Tuesday, June 16, 2015

WIPO to discuss library and archive copyright provisions

Some interesting proposals will soon be under discussion at the World Intellectual Property Organization that could free libraries, archives, educational and research institutions, and people with disabilities from copyright provisions that hamper their ability to make use of copyright works.  Read my full post about the upcoming meeting on WIPOMonitor.org here.

Tuesday, June 9, 2015

Canadian copyright reform for people with print-disabilities

Yesterday Industry Minister Candice Bergen introduced Bill C-65, the Support for Canadians with Print Disabilities Act  for first reading in Canadian Parliament.  The Act will allow Canada to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

Among other things, the bill would allow non-profit organizations acting for the benefit of persons with a print disability to create accessible-format works and provide those works (or access to those works) to people with print disabilities and to non-profit organizations acting for their benefit outside of Canada (s. 32.01 (1)) on payment of royalties set by regulation (s. 32.01 (4)).  It would also allow the circumvention of TPMs for these purposes (s. 41.16).  The Act sets out reporting requirements (32.01(6)) and requirements that contracts be put in place with outside organizations regarding the use of the works (32.01(7)(a)).

This is a welcome move.  It would facilitate access to books and other copyright materials around the world, allowing Canadian organizations to work with their counterparts in other countries to make works accessible.   It would also make Canada the first G7 country to ratify the Marrakesh Treaty.

Monday, June 8, 2015

TRC could do more for Aboriginal People's media

The Truth and Reconciliation Commission of Canada (TRC), commissioned to investigate a century of abuse of Aboriginal peoples at Canadian Indian Residential Schools, last week released its findings and calls to action.  Among its 94 calls to action were several dealing with "media and reconciliation", as well as calls related to "educating journalists for reconciliation" (pp. 341-345). While its recommendations are helpful, it could have done more.

The Commission rightly points to the deficiencies of Canadian broadcasting policy, as set by the Canadian Broadcasting Act, which requires the Canadian broadcasting system to reflect "the special place of aboriginal peoples within [Canadian] society" (s. 3.1.d.iii).  However, the Act requires only that programming reflect Aboriginal culture "as resources become available for the purpose" (s. 3.1.o). Furthermore, while the Canadian broadcasting system is required to broadcast in English and French in equivalent quality, the Act sets out no requirement to broadcast in Aboriginal languages.

The TRC discusses the role of just two media outlets in furthering reconciliation: the CBC and the Aboriginal Peoples Television Network (APTN)[1].  It notes that budget cuts have reduced the CBC's "capacity to provide Aboriginal programming".  It therefore calls for greater funding for the CBC.  It also notes that the APTN "is well positioned to provide media leadership to support the reconciliation process." It therefore calls on APTN to continue developing media initiatives to "educate the Canadian public, and connect Aboriginal and non-Aboriginal Canadians."

Colby Nash has criticized the TRC for recommending increased funding to the CBC, whose Aboriginal programming has been minimal, rather than recommending increased funding of the APTN.  The CBC, after all, as MacLennan has noted[2], has its own history of cultural imperialism. The APTN, with increased funding he notes, could make many contributions:
APTN could expand into aboriginal-language Web offerings; it could develop totally separate content streams for major aboriginal language groups. It could get into community radio. It could fund scholarship, translations, poetry. You can think of a hundred new ideas without breaking a sweat.
Other entities could also play a role.  Private broadcasters, which receive only a passing mention in the summary of findings, obviously play a significant role in media representations of Aboriginal peoples.  As Fleras writes, "mainstream media provide a key cross over point for intercultural understanding and exchanges" (169).  At the same time, changing mainstream media is a difficult task:
the very changes that minorities want of newsmedia (responsible coverage of minority interests, less sensationalism, more context, toned-down language, and less stereotyping) are precisely the newsnorms that media rely on to sell copy or capture eyeballs.  Challenging the conventional news paradigm will prove a difficult sell. (Fleras, 170)
The CRTC could also play a role; while it recognized APTN as a national network in 1999, its Native Broadcasting Policy has not been reviewed since 1990.

Perhaps most importantly, while the Commission notes that it received submissions calling for revision of the Broadcasting Act to correct the inadequacy with which the Act addresses Aboriginal media, the Commission fails to call for such revision.  The Broadcasting Act  has not been revised since 1991.

The TRC should go further to discuss the role of mainstream media in reconciliation, to recommend a review of the CRTC's Native Broadcasting Policy, and to recommend revision of the Broadcasting Act to better fund, expand, and prioritize APTN and other Aboriginal media endeavors.

[1] See Lorna Roth's excellent book on the history of the APTN.
[2] MacLennan, Anne F. "Cultural imperialism of the North? The expansion of the CBC Northern Service and community radio." Radio Journal: International Studies in Broadcast & Audio Media 9.1 (2011): 63-81.

Tuesday, June 2, 2015

Who should own big data?

Big data has a lot to offer, from curing disease to fostering economic development to fostering transparency.  At the same time, from government mass surveillance to data leaks, the misuses of big data seem as pervasive as its uses.

Who owns big data?  What rights do--and should--its owners have over what is done with it? Two different answers to this question have been posed.  The first would allow free use of big data for non-profit scientific research.  The second would release IP control of big data for commercial research also.

As noted in a recent paper by Handke, Guibault and Vallbé, the answer to the question of what IP rights subsist in big data varies by country.  Research using mined data may, in some countries, be constrained by copyright and other IP laws, while in others (including Canada and the United States), copyright ownership in data may not stand in the way of researchers seeking to data mine.

Two international initiatives: The Hague Declaration on Knowledge Discovery in the Digital Age and the World Intellectual Property Organization's proceedings toward the creation of a new international instrument on limitations and exceptions for educational, teaching and research institutions and for persons with other disabilities, seek to ensure internationally that copyright does not stand in the way of the ability to mine data for research.

At WIPO, the African Group of countries has proposed that non-profit scientific research be exempted from copyright.  They propose that:
The reproduction and reuse [...] of any lawfully obtained copyrighted work for purposes of not-for-profit scientific research, including storage, archiving, linking, data mining procedures, data manipulation, and virtual scientific experiments subject to attribution of the sources used to the extent reasonably feasible
should not constitute copyright infringement (p. 33; emphasis added).

While the WIPO proposal focuses on non-profit scientific research, a second initiative--the Hague Declaration--would also permit commercial data mining.  Further, it encourages research organizations, universities, and businesses; and those using Creative Commons licenses, to actively make data available publicly available for research.

Corporate owners of big data might be alarmed at the latter declaration.  Should individuals be alarmed as well?

Should we be concerned about giving up IP ownership of personal data?  

Scholar Neil Lawrence has argued that people should have ownership of their data:
There are opportunities and risks with the accumulation of data, just as there are for the accumulation of capital. However, one thing seems clear: we need to increase the power of the people. Banks pay interest; perhaps we should be paid directly for the use of our personal data. We need to be made aware of the value of our data and be given rights to control who accesses it. We need to form a data-democracy: data governance for the people, by the people and with the people’s consent.
Whether this ownership does or should take the form of intellectual property, or some other form, is a question worth considering.[1]  Is a person not the author of their own personal data?

While the two international initiatives outlined  above are likely intended to address corporate ownership of big data, personal ownership of the personal data that makes up big data should also be considered.  

It seems clear that, in an age where privacy laws fall short in constraining mass surveillance and protecting privacy online, a stronger medicine may be required.  As the ethics surrounding big data continues to evolve, throwing away ownership of our data in both commercial and non-commercial contexts may be a precipitous move.  Some form of personal ownership of personal data--especially ownership that would prevent unauthorized commercial use of data--could be a useful tool in an increasingly pitted battle over data ownership and control.

[1]. Scholars have considered this question from various angles. Pamela Samuelson has argued that, while an intellectual property approach to personal data may not be appropriate, an approach based on moral rights may be worth exploring. The idea of ownership of personal data, and the problems associated with such ownership, continue to be explored.

Tuesday, April 28, 2015

Canada joins Marrakesh Treaty

I have long called on the Canadian government to join the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. yesterday, the Toronto Star reports that Industry Minister James Moore announced Canada's accession.  This is great news.

Eight countries have ratified or acceded to the Marrakesh Treaty, which will enter into force when that number reaches 20.  Canada's accession brings that number to 9.  Canada is the first G7 country to implement the treaty.

Wednesday, April 15, 2015

Canada's Copyright Mystique

Two recent law review articles, both responding to the July 2012 release of the Supreme Court of Canada's "pentalogy" of decisions on copyright, take somewhat opposite views of the relationship of the Court's decision to Canadian copyright history.

Professor Ysolde Gendreau of Université de Montréal's law school argues[1] that Canadian copyright law, leading up to the Court's decision, lacked a statement of a broad purpose or philosophy of Canadian copyright.  There was, for example, no statement in the preamble to the Canadian Copyright Act outlining the act's overall purpose.  It also lacked an "historical mystique" that would lend an historical purpose to Canadian copyright, the way that, for example, the storied history of the French authors' rights movement lends understanding to the interpretation of French copyright today.  Given this absence, the Court strode into the void and fashioned for Canadians a purpose that placed users' rights on a similar level with authors' rights in Canadian copyright law--a step that Gendreau believes has "no textual foundation."

Professor Myra Tawfik of the University of Windsor's law school argues[2], on the other hand, that the Court, rather than taking a wrong turn in the absence of clear directional purpose, "demonstrates  a depth of understanding of, and a confidence in, Canada's own particular copyright story"--a story that is very different from those of countries like France, the US, or the UK.  Tawfik argues that the Court now finds itself not in a relative void, but rather in the midst of a fairly developed area of Canadian law: "Canadian copyright law is sufficiently well developed and internally coherent to stand on its own merits."

Both authors note that the literature on the "historical mystique" of Canadian copyright is beginning to appear; they cite my book, The Struggle for Canadian Copyright, Eli McLaren's Dominion and Agency, and Pierre-Emmanuel Moyse's "The Colonies Strike Back" chapter as offering some of the history of Canadian copyright.

In my view, Professor Tawfik's view is correct. The Court's view of the purpose of Canadian copyright law, which places users' rights on a similar footing to those of authors, reflects longstanding concerns in Canadian copyright history with the accessibility of books, their affordability, and also with developing Canadian creative industries and encouraging Canadian creativity.  The developing range of literature on Canadian copyright history reflects this.

1. Gendreau, Ysolde. "Recent Canadian Development: Fair Dealing: Canada Holds to its Position." J. Copyright Soc'y 60 (2013): 673-673.

2. Tawfik, Myra J. "The Supreme Court of Canada and the" Fair Dealing Trilogy": Elaborating a Doctrine of User Rights under Canadian Copyright Law." Alberta L. Rev. 51 (2013): 191-201.