World Fair Use Day

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

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?

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

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

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

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

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

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

The Great Un-Debate

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

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

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

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

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

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

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

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:

1. requiring internet audio providers to geo-block programming that doesn't meet CanCon requirements.
   
2. 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

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

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.