercialization in these settings"

on harmonization generally:

Although they don't mention the WIPO copyright treaties directly, they push international IP harmonization hard, arguing that a

"“tyranny of small differences” between regimes that can impose significant costs on Canadian businesses operating in foreign markets. Addressing these “small differences” through initiatives that harmonize the processes of registration and maintenance of IP rights is likely to effect a positive change in both Canada's attractiveness as a place to do business and in the global outlook of Canadian companies."

"Greater harmonization of administrative processes also allows foreign enterprises wishing to invest in or partner with Canadian firms to register and protect their intellectual property without adjusting to as many of the particularities of the Canadian IP system."

Development agenda agenda

2008-01-11T13:13:00.001-05:00

WIPO has posted the agenda for the first meeting of the Committee on Development and Intellectual Property, March 3-7 2008, online. On the agenda:

Opening of the meeting
Election of Officers
Adoption of the Agenda
Adoption of Rules of Procedure of CDIP
Consideration of Work Program for Implementation of Adopted Proposals
Future work
Summary by the Chair
Closing of the session

The future of Oldies

2008-01-04T18:22:00.000-05:00

The CRTC has initiated a public consultation on its policy on the broadcast of hits on FM stations. Currently, English-language commercial FM stations are not allowed to play more than 50% top-40 hits on their stations. AM stations are exempt from this policy because of the many AM stations that survive by playing 'Oldies'. The consultation centres around these and other particular provisions made for special-case radio stations, asking whether the special exceptions for Oldies and other special-case stations with regard to hits should be continued.

New WIPO Committee on Development and Intellectual Property (CDIP) set to meet in March

2007-12-28T10:01:00.000-05:00

WIPO's new Committee on Development and Intellectual Property has set its first meeting date for March 3-7 2008 in Geneva. The committee has three main tasks. First, and most immediately, it will develop a work-program to implement the development agenda recommendations made in June. It will also monitor and assess on the implementation of the development agenda, as well as undertaking further discussion on IP and development.

Get ready!

2007-12-04T08:37:00.001-05:00

Copyright watchers are gearing up; a new copyright bill is said to be waiting in the aisles for introduction to the House in the next couple of weeks. By many accounts it will be a step back in time for Canada if this bill passes unaltered. Michael Geist:

The new Canadian legislation will likely mirror the DMCA with strong anti-circumvention legislation - far beyond what is needed to comply with the WIPO Internet treaties - and address none of the issues that concern millions of Canadians. The Conservatives promise to eliminate the private copying levy will likely be abandoned. There will be no flexible fair dealing. No parody exception. No time shifting exception. No device shifting exception. No expanded backup provision. Nothing.

Geist has a few ideas about what we should all be doing right now to try to steer this bill in a more progressive direction. It's going to be an uphill battle; apparently Industry Minister Jim Prentice doesn't want to discuss this in public.

Jane Rule

2007-11-29T10:04:00.000-05:00

Jane Rule, the great Canadian author and activist against censorship, passed away last night. I greatly admire Jane Rule and so would like to share a story she told during in her testimony at the Little Sisters trial in 1994 regarding Canada Customs' censorship of books coming in at the border. Some of Jane Rule's own books had been detained, though not prohibited, by Customs. In her testimony she offered her views, as an author and academic, on the merits of many of the books that had been thereto detained. She also told the following story:

I have had the experience of knowing one Customs officer because he was was in a class of mine at UBC, English 100, the freshman English class.
I had been assigned a special class, a particularly small class of students, all of whom had failed English 100 once and some of them had failed it twice, and as many of you may know, if you fail English 100 three times, you're out of the university. So these were fairly desperate students....The young man in question had failed it twice, and if he was going to fail again, then he was out of the university. He did marginal work and I think if he had worked very hard he might have gotten a gentleman's C an gotten through, but he only did half of his assignments. In the spring, he came to me and said, "I'm really being frivolous. It's time for me to go out in the real world and earn a living and stop being a silly child." I thought that was a very sensible decision for him to come to.
Shortly after that, he came to me, and asked me if I would give him a letter of recommendation to be a Customs official for Canada Customs. I thought at that time that he was a personable young man, he's good with people and probably he would make a good Customs officer, so I was perfectly willing to give him a letter of recommendation. I was not aware at that time that such a person would be given the responsibility of censoring books coming in to Canada.

Update Dec 3: I see from the G&M private obituary today (also here) that there will be a Jane Rule Endowment for the Study of Human Relationships at UBC, towards which the family is collecting donations.

WIPO Director General to step down

2007-11-15T12:54:00.000-05:00

WIPO's Director General Kamil Idris has announced in an email that he will step down a year early. Member states will now be invited to submit candidates for the appointment of a new Director General at the next session of the General Assembly in September 2008.
IHT reports.
My previous post:Canada supports discussion on ouster of WIPO director general?
Update: a circular has been posted by WIPO with the details about the nomination process.

IMSLP: The End of Canadian Copyright?

2007-10-22T20:39:00.000-05:00

A Canadian musical Project Gutenberg was taken down on Friday in the most disturbing of stories. The International Music Score Library Project allowed users to post copyright-expired sheet music online. The project was run by a student for the most honorable of reasons:

"As a musician and music lover, I find unacceptable the fact that such a wonderful thing as music can be so inaccessible in certain regions of the world. I believe that access to our culture and the Arts is a fundamental right of every human being, and not simply a privilege. Therefore, I had created IMSLP with the intention that music, which is in the public domain, should be freely accessible to every single person."

By accounts (Michael Geist and Howard Knopf give very good ones), the site fully complied with Canadian copyright law, where the copyright term is life + 50 years, because it only published the music of composers dead longer than that. The problem? Universal Edition AG argued that the site was infringing copyright in other countries, where copyright is life + 70 or even life + 100 (Mexico) years.

The site, however, is in Canada, run by a Canadian. By accounts (Michael Geist and Howard Knopf again), the site therefore is therefore subject to Canadian law - not European or American or Mexican law.

If the Universal Edition AG logic takes hold, it means that Canadian copyright laws don't matter on the Internet. It means that Canadians would be obliged to comply with whatever the highest, most absurd level of copyright protection in the world happens to be, no matter what Canadian law might say about it. Either that, or Canadians could wall-up Canadian web sites so that other high-protectionist countries can't access them.

The student who ran IMSLP can't fight Universal Edition AG. His call for others to take up the torch and keep IMSLP online is moving and inspiring and hopefully will lead to a bigger fight.

As a Canadian, I have a certain satisfaction in knowing that Canada, so far, has stuck with life + 50. And, as a former music student, I also know how very expensive sheet music is (including online; I've written elsewhere about crappy online sheet music stores). Even that which is "in the public domain" is accessible only to the very privileged and quite unaffordable to most music students. I don't know how many music books I've left at the store; the prices are astronomical. Even home-written guitar-tab sites are also being shut down by music publishers.

If Universal cared about music, it would be offering to sponsor this site with ads, not shutting it down, along with Canadian copyright sovereignty.

Implementing the Development Agenda for WIPO

2007-09-30T12:16:00.000-05:00

Commentary and events related to implementation of the development agenda at WIPO:

There are also a number of efforts to apply development agenda ideas to the field of Internet governance.

I will try to add to these lists as I see more.

Development agenda adopted at WIPO

2007-09-28T11:33:00.001-05:00

According to Thiru Balasubramaniam, the development agenda has been adopted today at WIPO. The 45 items proposed by the development agenda committee have been adopted by the General Assembly for immediate implementation, and a new Committee on Development and Intellectual Property (CDIP) will be established. The CDIP will meet twice a year. At its first meeting, the financial and human resources required to implement the development agenda will be discussed.

Broadcast Review and Copyright

2007-09-26T08:36:00.000-05:00

The recently published review of Canadian broadcasting policy by Laurence Dunbar and Christian Leblanc makes a number of recommendations with regard to copyright and Canadian broadcasting.
First, the report provides a primer on the main areas in which CRTC policy intersects with copyright policy.

Signal substitution. The first copyright-related area of broadcasting policy is signal substitution. Here, the CRTC acts "to protect programming rights" through simultaneous substitution, wherein cable companies substitute Canadian signals over simultaneous American broadcasts of the same programming. This protects "the value of the local rights to television programming acquired by over-the-air broadcasters," allowing Canadian broadcasters to have a monopoly on the advertising market for that program. (p. 59-60)
Retransmission. The second copyright-related area of broadcasting policy is retransmission. Here, the Copyright Act gives cable companies a statutory right to retransmit local and distant signals. In the case of distant signals, they must pay royalties set by the Copyright Board. This statutory license was argued to apply equally to Internet broadcasters like JumpTV and ICraveTV, but legislation passed in 2002 restricted the statutory license to offline broadcasters only. A public consultation by the CRTC led it to conclude that no change was necessary to CRTC policy with regard to this issue.
CRTC regulations referred to by the Copyright Board. The report notes that some CRTC regulations are referred to by the Copyright Board in setting royalty rates, and that changes to those regulations can affect the royalty rates paid by broadcasters. CRTC regulatory changes can therefore require copyright collectives to update their royalty regimes to compensate for CRTC regulatory changes that would adversely affect broadcasters' royalty payments. Delays by copyright collectives in doing so can, in turn, delay CRTC regulatory changes. (p. 65-68)
Concerns about competition from copyright-infringing Internet content. The report makes note that copyright-infringing content on the Internet may be cutting into broadcasters' audiences. (pp. 75, 243) "Other than copyright laws," the report observes, "there are no protections currently in place to shield Canadian broadcasters from the effects of Internet-based programming." (p. 76) However, the CRTC has seen that, in radio at least, broadcasters remain fiscally healthy despite the challenges of new media and online competition. (p. 21)

Second, the report makes several recommendations:

The report recommends that the CRTC become involved in a multi-disciplinary committee to address policy areas that fall outside the CRTC's mandate, such as copyright policy. (p. 28, recommendation 4-5) In general, the report argues that "there is a case for the Commission paying closer attention to issues relating to copyright and copyright policy when it is exercising its authority to regulate the broadcasting system, and for the Commission to coordinate its efforts with those government bodies that are responsible for copyright where there is an overlap between broadcasting regulation and copyright policy or enforcement as it relates to broadcast undertakings." (p. 59)
The report recommends reevaluation of the simultaneous substitution policy in light of its effects on the scheduling of Canadian programming. (p. 50, recommendation 6-3)
The report recommends that the CRTC's exemption for New Media should be reassessed: "Many of the observations made by the Commission regarding New Media and Internet
retransmission in 1999 and 2001 about the nature of the Internet are no longer valid
and need to be re-assessed." (p. 68) However, such a reassessment should not go too far: now that geo-blocking can be effectively carried out (Internet sites can effectively control which geographical regions can view them), concerns that Internet broadcasting could undermine territorial licensing of broadcasts are no longer justified, and companies like JumpTV need not break the boundaries of territorial markets. Although these companies do not presently benefit from the statutory license under the Copyright Act, they are able to set up private licensing arrangements with rights holders, and the CRTC New Media exemption means that they do not conflict with CRTC regulations. This is, the report recommends, the way it should be: "We recommend that, to the extent that private licensing agreements among producers, distributors, and broadcasters continue to find ways to provide new business models and new platforms from which Internet users can access programming, the Commission be wary of interfering in this nascent market by attempting to introduce regulatory measures that could disrupt existing and developing business models." (p. 59-68, recommendation 8-1)
The Report recommends a new national policy for electronic media, dealing with a variety of policy areas, including copyright: "Canada is in need of a national policy for electronic media, and needs to have available all of the tools of government to give effect to it. This
likely includes copyright, fiscal measures, and new programs to incent Canadian participation in new media ventures. While it is beyond the jurisdiction of the CRTC to implement this national policy on its own, we urge the Commission to consult with other Governmental agencies and departments to begin such a process." (p. 78, recommendation 9-1)

Canada supports discussion on ouster of WIPO director general?

2007-09-20T13:32:00.001-05:00

Intellectual Property Watch reports that Canada may be in support of a proposed agenda item for the upcoming (next week) meeting of the WIPO General Assembly. The proposed discussion (number 12 on the proposed agenda) pertains to the discovery that the WIPO Director-General Kamil Idris misrepresented his age by 9 years on official WIPO documents over many years, and suppositions that he may have advanced more quickly through the ranks at WIPO by appearing, as a result, to be older than he really was.
While, according to IP-Watch, many developed countries support further pursuit of this issue and call for Idris to step down (including the EU and Portugal, the current head of Group B of which Canada is a member), many developing countries support Idris, who is from Sudan. According to IP-Watch, some developing countries consider the whole issue to be a politically-motivated smear campaign over an issue that has been blown out of proportion and is insufficient to justify calls for Idris' resignation.

Intellectual Property Issues in ICT4D

2007-09-13T12:59:00.000-05:00

My report, Intellectual Property Issues in ICT4D, is now available online. Prepared for Canada's International Development Research Centre, this report reviews intellectual property issues in the area of information and communication technologies for development (ICT4D). Issues covered include open access, Creative Commons, free and open source software, copyright limitations and exceptions, traditional knowledge, collective management organizations, competition policy, the WIPO development agenda, and the draft Access to Knowledge Treaty as they relate to intellectual property and developing countries.

Canada Objects to IP Clauses of UN Declaration on the Rights of Indigenous Peoples

2007-09-13T11:17:00.001-05:00

Canada has expressed its intent to vote against the UN Declaration on the Rights of Indigenous Peoples, in part because of objections to clauses it includes on intellectual property. In a press release, Canada said, "We have stated publicly that we have significant concerns with the wording of provisions of the Declaration such as those on: [...] intellectual property[...]."

The intellectual property-related clauses in the treaty include:

Article 11
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 31
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural
heritage, traditional knowledge, and traditional cultural expressions.

CIPO updates business plan

2007-09-04T09:49:00.000-05:00

The Canadian Intellectual Property Office (CIPO) has just updated their business plan. One element of the plan includes a focus on international copyright. According to CIPO's plan, CIPO will become more active on the international stage. In September, for example, CIPO will head the Canadian delegation to the World Intellectual Property Organization (WIPO)'s meeting of the General Assembly, where the proposed development agenda for WIPO will be voted upon. CIPO's Commissioner of Patents, Registrar of Trade-marks and Chief Executive Officer, David Tobin, led the delegation last year. Mary Carman took over his position in April.

Geist on The Canadian Telecom Complaints Commission

2007-07-24T22:30:00.000-05:00

Michael Geist comments on the new Canadian Telecommunications Complaints Commission, launched yesterday, saying that telecom companies have acted independently on the Canadian Telecom Review Panel's recommendation to set up the Commission, thereby preempting the CRTC's oversight of its creation and related public consultations. The new commission, he says, comes without many of the elements recommended by the Canadian Telecom Review Panel. Such a premptive launch should have been prohibited; instead, the Industry Minister welcomes it.

Bush on Performers' Rights

2007-07-24T22:08:00.000-05:00

Howard Knopf runs the funniest blog anywhere on copyright. Yesterday he reported some of President Bush's comments, and I just had to repeat them:

Q Mr. President, music is one of our largest exports the country has. Currently, every country in the world -- except China, Iran, North Korea, Rwanda and the United States -- pay a statutory royalty to the performing artists for radio and television air play. Would your administration consider changing our laws to align it with the rest of the world?
THE PRESIDENT: Help. (Laughter.) Maybe you've never had a President say this -- I have, like, no earthly idea what you're talking about. (Laughter and applause.) Sounds like we're keeping interesting company, you know? (Laughter.)
Look, I'll give you the old classic: contact my office, will you? (Laughter.) I really don't -- I'm totally out of my lane. I like listening to country music, if that helps. (Laughter.)

TM Win for Dykes on Bikes

2007-07-24T07:55:00.000-05:00

The San Francisco Women's Motorcycle Contingent, otherwise known as 'Dykes on Bikes', has successfully defended their right to trademark their name after a man challenged the trademark, complaining that the term 'dykes on bikes' was offensive to men, scandalous and immoral. This isn't the first time the organization has had to fight for its name; the U.S. Patent and Trademark office originally rejected their attempt gain a trademark on the grounds that the term 'dyke' was offensive to lesbians.
SFGate reports.
Update January 8, 2008.