Sunday, August 31, 2014

“Blame Canada” for the Copyright Reform Impetus in EU?

On July 2, 2014 Mme Neelie Kroes who holds the important position of Vice-President of the European Commission (“EC”) responsible for the Digital Agenda, gave an important speech on copyright reform in the EU entitled “Our single market is crying out for copyright reform” in Amsterdam. This was at the Information Influx International Conference at Institute for Information Law, University of Amsterdam. She said many good things in her short speech, such as:

When uncertainty prevents people remixing or creating their own content, how does that boost creativity?
When teachers are afraid to share teaching materials online, how does that help our society?
When a European Video-on-Demand provider tries to expand to new markets, but gives up because clearing copyright is so catastrophically cumbersome: how does that benefit our economy?
When consumers want to buy films or TV shows online but find they are geo-blocked: how does that benefit the fight against piracy? How does it benefit the artists whose works they could be watching?
When lovers of old films have to physically fly to a different country to see them, even if they're no longer in commercial circulation, how does that support European culture?
When museums have to take out insurance specifically against the risk of copyright lawsuits, because it's too complex and costly to figure out – how does that help promote European heritage?
When you can't sing happy birthday, or post a picture of the Atomium, how is that fair or reasonable, how is that something you can explain to ordinary citizens?
When European scientists have to abandon text or data mining because they can't afford the legal fees – how does that help innovation and scientific progress? And by the way that restriction is costing our economy tens of billions of euros.
I see no real winners in any of those cases. Creators lose out; innovators lose out; users lose out; our economy loses out. The system serves no-one. Solve those problems and I see only winners. We just have to jump over our own shadow.
Technology moves faster than the law can, particularly in the EU.

She also went on to say that “Things need to change in Europe and they need to change right now. It's obvious, as other parts of the world have already seen” and she specifically mentions Canada, along with Japan, as examples of countries where copyright reform has recently taken place.

She went on to add that: 

In none of those places has the sky fallen in. All of those places are now innovating, creating, progressing, while the EU lumbers by with an ageing system for an analogue age.

Of course, certain collectives do not take kindly to progress and innovation when it comes to copyright legislation, especially when it involves fair dealing and other copyright exceptions, which the Supreme Court of Canada considers to be “users’ rights”.

So, it’s not surprising that IFRRO – the International Federation of Reproduction Rights Organisations, of which Canada’s Access Copyright is a member, has responded with a “blame Canada” letter full of questionable information and devoid of any causal analysis suggesting that recent developments in Canada have had a very negative effect on educational publishing in Canada. Here is IFRO’s letter, which is clearly based upon now familiar refrains composed in Canada and thoroughly debunked by Prof. Ariel Katz, earlier this summer here, here, here and here.

And, course, there not a word about the savings in cost to taxpayers and students, and the expansion, liberation and increased access to material that Access Copyright has done its utmost to restrict and to charge for. Access Copyright has taken its aggressive positions regardless of whether the material is within its repertoire by any reasonable legal notion of chain of title or regardless of whether Access Copyright has any clear legal basis for any claim to the rights asserted (such as a linking right) – not to mention what Parliament and the Supreme Court of Canada have confirmed about fair dealing. I should point out that the factum that Prof. Ariel Katz and I prepared in one of the Supreme Court cases – the Province of Alberta case - played an apparently significant role in the current state of Canadian copyright law concerning fair dealing.

Perhaps IFRRO may want to think twice in the future before taking such blatantly one-sided and unsubstantiated positions in such important fora as the European Commission.

So, is the sky falling in Canada or is this all much ado about nothing? The irony of how Access Copyright has dealt inconsistently with these types of arguments has not been lost. Michael Geist pointed this out back in April. On the one hand, Access Copyright argues (incorrectly) at the Copyright Board that the 2012 amendment adding “education” merely “codified” the Supreme Court of Canada cases that, in its view, had a very narrow and limited impact anyway (see here page 13 ff.). On the other hand, it makes virtually the same nearly apocalyptic arguments through IFFRO that it also made unsuccessfully to Parliament in a futile attempt to block inclusion of the word “education” in s. 29 of the Copyright Act. It also “supports” (here at page 29) the seriously misstated and misleading analysis of Canada law by the Association of Canadian Publishers, which I have long ago discussed in some detail here. More consistency and credibility might be helpful to the creator affiliates of Access Copyright, of whom I confess to being one.

HT to Cedric Manara for bringing this EU development to my attention.


Saturday, August 16, 2014

More Fuss About a Red Bus?

Here's another "red bus" picture to possibly fuss about. This one is on the cover of a CD collection from super respectable record label Deutsche Grammophon.

More about "red bus" copyright issues can be found here...

BTW, there are some very identifiable individuals in this picture. Though I wonder how old it may be, having regard to the automobiles, hair styles, fashion, etc. Interesting...
I stumbled across this collection at my fav CD store, one of the few remaining oases of good selection and good service and real bricks and mortar, not to mention free parking...namely CD Warehouse in Ottawa.  

Saturday, August 09, 2014

How to Minimize Music and Maximize Profits – Do Moral Rights Matter?

A Calgary radio station, 90.3AMP,  has been playing condensed versions of popular songs. The station is using a third party named Sparknet to shorten the songs.  Here and here and here’s some coverage.

Just to think – maybe a 90 second or two minute version of the Beatles' five minute “A Day in the Life” or Arlo Guthrie’s  23 minute “Alice’s Restaurant”? After all, we already know the “tune” and how the stories end. Who needs boring choruses anyway?

One would be surprised if actual performers or composers (musicians) are involved in this process. They are those sometimes pesky people who support the huge corporate music industry and occasionally show a desire to be treated with respect and their fair share of economic reward. A few of them occasionally succeed in these  mostly unrealized aspirations. Moreover,  according to Canada’s Copyright Act, ss. 14.1 and 28.2, musicians actually have “moral rights”, which quite possibly could be violated by the unapproved abridgement of a work or performance if it results in prejudice to the creator’s honour or reputation. It would not be surprising if many musicians have been forced to “waive” these rights in favour their record companies. However, even if there is a “waiver”, it would be interesting to see if could apply in this type of situation and whether any record companies would authorize any radio station to invoke it.

It will be interesting to see if  Music Canada, SOCAN, Re:Sound or other organizations that exist only because of the creativity of musicians  react to these reports. But, so far as I’ve seen or heard, it’s been radio silence.

By the way, the only musical shortening of which  I absolutely and irrevocable approve and applaud and which has a strong Canadian connection is the late lamented  Anna Russell’s incomparable classic abridgment of Wagner’s four evening four episode twenty hour “Ring Cycle” of operas into a twenty minute hilarious and amazingly accurate condensation that will never be obsolete. One can be quite sure that the humourless and thoroughly obnoxious Richard Wagner (1813-1883) NEVER would have approved of this. Of course, this could also pass muster as a “parody”. Either way, it’s worth listening to and watching again and again….


Friday, August 08, 2014

As Plagiarism is Becoming Seriouser and Seriouser...

Senator John Walsh from Montana 

"Democratic Montana Senator John Walsh is dropping his campaign for office amid allegations he plagiarized part of a university paper he wrote in 2007."

See this report and many others....


PS - with apologies to Lewis Carroll:

Thursday, August 07, 2014

Monkey ©, Monkey Do™: Copyrights and Animal Rights

I suppose I'll have to eventually do a blog about Monkey ©, Monkey Do™ and Copyrights and Animal Rights...

I'm sure that this brilliant primate photographer has quite a tail to tell.

Between this and the Ikea Monkey, it's been quite the year or two for Monkey Business.


Friday, August 01, 2014

Re-appointment of Claude Majeau as Vice-Chairman of Copyright Board for a Term of Three Years Effective August 4, 2014

Claude Majeau
(Copyright Board)

   His Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to sections 66 and 66.2 of the Copyright Act, re-appoints Claude Majeau of Val-des-Monts, Quebec, as vice-chairman of the Copyright Board, to hold office during good behaviour for a term of three years, and fixes his remuneration at the rate set out in the annexed schedule, which salary is within the range GCQ 5 ($141,300 - $166,200), effective August 4, 2014.
   Sur recommandation du ministre de l’Industrie et en vertu des articles 66 et 66.2 de la Loi sur le droit d’auteur, Son Excellence le Gouverneur général en conseil renouvelle le mandat de Claude Majeau, de Val-des-Monts (Québec), vice-président de la Commission du droit d’auteur, à titre inamovible, pour une période de trois ans, et fixe sa rémunération au taux spécifié à l’annexe ci-jointe, lequel traitement se situe dans l’échelle GCQ 5 (141 300 $ - 166 200), à compter du 4 août 2014.

Tuesday, July 29, 2014

The US Music Industry Pushes the Litigation Innovation Envelope Again: Moving On From Single Mothers to the Biggest Car Companies


Although it may have been a misquote, the old 50’s phrase "What's good for General Motors is good for the country" (USA) has become a kind of trademark and shibboleth of American business, culture and governance.

In a notable new development, the American music industry is determined to challenge this notion by suing GM and Ford and two suppliers for $2,500 for every vehicle they have sold for the last three years that includes CD ripping technology. See here and here and here.

The music industry litigation arises under the Audio Home Recording Act (“AHRA”). This law now forms Chapter 10 of the U.S. Copyright Act. The car companies have been selling cars that have devices that are capable of “CD Ripping” – namely loading CDs that consumers have bought and paid for into memory so that they can play them back through the car’s entertainment system while driving without having to perform manual and mental gymnastics on thruways in rush hour. The irony, of course, is that likely hardly anybody uses this CD ripping technology now – since almost everyone with a new car will use a Bluetooth connection from their smart phone or iPod technology to hear their personal collections of music.

The AHRA was passed in 1992 and almost from the beginning was seen as something of  a dead letter and useless law conceived to deal with technologies that were then almost and now are virtually completely obsolete – such as DAT and Minidisc technology. It has enormous scope for exemption for devices and media the “primary” purpose of which is not to copy music. Even in its heyday, the royalties that it generated were miniscule and maxed out at $5.3 million in 2000, ironically a small fraction of what the now moribund Canadian private copying levy scheme once generated.

One wonders why, apart from common sense, the lawsuit was not launched a long time ago. This new litigation may be the result in part of a recent US Supreme Court case that allows, in effect, for rolling three year limitation periods in copyright litigation.  Perhaps the American music industry believes it can make up for lost time and craves more attention now by making new and even more powerful enemies. If suing a single Native American mother and a Boston university student for millions isn’t sufficient to get their desired level of attention, then why not sue the biggest automobile companies? This now seems to the music industry’s latest example of “innovation” – at least in litigation.

In any event, we have dodged this bullet – perhaps more like a mortar bombardment - in Canada. There has been successful litigation on two occasions to stop the Canadian Copyright Board from imposing a levy (which even Ministers of the Crown now call a “tax") on the memory permanently embedded in “devices” and then on the “devices” themselves. See here and here. And the current Government has decisively rejected any legislation enabling an “iPod tax”, which the current Industry Minister, James Moore, when he was Heritage Minister, bluntly referred to as a “really toxic and, frankly, really dumb” idea. This government has also decisively implemented a regulation to stop the Copyright Board from imposing a “tax” on microSDs. I should disclose that I have been involved in these Canadian developments over many years on behalf of the Retail Council of Canada.

In fact, we did talk about the AHRA in the Canadian proceedings back in the day. In 1999 and 2003, I brought James M. Burger, a prominent Washington lawyer and one of the architects of the AHRA, up to talk about how it works and what lessons was could learn about levies on media and devices. His testimony was very helpful and even prophetic. The then Chairman of the Copyright Board, Justice John Gomery, welcomed him on his second visit by referring to him on the record as “probably the oracle from on high on these subjects, as far as I can see.”