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Separating Copyright Facts from Fiction Ahead of Legislative Hearings PDF  | Print |  E-mail

Canadian copyright law promises to dominate discussion in Ottawa over the coming weeks as hearings on Bill C-32, the controversial copyright bill, are set to begin within a few days. My weekly technology law column (Toronto Star version, homepage version) notes that if the past six months are any indication, Members of Parliament will be asked to sort through confusing rhetoric in order to understand the implications of the proposed changes.  Separating fact from fiction will not be easy, but getting straight answers to the following questions will be crucial: 1.    Will Bill C-32 give education institutions the right to engage in massive uncompensated copying? No. The inclusion of education as a fair dealing category will not mean that any educational copying will be free.  It will only mean that educational copying will be eligible for analysis under a six-part test developed by the Supreme Court of Canada to determine whether the copying qualifies as fair dealing. The changes in Bill C-32 are more modest than often claimed as they merely fill some gaps in the existing list of fair dealing categories. 2.    Will Bill C-32 give consumers the right to make backup copies and view or read their purchases on the device of their choice? Sometimes. The bill includes new consumer exceptions that open the door to legally recording television shows (time shifting), moving content between devices (format shifting) and making personal backup copies.  However, the bill also says that if the content, such as DVDs and e-books, contains a digital lock, consumers can’t circumvent the lock in order to exercise their rights.  Since digital locks are commonly found on these products, Canadians may not actually get to exercise their new “rights.” 3.    Aren’t the digital lock rules in Bill C-32 required by international law? No. The government has made implementing the World Intellectual Property Organization’s Internet treaties a key priority and those treaties include a requirement to provide legal protection for digital locks.  However, the treaties feature considerable flexibility that permits countries to allow users to circumvent digital locks for legal purposes.  The Bill C-32 model is one of the most restrictive approaches in the world – even the U.S. permits circumvention of DVD locks for some non-commercial purposes – and could be amended to match the more flexible implementations found in countries such as New Zealand and Switzerland.   4.    Does Bill C-32 require Internet providers to help combat piracy? Yes.  The bill codifies a “notice-and-notice” system that gives rights holders the power to notify ISPs of alleged infringements and requires the ISPs to forward the notifications to the targeted subscribers.  ISPs bear the costs of this system, which has been used informally in Canada for more than five years. Studies have shown that a majority of users that receive notifications cease placing the infringing file back on file sharing networks. 5.    Does Bill C-32 create a “licence to steal” by reducing statutory damages awards? No.  Canada is one of the few countries in the world with statutory damages for copyright, which can lead to liability of up to $20,000 per infringement.  The lofty awards were designed for commercial infringement, as no one envisioned multi-million dollar lawsuits against individuals.  Since that has become a reality in the U.S., Bill C-32 establishes a $5,000 cap for non-commercial infringement, which still represents a very significant penalty for such activities. 6.    Will Bill C-32′s user-generated content provision deprive creators of commercial opportunities? No.  The provision, which legalizes the creation of certain forms of user generated content, is limited to non-commercial activities, requires attribution, and does not apply if there is a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the original work. Comments (9) Read more at www.michaelgeist.ca

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The False Link Between Locks and Levies PDF  | Print |  E-mail

Monday November 22, 2010 The Bill C-32 legislative committee meets for the first time tomorrow with hearings likely to begin later this week.  The digital lock provisions will undoubtedly be a major focus of discussion with all three opposition parties calling for changes to the current approach. Industry lobby groups will continue their effort to keep the C-32 lock provisions, one of the world’s most restrictive implementations of anti-circumvention legislation, unchanged. While their support has not wavered, the lobby group rationale for supporting the existing digital lock approach continues to evolve.  Some have tried to argue that the approach is required by the World Intellectual Property Organization Internet treaties, a position that the legislative history and international practice conclusively demonstrates is wrong.  Others have suggested that Bill C-32 is consistent with other countries, only to find that many other countries adopt less restrictive approaches (e.g. New Zealand and Switzerland) with even the U.S. implementing exceptions on DVDs and jailbreaking phones not found in Canada.  Those that hoped that ACTA would provide a reason to keep the C-32 digital lock provisions have been also disappointed, as the ACTA text retains international flexibility with the EU’s interpretation providing firm evidence that C-32 goes beyond what is required (the same will presumably be true for CETA). With these lines of argument lost, the industry lobby groups now appear set to argue that the opposition to extending the private copying levy provides a strong rationale for strict anti-circumvention rules.  While it surprised some MPs this past spring that groups like CRIA oppose extending the levy, the same groups now want to argue that if creators are not compensated via the extended levy they oppose, they instead need stronger legal protection for locking down their content. This argument is wrong again.  First, the attempt to link locks and levies provides a useful reminder that Bill C-32 prohibits circumvention even with the existence of the levy.  In other words, consumers are asked to pay twice – first for the CD and second for the levy on the blank CD – and yet are labeled infringers if they seek to make the personal copy they’ve effectively paid for.  If CRIA’s supporters believe in the link between locks and levies, they surely should be arguing for the right to circumvent where the levy is in place (but don’t). Further, experience demonstrates there is no link between locks and levies. Countries such as New Zealand have adopted flexible anti-circumvention rules and do not have a levy.  There is also limited overlap in terms of coverage with restrictive locks applying to everything (CDs, DVDs, e-books, etc.), while the levy only applies to sound recordings.  Yet the best rationale for understanding why there is no link came last week from Canadian Heritage Minister James Moore.  As I blogged, last week he told the CBC: When I buy a movie, I’ve paid for the movie. To ask me to pay for it a second time through another device - and to assume that I’m doing illegal copying, to assume that I’m being a pirate, to assume that I’m thieving from people because I happen to own an MP3 player or a BluRay player or a laptop, I think treats consumers unfairly. Moore is right – consumers should not be asked to pay twice and the law should not start from the assumption that consumers are violating the law.  That is a powerful argument against the levy, but it also applies to anti-circumvention rules that attempt to force consumers to pay multiple times for the same content and start from the presumption that consumers are infringers.  The right approach is to adopt anti-circumvention rules that target the infringers, but ensure that consumers are not treaty unfairly by maintaining their rights even with the presence of a digital lock.

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Bill C-32 Legislative Committee Formed PDF  | Print |  E-mail

The new legislative committee for the review of Bill C-32 has been announced.  Members include: Conservatives Dean Del Mastro, Mike Lake, Kelly Block, Sylvie Boucher, and Peter Braid; Liberals Marc Garneau, Pablo Rodriguez, and Dan McTeague; Bloc MPs Serge Cardin and Carole Lavallée, and NDP MP Charlie Angus. A chair of the committee must be selected within two sitting days. Read more at www.michaelgeist.ca

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Monday November 15, 2010 A coalition of English-language writers organizations have publicly posted their response to Bill C-32.  Despite an ideal opportunity for constructive dialogue and a good faith effort to find compromise positions on the more contentious elements of the bill, the groups have chosen to increase the level of fear mongering with a misleading and often inaccurate document that implausibly claims the end of Canadian publishing is near if C-32 is passed in its current form.  Perhaps most disappointingly, the groups had promised in August to offer “constructive suggestions”, particularly on the issue of fair dealing, which was said to require clear legislative guidance.  Rather than offering proposed language for such guidance, the groups simply want to hit the delete key.  Inclusion of education as a fair dealing category?  Delete.  Non-commercial user-generated content?  Delete.  Digital inter-library loans?  Delete.  Format shifting for private purposes?  Delete.

Monday November 15, 2010

At a time when the opposition parties are asking for constructive advice on how to determine the confines of issues such as fair dealing, the writers groups maintain that there is no scope for including education as a category and refuse to offer any suggested language to improve the bill.  Instead, they offer hyperbolic claims about how C-32 violates international copyright law (despite the fact that the U.S. typically offers more flexibility on these issues) or will result in unfettered copying (ignoring the fact that fair dealing includes a test for determining whether the copying is fair). The full issues and recommendations section from the document (in italics) – along with a much-needed reality check – are posteRead more at www.michaelgeist.ca

This float was in a parade in Berlin ,

You’ve Got to Love those Germans………They have A Great sense of humor!

Is that Hillary… ??

What is she hanging on to?

His stimulus package??Read more at www.sodahead.com

Both Facebook and Google are mum on Gmail’s Facebook vanishing act this weekend, but this much is clear: You will not be importing any Gmail friends to Facebook anytime soon. TechCrunch noticed the strange disappearance late last night (there was no warning or hints it would happen). FriendFeed, which is a thing that still exists, has also undergone a kind of Gmail scrubbing from its import features:

And so the passive agressive battle between these two mega companies continues! Be sure to tune in next week when Google eggs Mark Zuckerberg’s house. [TechCrunch] Read more at gizmodo.com

Next month marks the twentieth anniversary of the first webpage – served up by Berners-Lee at the CERN particle physics lab in Geneva – and in the December issue of Scientific American, he celebrates the uniquely democratic nature of his creation, before warning against the forces that could eventually bring it down. “Several threats to the Web’s universality have arisen recently,” he says.

He briefly warns of cable giants who may prevent the free flow of content across the net. “Cable television companies that sell internet connectivity are considering whether to limit their Internet users to downloading only the company’s mix of entertainment,” he says. And then he sticks the boot into social networking sites, including Mark Zuckerberg’s net behemoth. “Facebook, LinkedIn, Friendster and others typically provide value by capturing information as you enter it: your birthday, your e-mail address, your likes, and links indicating who is friends with whom and who is in which photograph,” Berners-Lee writes.

“The sites assemble these bits of data into brilliant databases and reuse the information to provide value-added service—but only within their sites. Once you enter your data into one of these services, you cannot easily use them on another site. Each site is a silo, walled off from the others. Yes, your site’s pages are on the Web, but your data are not. You can access a Web page about a list of people you have created in one site, but you cannot send that list, or items from it, to another site.”

“The isolation occurs because each piece of information does not have a URI,” Berners-Lee continues, referring to universal resource identifier. “Connections among data exist only within a site. So the more you enter, the more you become locked in. Your social-networking site becomes a central platform — a closed silo of content, and one that does not give you full control over your information in it. The more this kind of architecture gains widespread use, the more the Web becomes fragmented, and the less we enjoy a single, universal information space.

Entitled “Love Live the Web,” the Scientific American piece goes to promote the use of, yes, open standards. If you don’t use open standards, Berners-Lee says, you create “closed worlds.” Like Apple’s iTunes. “Apple’s iTunes system,” he says, “identifies songs and videos using URIs that are open. But instead of ‘http:’ the addresses begin with ‘itunes:,’ which is proprietary. You can access an ‘itunes:’ link only using Apple’s proprietary iTunes program.

“You can’t make a link to any information in the iTunes world—a song or information about a band. You can’t send that link to someone else to see. You are no longer on the Web. The iTunes world is centralized and walled off. You are trapped in a single store, rather than being on the open marketplace. For all the store’s wonderful features, its evolution is limited to what one company thinks up.”

He also bemoans the proliferation of net-connected apps on the Apple iPhone and other smartphones. “The tendency for magazines, for example, to produce smartphone ‘apps’ rather than Web apps is disturbing, because that material is off the Web. You can’t bookmark it or e-mail a link to a page within it. You can’t tweet it. It is better to build a Web app that will also run on smartphone browsers, and the techniques for doing so are getting better all the time.” Read more at www.theregister.co.uk