CAUT Copyright Conference

The Canadian Association of University Teachers hosted a conference this past weekend (October 27-29) titled “Controlling Intellectual Property: The Academic Community and the Future of Knowledge.” Here are my notes from all three days.

Day 1

CAUT President Greg Allain introduction
•fed government is currently preparing amendments to copyright legislation

Michael Geist: Copyright and Control in the Digital Age
Cancopy law, CMEC's Copyright Matters!; Captain Copyright (Access copyright)
-these are very similar - you don't see user rights in there; it's as if SCC decisions never happened
-education needs a new vision of copyright
-The good news story: blogs, myspace, postsecret, flikr,
-knowledge sharing, wikipedia, wikinews, project Gutenberg, MIT open courseware,
-the incentive s are different from traditional copyright incentives
-CIHR policy on open access, nature peer review online trial, Alouette Canada - open digitization project
-all kinds of open source software
-SCC reshaping of view of copyright from Theberge, CCH,

The bad news:
C-60 will be revived in worse form
-tepid gains for education
-WIPO & problems for security researchers
-insufficiency of fair dealing - Telus has been talking about this
-StatsCan hadn't taken open licensing as a category in its innovation analysis bulletin
-education exception might drive a wedge between AUCC and students, librarians

What to do?
-not focus on an internet exception
-DRM - this is the main issue on which education will lose money
-open access models
-open licensing
-expanded fair dealing
-use CCH
-drop internet exception
-focus on digitization - build national digital library - do more than Alouette - Google concerned about getting involved as result of our laws
-get rid of crown copyright
-freeze copyright terms - there is already a consultation document on extending it
-focus on contractual limits - contracts must reflect principles

Questions:
A: there won't be another public consultation
A: nobody from Heritage, Access is here
-CCH was a disaster for them; they won't sue again that's for sure, but amazingly the education community still doesn't exercise its rights
-Bev Oda was specially invited
A: government has education as a priority but AUCC and CMEC has not spoken up on our side; MPs could be beholden to education community in their ridings - colleges and libraries

Panel One: Copyright Action
Convener Philippa Lawson, CIPPIC
-notes that Laura Murray will be going to NYU on a Fulbright

Paul Whitney, City Librarian Vancouver Public Library: The Library Perspective
-Oda has pledged bill before end of year
-it's unlikely that a bill will make it through the house before an election
-it's probably good that it's been so long since our last reform because we've had a chance to learn
-user rights advocacy has come a long way
-now these issues conceivably touch every man, woman and child in Canada and we've got to work at getting the message out
-user rights have to be a part of any dialogue
-we need to prioritize our concerns. For public librarians, priorities are DRM first, then contract law - both are potential trump cards - there is a real fear that libraries will be disintermediaried. Geographic coding also an issue. Term will be one of the real battles; this has a huge impact on efforts to digitize our heritage; most of those works are orphan.
In 1954 only 9% of copyright terms were renewed (after 28 yrs you renewed for another 28); this differed by medium. Film and music was renewed much more; those two are still driving the agenda. Corry Doctrow (sp? - most famous Canadian blogger and novelist) said "the fundamental threat to novels is obscurity not piracy."
We need a fair dealing right for preservation - we need to make sure that is still possible, including ability to violate DRM for that purpose. Moral rights are a difficult one - so he doesn't have enough time to talk about it - they will become more and more problematic.
Policy -makers tend to look at policy through a rear-view mirrors. Recording industry is driving the debate and they are very behind, just don't get it although they do more than they used to.
Economic might is right: this is another challenge.
Internationally, US is rolling out DMCA standard.
We need to learn from others: Bergman study - available on SSRN - found that educational obstacles and business models were detrimental to education: unclear copyright law on fair and educational use; DRM adoption; practical difficulties obtaining right to use; undue caution by gatekeepers
Canada has a unique opportunity to make a difference. We need people with profile to stand up. We need to be able to tell the story of the impact copyright has on people in the classroom.

Laura Murray: Copyright: An Evolving Academic Staff Response
-in the materials: a users' rights kit - 6 -part test from CCH, fair dealing exceptions
-presuppositions about law:
-is accountable to and depends for legitimacy on what communities of people do
-law exists in the interpretations we make - we are making law - most of us will never go to court
-citation systems are different from copyright, is based on attribution not permission, which is what copyright is based on. Citation involves reputation economies (buzz), hypertext practices, creative commons arrangements, protocols for tracing oral and traditional cultures. Citation is a subspecies of ordinary conversation. Janet Giltrow (sp?) started her on this. This bestows cultural capital but not money directly. You can build without the risks of actual permission. She shies away from 'gift economies' which sounds nicer than it is. Usually, complete copying of work is not accepted in gift economy because it isn't seen as adding value.
Copyright law offers space for attribution due to limited term, fair dealing, moral rights. Unauthorized use is seen as an exception. In attribution, it is the rule.
These are therefore based on opposite foundations, although we often view them as linked.
We have rulebooks for citation, systems for dealing with infractions - these systems might not work very well - what works is inducting people through practice into how the system works.
Rod McDonald - Lessons of Everyday Law (book) - law is most successful as a set of guidelines and structure, although sometimes it is also seen as a way of in detail controlling people's actions.
-we shouldn't assume we are being given orders or should give orders
-we already have a quasi-legal mode of citation
-when we evaluate whether we
-we should keep in mind the SCC decision - we should go about our business
-fair dealing is pretty good for us - not so good for authors - if we cringe we are limiting the future for other academics
-we have bad habits of asking to do things for which we have the right
-SFU has a manual on copyright that doesn't mention fair dealing
Questions we should ask:
Can I do it (something I want to do with a DVD for example or other digital materials) with a book?
If not, can we renegotiate the contract for price?
Will this get in the way of the citation system?
Does it allow a human to make a decision? Can the author, for example, make a decision?
Suggestions for action:
-we should memorize test in CCH and not ask lawyers - run it for ourselves
-we shouldn't get hung up on asking for specific exceptions in legislation, we should have broader principles that allow us to make decisions. Also, then educators aren't asking for specific exceptions but principles. It's a rhetorically stronger position.
-the intervention of individuals can be powerful - a letter about your experience to an MP, for example. It's individuals that are voters, not the corporation.
-We have to let students know what their rights are
-Faculty associations should add user rights to their universe
-CFS, CAUT could send a best practices for fair dealing across the country; a fair use checklist that allows people to do it themselves
-library policies, software licenses need to measure themselves against user rights - libraries have come a long way but maybe not the info-tech people.
-talk about whether it's worth reassessing the role of the Access agreement
-it has not been the Canadian way to push the limits
-we should not leave brave individuals to do that for themselves

Angela Reginer, Canadian Federation of Students: Students Join the Fray
-after Bulte report approached by CAUT to come together on the issue to combat aggressive content lobby
-it affects students' everyday lives - has influence on tuition, access to information, infringement on privacy rights
-does research, lobbying, membership mobilization
-challenges:
-increasing user fees, less funding
-portrayal of students as plagiarizers, down loaders, consumers of education
-they hosted speakers, encouraged unions to do so too, have fact sheets, articles, adopted policy in Nov 2004 calling for a fair and balanced copyright act identifying fair dealing, anti-circumvention, ISP liability, etc
-key issues for students are tuition fees, access to the Internet, privacy
-has done lobbying - MPs haven't heard the voice of the education community as much as from content industry
-creating coalitions with educational community, privacy community, creators, musicians

Questions:
Laura Murray confirms that we may be paying for things that would be free under fair dealing
AUCC negotiates on behalf of universities
Access Copyright’s market share is shrinking because they can only license for print



Day 2

Panel Two: Trade and Treaty Obligations
Elizabeth Tosti, panel convener makes remarks on IP in Denmark and Norway

David Robinson, Associate Exe Director CAUT: Trading IP: a new global agenda?
Globalization is reshaping government policy. There is deepening economic integration based on re-regulation not deregulation. Knowledge and education is increasingly seen as a commodity. Research is tied increasingly to commercial outcomes. Examples: recruitment of fee-paying overseas students, PPP, branch campuses overseas, brand licensing, e-learning and distance ed., There are trade agreements with IP stuff like NAFTA Ch 17 which extended patents to 20 years and got rid of compulsory licensing regime, WTO agreements TRIPS and GATS, which includes education services, R&D services, domestic regulation.
TRIPs: sets minimum IP standards, extends IPRs to computer programs, integrated circuits, plant varieties, pharmaceuticals; creates a ratcheting up. TRIPs hot buttons: access to affordable medicines - the flexibilities have never been fully implemented; traditional knowledge - bio-piracy education and research - access to knowledge and research
GATS: covers all modes of supplying services across borders; it locks in and intensifies pressure to commercialize
WTO Training Package, 1998 says there are advantages to agreements including overcoming domestic resistance
General obligations:
-transparency
-MFN
-Specific obligations: national treatment (ruling against local hiring preferences, public funding to domestic institutions), market access (quotas on institutions allowed, restrictions on imported educational materials, accreditation of institutions, measures favoring non-profit all violate this)
-Domestic regulation
•Canada has no GATS commitments on education services, some commitments on research & development (social sciences), will not make or seek commitments on "public" education
Jamaica and south Africa made agreements on education that did not work, shady education institutions came in.
GATS negotiations were suspended in July; high level meetings and informal talks are continuing; this makes it even less transparent. Developing countries are coming under a lot of pressure to make significant commitments on education.
What is to be done?
•We do need rules governing international education and research, but those rules should be based on educational not commercial objectives. There should be a moratorium on TRIPs and TRIPs-plus agreements. We should take education and research out of GATS and other trade agreements. Too many universities have allowed themselves to be caught up in commercialization, establishing for-profit subsidiaries etc.

Myra Tawfik: Canada and the WIPO Internet Treaties
Canada bound to Berne since inception in 1886. Berne set minimum standards of copyright. It has been revised a number of times for new technological development. The last major revision was 1971 - Paris text.
It's harder to get hundreds of countries to sit down, so they work on specific issues - like WIPO Internet treaties. Next Canadian reform is designed to bring Canada into line with WIPO treaties. These treaties have brought to light a fierce battle of ideologies about what copyright is supposed to do. "Our hands are tied" is an attitude often taken by MPs. That is disingenuous.
There were three treaties: WCT, WPPT, a database treaties. 160 countries were at the conference, including Canada. Outcome: two were adopted. 1996.
Concerns arose before that in 80s. Studies looked at new technologies. we had IHAC in Canada. It was the result of the US study that resulted in a 1995 white paper setting out US digital agenda which it seeks to import via international treaties. US is only net exporter of copyright works in the world. It sets a maximalist agenda. WIPO had meetings from late 80s to 1996.
We have walked away from treaty obligations; we walked away from Kyoto after ratifying; we can also walk away from WIPO which we have not ratified. Doomsday warnings about not singing emanate largely from the outside - the US.
We need to watch US bilateral agreements such as the US-AUS treaty which set out how US digital agenda is to be implemented. Here they can implement what they failed to do in WIPO treaties.
Canada's agonized relationship with int'l treaties:
Keys 1993: the interests of Canada lie in minimizing outflow of copyright royalties. Copyright being used to pursue other undisclosed policy goals - US plays dominant role.
•we are a net importer, but time and time again we have been swayed to meet the needs of others
•Myra is compiling a list of favorite quotes from Valentini: re pirates, protecting the human race, terrorists
•Canadians are more muted. CRIA said if we wish to remain competitive marketplace it won't be by creating widgets, but by creating works of the mind.
-but those who we are protecting are not really us - Canada is not a strong copyright producing country
•we are driven by outside agendas, we debate, we are not entirely convinced these treaties server our interests but we find reasons and sign on; usually we don't get results we hoped for
-in past, Britain prohibited Canadian publishers from producing cheaper copies of British works, Canadians had to buy books direct from Britain; this created tension within colonies. Canada pleaded with Britain, arguing it was the responsibility of governments to provide access to info at low prices, that access to info is a social good. At that time industry, authors, users were united about what strong copyright meant for Canadians but Downing St. had right to refuse any Canadian copyright act. Canada argued that great countries have strong literature but saw its own literature in a state of decay. (William Kirby in 1883) Richard Lansfield 1896: interests of Canada have been cruelly sacrificed for the past __ years.
•now interests of Canada have been sacrificed for 150 years.
•we are still very much guided by EU and US in international copyright treaties
•doubt as to whether these are doing anything for our own interests, which are improving meaningful access to knowledge and information
•we twice tried to remove ourselves from Berne which we were signed on to by Britain; we were told that it was uncivilized to do so - even while US did not become part of Berne until 1989
•when Britain finally cut us loose we remained part of Berne on faith that we would one day become major players in the international exchange of copyright works
-we were satisfied for a long time with Rome revision. Government report after report said it is not in Canada's best interest to strengthen copyright any more
-but we did implement 1971 Paris text in 1998 - US international trade agenda brought us on - in order to be part of NAFTA and WTO
•What if we broke our pattern and said no to WIPO treaties or adopted
a minimal approach to WIPO treaties?
-treaties started out as US agenda, but strong voices from developing countries and public interest groups led to a compromise
•anti-circumvention leads to new level of protection, elimination of fair dealing, chilling effect on R&D in computer research, development of 3rd party technologies, invades privacy
•there are other approaches: limiting to civil liability, could provide redress for rights holders abusing their monopoly and stopping permitted uses
•if Canada implements DMCA-style provisions, it's because policy makers choose to do so, because American interests play a dominant, if not always visible role.

Questions:
•note that WTO has three-step test. Treaties administered by trade lawyers not a court.
•there were studies as to whether fair use fit within international standards; US argues that fair use complies with 3-step test if interpreted by courts as it is. Fair dealing conforms more with international obligations. WTO panel decision did verify nation's ability to form its own exceptions. Some discouragement about fair use interpretation in US on market impact item.



Panel Three: Intellectual Property Ownership on Campus: Part One: The Current Context
Paul Jones, organizer of this conference, Professional Officer, CAUT: News from the Collective Bargaining Front
•the terms of ownership of IP on campus are set by common law, institutional policy, collective agreements
•collective agreements are legally enforceable through grievance arbitration, not civil courts
•Stats Canada study evaluates the status of ownership – by individual, employer, joint
•collective agreements waive Employer rights in IP
-but these rights are being chipped away
-patent rights
-copyright in the case of distance ed
•Fortier Report:
-recommended requiring commercialization of IP, assignment of IP to university in order to maximize benefits to Canada, recognizing commercialization in tenure
•AUCC seeks to triple IP commercialization by 2010
•Flaws in this idea:
-there is actually very little revenue from IP commercialization
-most academic work has no direct commercial application – so those that are out of luck
-IP imposes secrecy, stifling innovation
-this goes against goals of education
•problems with co-funding (getting a private partner for research)
•Academic staff should oppose commercialization


Paul Kniest, Policy & Research Officer, National Tertiary Education Union – Lessons from Australia – Controlling the IP created by university staff
www.nteu.org.au
•gave a primer of IP and copyright
•looked at the IP situation at various Australian universities and who owns IP there

Sam Trosow: Intellectual Property, Commercialization, and the Future of Academic Work
•IP primer
- IP does not protect ideas, must be fixed
-we are creating copyright works in our notes, but a verbatim transcript belongs to Sam
•the amount of protection involved in patents is not appropriate in a university institution
•review of section 13 of copyright regarding ownership by employer

Panel Four: Intellectual Property Ownership on Campus Part Two: Forms of Resistance
Paul Jones reading on behalf of Claire Polster: Alternatives to private ownership
•on why university involvement in commercialization and IP is bad
-it would make sense to prohibit the privatization of knowledge and requiring its placement in the public domain

Martin Phillipson: The Collective Bargaining Options
•the talk of open source and new models of IP very utopic and completely unrealistic
•collective agreements include items about university's control over IP and the university is not going to give that up. This is the reality of how it works - collective bargaining is about shoring up what you have.
-scientists want to commercialize through the university, some want to make money and more power to them.
•the goal of collective bargaining is about giving members autonomy over what they created - either ownership or input
•some specific advice about negotiating collective agreements
-about using general language
-about using a lawyer and not doing it yourself, dealing with specifics in side agreements, keeping language up to date to cover multimedia stuff for example specifically, keep in mind that staff and grad students might also have claims, as might funding agencies, scrutinizing reports of inventions

Day 3

Panel Five: Intellectual Property Ownership on Campus: Part Three: Alternatives in Practice
Andy Kaplan-Myrth: Building the Creative Commons
•primer on creative commons

Kathleen Shearer: The Open Access Movement
•Sherpa Romeo monitors publishers' self-archiving rules
•Canadian Institutional Repository Projects list at CARL - Canadian Assoc of Research Libraries
-U of T has one called T-Space
•Federal Research Public Access Act of 2006 - a bill tabled that would require all research published by 11 US funding agencies be made open access in 6 months of publication
-the UK RCUK has a policy called a Welcome Trust
-in Canada SSHRC endorsed open access in principle Oct 2004, but then they had consultations - but backtracked
•CIHR is consulting: Draft Policy on Access to CIHR-funded Research Outputs

David Bruce, Research Services, Queen's University: Just Trust Us: Moral Rights Waivers and Related Concerns in Federal Research Contracts
•explanation of moral rights: integrity, attribution,
-federal contracts sometimes require their waiver so that they can change the work or whatever
-PWGSC has a standard moral rights waiver
-most universities don't encourage researchers to waive moral rights
•for researchers, waiving moral rights creates problems
-results could be used to support opposite findings
-e.g. report on climate change in Harper's August 2005
-could lead to potential liability
-concerns about reputation - corporate reputation
•you can strike the clause, modify the clause (for example, to remove the researchers name in the case of substantial revisions), receive written assurances
•sometimes there is a delay stopping the researcher from publishing, so if government publishes info and you want to dispute its portrayal you can't right away
•researchers are coming under more pressure to waive moral rights
•government might want to ignore university concerns and rely more on commercial contractors, cutting universities out of the loop
•what is needed: a limited waiver for universities
-VPs Research have raised it at AUCC
-CAUT could also raise the issue

Questions:
•the Public Knowledge Project at UBC provides software to help people start their own open access journal

David Bollier: Closing Address: The Perils of Property Talk in the Academic Commons
•there is a myth that copyright encourages the creation of work, allows wealth to be created, that knowledge can't achieve its full value if it isn't propertized
-property talk shuts down broader conversations about how knowledge can be disseminated and circulated
-academia has to begin to take on some of this conversation, to develop a discourse
-we should develop a discourse of the commons to defend the non-market ways that academia generates knowledge
-some people have described academia as a "gift-economy"
•Bollier's book: Brand Name Bullies: The Quest to Own and Control Culture
-demystifies IP through stories
•commercial works are privileged over academic, civic, protest etc works
•academics are committed to a set of principles to do with advancing the public good and disseminating their work, building on past work; therefore property speak is a bad fit for what happens in the academic world
•Bayh-Dole Act allowed universities to patent federally funded research
-there has been a windfall but only shared by a dozen of the top universities
-there is a waning of the sense of the university as s public institution
-returns tend to go to drug companies - examples: Prozac, some HIV/AIDS drugs etc
-citizens therefore pay twice as research funding and then as consumers
-bioprospecting/biopiracy
-some of this goes back to the US Supreme Ct allowing the patenting of life forms
•the ethic around patenting in the '50s was very different - the inventor of the polio vaccine was asked who owned the patent on it and he said "the public, I guess" and asked, in response, "Who owns the patent on the sun?"
•now you can patent software; what would have happened if that had been true in the '50s and '60s? Bollier argues that the computer revolution wouldn't have happened.
•there are so many patent families for the malaria antigen, making it hard to clear the rights to do research in that area
•you can't own clothing design - this has led to a robust industry
•the implications of this for academia are clear
•there is little recognition of the importance of the commons
-it is therefore imperative for universities to engage in these controversies
-by getting beyond the mental categories of property-speak
-it needs a stronger way to assert the ethic of public sharing
-to do that we need a fresh different discourse to outmaneuver property-speak
-to show how academic work can outperform the market model
-Benkler (The Wealth of Networks) argues knowledge is more effectively pursued in an open environment than in a market
-common-speak is important for that
-that can refer to open-access stuff, creative commons, etc.
-Bollier cited a number of examples of these models in academia
•Bollier puts out a report called "the commons rising" and has a web site: onthecommons.org
•How can we establish a set of norms that goes with the principles on which academia works? -this commons-speak and these commons models

Questions:
Susan Crean brings up two positive examples: 1) Aveda's 'indigenous' line of products; Aveda eventually, in response to criticism, de-patented the product. 2) Starbucks also failed in challenging Haida-bucks coffee shop
3) Film: "Guarding the family silver" is about a woman whose name was trademarked by someone else
Bollier: there is a distinction between the public domain and the commons - with a commons there are certain limitations that can prevent free-riders or inappropriate appropriation
Question: Google is undertaking a massive public consultation on what should be digitized next
Bollier: Might Google become the next Microsoft, taking control of what now is in the public domain?
Q: What should we do about that?
B: think, read, study - it's a bit too early to know what to do
Q: how can we more actively recognize the value of the public domain?
B: the commons is a bit better concept for recognizing that because it's more managed, more situated

Free & Legal

A very interesting development: Universal Music is supporting a free download service called SpiralFrog. The service will work on an advertising model rather than a pay-per-download model. Read about it in the Financial Times: Universal backs free music rival to iTunes

Canadian Content and Emerging Canadian Artists

The CRTC has started hearings on its radio policy review. The Canadian Association of Broadcasters'(CAB) has made a submission that is getting a lot of media attention - for good reason.

The CAB notes that things have changed in radio. Radio stations today compete with many forms of new media, while continuing to take on public service roles such as education, community fundraising, and public alerting. Commercial radio now competes not only with new sources of commercial content, but also with consumer-generated content and "illegal downloading of music" (para 305). Not only does commercial radio continue to carry the burdens of traditional broadcasting, it now also has to pay the increasing expenditures that the industry must pay for copyright(para 101). While the industry is profitable, the CAB argues that the recent increase in profits is part of a cyclical trend, likely to come to a head in the near future.

Things have changed in the music world too. The report argues that musicians can now create their own distribution networks, circumventing labels and traditional radio, whereas costs in traditional distribution have gone up and retail stores are now very cautious about what they put on their shelves (para 306-309). This should lead, they argue, to a refocusing of traditional radio's role on the promotion of artists and music, rather than simply as a promoter of record sales. Radio should promote the "whole artist economy" (para 313), and should include the promotion of Canadian artists even where that promotion is not linked to record sales.

There are also some difficulties that radio broadcasters have noted with Canadian content regulations. So, they have some suggestions. Some of the difficulties radio stations encounter are the overplay of certain artists in attempts to meet Canadian content requirements. Therefore, they ask that emerging Canadian artists' play count for extra points towards meeting Canadian content requirements. Such a plan would lead to less overall Canadian content, but more emerging Canadian artists on the air, and a more diverse selection of Canadian artists. This plan would give radio stations incentive to enter the risky market of emerging music. According to this proposal, "A Canadian artist would be considered an Emerging Canadian Artist up until 12 months from the date they reach the Top 40 in spins on BDS or Mediabase all format charts or become gold certified for the first time."

My opinion: The CAB has laid out a very reasoned argument as to why radio should promote emerging artists as artists, rather than remaining focussed on established artists and their record sales. To me, it is an argument that makes sense in itself; I am not convinced that the additional incentive of extra credit for emerging artists in the CanCon system is necessary.

Sony laptop battery mal-ware

I purchased a generic battery for my Sony laptop this week. However, when I installed it in my computer it would not work. An error message popped up saying my computer was going to sleep and that the battery may be incompatible.

Customer support pointed me at the following web site: http://forum.notebookreview.com/showthread.php?t=20440, which points out that Sony laptops are running a little software program called ISBMgr.exe that generates this error when you insert a generic battery. It appears to be the only purpose of the software, and if you disable the software the genereic battery works fine.

I paid about $100 for my battery, where a Sony brand equivalent would have cost $370.

Sony is really exploiting its customers here.

Sheety Sheet Music

A few weeks ago I made a comment to a friend that I'd like to be able to download sheet music for $1/song, just like on iTunes or puretracks. He said those types of services exist, although it's not $1/song; it's more like $5/song.
So I tried the two sites he pointed me at:

musicnotes.com
sheetmusicdirect.com

At musicnotes.com you can download either individual songs (about $5 each) or a whole album/book (about $30 each).
At sheetmusicdirect you can download only individual songs (about $4 each.
Sheetmusic direct seems to have the added capability of transposing the music into your key before you download it, but their software crashed my browser and I wasn't able to use their site to buy music in the end.

The music I purchased from musicnotes.com (Coldplay's Parachutes album)comes with a statement at the bottom of every page of music: "Authorized for use by Sara Bannerman." How ridiculous. I think this is a scare-tactic, because I didn't see anything in the way of a license saying that only I, the purchaser, was allowed to play the music.

Anyway, apparently there is now a war starting to get rid of unauthorized sites that offer sheet music.

Publishers Exert Pressure on Rogue Sheet Music Sites

What bothers me about this is that the quality of the sheet music I downloaded - in terms of musical correctness and musical arrangement - sucks.

I know that the market for sheet music is difficult. When the main outlets for legitimate sheet music were dusty stores in malls where it was difficult to find anything you wanted and where most of the music available was 100 years old, I could understand that problem. But today technology makes a really good, competetive and profitable market for sheet music possible.

I would like to see an open market on sheet music - a web site where all comers could write a transcription of a song and upload it onto an authorized web site for sale. A percentage of the proceeds could go to the person with the rights to the song, and the rest to the transcriber. People could post comments/reviews about which is the best arrangement etc.. Then, when I went to buy a transcription of a song, I'd have several difficulty levels to choose from and several arrangements. I might find that a particular transcriber was my favourite, and look for other transcriptions by that person. And really good transcribers would be rewarded. That would be much better than the current system, which generally offers only one version (seemingly a computer-generated transcription of something someone has churned out in 3 minutes on a MIDI-keyboard) of a song - often the same version across services (on both musicnotes and sheetmusicdirect). It would create a whole new market, competition, and tons of innovative renditions of songs for people to play - at the right difficulty level, which would be good for music education too.

That is the kind of thing that copyright is supposed to be for - the encouragement and dissemination of high-quality products, not for boxing up the market so that extremely low-cost and low-quality products are the only ones available.

Copyright poll

Wallace McLean takes note of a recent recording industry poll, which asked some pretty leading questions. He suggests some questions of his own:


"Do you agree that Canadian law should be amended so as to allow record companies to sue your teenage children for $150,000 in damages for each song they download onto your home computer?"

Read the rest on the copyrightwatch blog.

And watch for new copyright legislation; it could contain just such little goodies.

France and iTunes

The French National Assembly has voted in favour of legislation that will require companies like itunes to open their standards, allowing other music players to play itunes music, and allowing other providers to make music available in ipod format.

The Financial Times published an editorial today condemning the legislation. FT argues that it is the business of market competition, not government, to decide whether open standards are used - that, if consumers want open standards, they will buy from companies that have open standards.

For consumers, the issue of open standards is only one of a number of factors considered in purchasing decisions. Consumers cannot be relied upon to put their purchasing power behind open standards and competition; that is how monopolies happen. Consumers will likely prefer open standards and competition, but that is no guarantee that companies offering open standards will be able to offer a product that is, in the balance of all factors consumers consider, the most competetive.

Governments are able to make longer-term structural decisions about markets and competition that are not considered by consumers visiting itunes to buy the latest hit.

One of the likely results of open standards in content provision is more competition. One of the effects of competition in content provision could be lower prices for content. Lower prices could lead to consumers placing a lower value on content. The Financial Times itself is a content provider. Just an observation.

Notes: Digital Copyright Reform in Canada: an International Perspective

Here are my notes from the "Digital Copyright Reform in Canada: an International Perspective" colloquium at the University of Toronto Centre for Innovation Law and Policy, Friday March 3 2006.

•Sunny Handa, co-chair gave intro
-there are socio-economic forces influencing copyright law; international factors are the most important (though maybe not in the USA)
-history / Berne convention
-after 1971 it became almost impossible to update copyright internationally - paralysis set in as more rights were added in and as copyright became more and more important
-US was late getting on board

Michael Einhorn - Consultant with Consor Intellectual Assets Management
•is aware of an opposition to copyright in the US and Canada
•let's get the facts straight: the big music companies are not American transnationals; they are owned by other countries or integrated multinationals
-record labels don't own radio stations
-the record labels would love to get to consumers outside of radio stations
•retailing has been very competitive - Wal-Marts etc put record stores out of business
•the 4 distributors own more than 40 labels - see RIAA web site - and these distribute over 900 other labels
•the market will sort stuff out
•the old rental services are gone - the market didn't like it when consumers lost their music when the subscription runs out, so those types of services failed
-the market will punish companies who try to lock stuff up too much
•there is also streaming – those services are working ok, and are now being combined with downloading
•they don't make much money on selling the music; they really want to sell you something else: ipods, walkmans, other stuff on Wal-Mart's web site, yahoo's search engine results/advertising
•can there be a mutually beneficial confluence of advertising and entertainment here?
•Einhorn worked in US Justice Dept - competition department
•if you let companies go without paying it's favouring them against others who die
•example of canals and railways - there were a lot of incentives for intermediaries to build hotels tunnels etc; for example:
-electronic recommendation services
-weedshare - here you get music, put it on your web site etc; if your friends buy it you get a cut
-built-in ads in the audio file
•none of this will work if users can do whatever they want with the files

Duncan MacKay, head of Pollara market research
•Pollara has been tracking use of music in Canada for CRIA
•research discussed here is based in 2 telephone surveys , one in 2005 and another in 2006
•more people use "illegal" services
•more files are downloaded when they go to "illegal" sites than legal ones
•paid stuff is used more by older age groups
-the group 12-24 does most of the buying and also most of the illegal downloading
•most is top 40
•frequency has stayed about the same or increased from a year ago
•the main reason people are buying less is that they are downloading
•average 170 files on mp3 player; 500 on computer
•1/3 is own cds ripped, 1/3 from illegal sites

Douglas Hyatt, Rotman School of Management
•worked advancing copyright tariffs before copyright board as an economist
•worked in Ukraine during transition to market based economy in the '90s
-there was no private property, so when jobs were lost in a region there was no way that people could sell their property and move to a new place
•blank media levy legitimizes stealing - this is one school of thought
-Hyatt would like to hear Einhorn talk about that
•DOJ in US will look at record companies for price fixing - this is in the news now - almost everything is 99cents - how can you tell what is price-fixing
-would like to hear Einhorn on that too
•the copyright board is pricing rights
-it hurts the music industry not to be able to price their own rights

Einhorn response:
•the last look into price fixing came up with nothing
•there was a real finding on advertised pricing - the companies would help pay music stores for advertising, but there was a minimum price that would be advertised
-this was settled
•DRM allows market rules to be encoded in the files; levy requires a government agency to do allocation

Sunny Handa starts off question period

MacKay of Polaris:
-mentions he is also on the Puretracks board
-responds that 99 cents was the balance of supply and demand that could sustain the business

Dr. Mihaly Fiscor, University of Budapest Hungary
•copyright has become less like a dermatology unit (come back in 8 months) and more like an emergency unit with more urgent emergencies
•copyright has bad PR
•Berne was updated about every 20 years
•Berne can only be ratified unanimously
•Fiscor worked for WIPO as assistant director general?
•TRIPS was there in 1992 but not beiing worked on; after that the Internet exploded
•There were 3 stages of debate
1) John Perry Barlow - copyright is dead
-Internet is another world of complete freedom
-netiquette will be enough
-even if you want to you can't regulate the Internet
2) copyright should contine
3) 1996: stage of synthesis - changes, but no fundamental transformation
•substantively TRIPS didn't do too much - just term extension, clarificationon databases etc
•in the process of applying the principles to the digital world we came up with the making available right
•you need to prevent manufacture, distribution etc - not just the circimvention itself
-protection is needed not just for copying but also for access
-you need some kind of balance and something to monitor the situation

Barry Sookman, McCarthy Tétrault
•Bill C-60 was completely inadequate to the WIPO treaties
•What is the resistance in Canada?
-they are philosophical, fears of digital lockup, changes to the copyright balance, misinformation about DMCA, fear of para-copyright, privacy concerns
•paints a caricature of the user-rights side and argues that these positions are unreasonable
•C-60 was a disaster - standards of protection were too low

Fiscor to Sookman when Sookman sat down after his presentation, enthusiastically: "great"

Alain Strowal
on the EU InfoSoc Directive:
-prohibits circumvention with knowledge
-prohibits manufacture, sale etc with primary purpose circumvention
-only "effective" TPMs are protected
-fair mechanism to ensure accommodation of exceptions
•C-60 did not prohibit manufacture, sale etc
-there was also no mechanism to ensure accommodation of exceptions
•the exceptions to protection of TPMs are not in the directive but are in recital 48 (research in crypto) and recital 50 (reverse engineering and study)
•also there can be voluntary measures to ensure exceptions can be met (making hard copy available etc), and state encouragement of voluntary measures
•exceptions are in article 5, 2
•how can you combine the levy system with the TPM system? -you can't get paid both ways.
-there should be a phasing-out of levies

Marybeth Peters
•US copyright is based in constitution and legislation
-she has always been a little bit jealous of Europe who see copyright as a natural right
-but then she sees "our system as better"
•has been head 11 years, but worked there 40 years
•copyright office is in legislative branch rather than executive - so she can make statements without clearing it with anyone
•There was no debate in the US on implementing the WIPO treaties
-it was all about ensuring copyright industries could continue in online environment
•it was seen as necessary to cover the manufacture etc
•there was a blank circumvention of access controls item
-this is the one that caused the uproar
-so a compromise was reached
-there was a ban but there are also exceptions for encryption research, libraries etc
-they came up with the 'fail-safe' exception - a rule-making every 3 years - you can petition copyright office for a new exception for 3 years
•Senator Hatch very involved
•intermediary points were made up by industry getting together
•she is now for the system - it keeps copyright owners honest - if they keep stuff too locked up there will be an exception created

Daniel Gervais
•someone looking for policy justifications for copyright, looking back through policy documents, would find a mishmash
•the courts are taking it upon themselves to profess on copyright policy
-we should decide whether that is what we want, and not hide behind the courts
•EFF now says the burden of proof is too great
•copyright was designed to promote contractual relations among professionals, and to prevent professional piracy
-here, we have users and "broadcasters" who are not professional
•users don't seem themselves as stealing - they see creation of social networks
•there was a trend towards continuously increasing rights for patents
-this trend turned when it was countered with other rights – the right to health of patients etc.
-the prices never recovered
•watch that the same thing doesn't happen with copyright
-a clash with privacy rights
•we can't get rid of copyright
-we also can't treat end users like other professionals - there should be some allowance for private uses
-the basic question is which uses should be paid for and by who
•Gervais is in favour of licensing and the 3-step test
•would like to see a legal p2p service - licensed music and a paid service

Oda's comments on copyright reform

See today's Globe & Mail article, in which the new Heritage Minister, Bev Oda, comments on copyright reform.

The article says:
As a veteran educator -- Oda spent six years teaching theatre arts and art to children in Mississauga, Ont. -- she also has some caveats about the last government's proposed copyright legislation. "Last session, our party stood up and said we'd like to look at digital access for learning materials. So we're still looking at copyright legislation overall." Those who had hoped for the new government to automatically push through the Liberals' bill should not hold their breath.

On June 29 2005 Bev Oda, as Heritage Critic, made the following comment which I think adds light to her quote in the G&M article:

"Ms. Bev Oda (Durham, CPC): Mr. Speaker, Canada has a world class Internet infrastructure in our schools but the heritage minister's new copyright legislation makes it restrictive, onerous and possibly more costly for schools, teachers and students to download on-line educational material.
This legislation will make routine classroom activities illegal. Why do the government and the minister want to make our students and teachers pay more for materials they are using now or make them criminals under a new copyright law?"

Woah Sweden!

A new political party has been born in Sweden: The Pirate Party, which aims to abolish copyright and patent law:

The Guardian: Pirates pursue a political point

Fee for service?

Debates are underway on Capitol Hill about whether telecom companies who provide Internet service should be allowed to charge extra fees to internet companies to guarantee specific levels of service (today's Financial Times: Telecoms and internet groups clash on charges, p. 6).

Opponents to the fees say that telecoms will use the fees to hinder access to certain Internet services such as Voice-Over-IP services that compete with their own offerings - a claim the telecoms deny.

Opponents also say that these types of fees will make it more difficult for newer companies to reach an audience.

I know that I want an Internet on which it is as easy as possible to access all the little start-ups - not one where start-ups have to pay to reach me. And I don't want to pay extra to be able to reach certain services like VoIP. I want an Internet that allows me to access any service I want - I don't want to have to pay extra to access this one or that one.

A good article on this topic can be found on the BBC web site.

New ministers of Heritage and Industry

The main departments involved with copyright reform are Industry and Heritage.
Wikipedia is quick on the uptake with an article on Bev Oda, the new Conservative Heritage minister. She has a history in broadcasting, was once the commissioner of the CRTC, and has been the Heritage critic.

Maxime Bernier, the new Industry minister, is a lawyer, businessman, and member of the The Montreal Economic Institute.
Bernier supports the idea of a flat-tax instead of taxes tiered for income.

A Proposal from Chile

Chile has submitted a proposal to the World Intellectual Property Organization (WIPO) with two very important and challenging suggestions:

1) WIPO should protect the public domain, and should focus on protecting knowledge, rather than private intellectual property rights.

2) WIPO should do a study that would look at the ideal level of intellectual property protection country-by-country. The study would look particularly at each country's level of development, and the economic and social effects of IP in each country's situation. It might suggest limitations to or exceptions from intellectual property protection if that was seen to be more advantageous to the country's development.

In the past, WIPO has been more focused on expanding intellectual property rights rather than limiting them. In WIPO's view, the way to protect knowledge was to encourage its publication and commercialization by granting intellectual property rights. To an extent, to protect private intelectual property rights wasto protect knowledge.

The problem is that, now, most IP rights are owned by the US, and much of the unprotected knowledge floating around in the public domain for free use by anyone - especially in developing countries - is at risk of being snatched up by this expanding rights regime and by Americans who want to claim and commercialize it. Plus, new technologies have brought new ways of thinking about the dissemination of knowledge - publication and commercialization is no longer seen as the primary way of protecting knowledge. Sometimes IP-rights lock up knowledge. Knowledge in the public domian is often much more accessible than it once was, thanks to technology and communications.

A country-by-country study could look at the social benefits of having knowledge available in the public domain and at the use of that knowledge in a country's own development - and at the effects of having that knowledge commercialized by private owners. With both sides being considered, the study would lead to a more balanced and realistic view of the role of intellectual property in well-being today.

Chile's report.

The end of television as we know it

IBM has released a report called "The end of television as we know it". The report worries that, as vieweship for traditional television declines, advertizing revenue for traditional broadcasters will also decline. As content is released directly to audiences online, broadcasters will no longer be the middle-men between (American) content producers and (Canadian) audiences. Canadian broadcasters would therefore no longer be able to sell Canadian television ads inserted over American programming. This would, the report says, threaten the pool of funds available for creating Canadian content and local news.

The Canadian Association of Broadcasters, in response to the report, calls for regulation of new media and continuation of Canadian content requirements.

The European Commission has warned member states against exempting traditional broadcasters from regulation while they set up new media shops. Apparently Deutsche Telekom in Germany got an exemption while it set up a high-speed Internet network. (see today's Financial Times)

Does the decline of the traditional broadcast model really mean the end of local news? How much can other forms of communication networks compensate for the end of local news in smaller cities?

Would this really be the end of television commercials? If so, I think it's good news.

If traditional broadcasters are encouraged to develop online media, what kinds of opportunities will be lost while they prop up old profitable business models at the same time?

IBM Report Summary: "The end of television as we know it": http://www-1.ibm.com/services/us/index.wss/ibvstudy/imc/a1023172?cntxt=a1005266
Feb 9 2006: I have received a hardcopy of the report from IBM. If anybody wants to borrow it just let me know. It's 24 pages.

Today's G&M article on the IBM report: http://www.theglobeandmail.com/servlet/story/RTGAM.20060127.wxrtv27/BNStory/Business/