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And We Quote...

in cra-briefings29 · September 15, 2005

Canada’s ability to foster an innovative economy depends on the creation, dissemination and commercialization of ideas. Innovators are rewarded, research is facilitated and the use of technology is advanced.

—Honourable Mr. David Emerson, Minister of Industry on June 20, 2005

Alliance Activities

in cra-briefings29 · September 15, 2005

CRA-ADC ASKS UNESCO TO RESTORE CREATORS’ RIGHTS PROVISIONS

On July 14th 2005, the co-president and secretary general of the Alliance, Michel Beauchemin, wrote Madame Katérina Stenou to ask her to make every effort to re-insert the provisions of the preliminary draft convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions in the final text of the convention. These provisions recognize the role of individual artists in the development of cultural goods and services, and affirm the necessity of guaranteeing their intellectual property rights.

The text of the letter addressed to Mme Stenou follows along with her response. A comparison of the provisions relating to creators’ rights in the two drafts of the convention can be found in Briefings #28.

Madame Katérina Stenou
Directrice
Cultural Policy Division and Intercultural Dialogue
UNESCO

July 14th, 2005

Dear Mme Director,

As with other organizations concerned about the promotion and protection of cultural diversity at the international level, the Creators’ Rights Alliance / Alliance pour les droits des créateurs of Canada (CRA / ADC) was very pleased to see the adoption of the draft Convention on the Protection and Promotion of the Diversity of Cultural Expressions by the third meeting of experts. If this convention is adopted by the 33rd General Conference of UNESCO next October, it will constitute a major advance for the right of States to set cultural policies that will promote cultural diversity within their own jurisdictions.

Contrary to what we had expected, the same cannot be said for the rights of artists in general and creators in particular. The preliminary draft Convention for the Protection of the Diversity of Cultural Contents and Artistic Expressions, released in July 2004, recognized the essential role individual artists play in the development of cultural goods and service, and consequently it affirmed the necessity of guaranteeing creators adequate intellectual property rights. It also stipulated that the States who will eventually ratify the convention must ensure that all individuals have the possibility of creating, producing, and disseminating their expressions in their own countries, and obliged States to ensure that the legal status of artists and creators is fully recognized.

These provisions, already diluted in the consolidated text of the President and the intergovernmental meeting, have been removed from the draft Convention on the Protection and Promotion of the Diversity of Cultural Expressions. They have either been reformulated in very general and often ambiguous terms, or dropped in their entirety.

Creators thus risk losing the chance, which will not come again, to reinforce their status in an international convention that will be based on international law and equal to other international statues, and which, moreover, will create obligations for signatory States. This at a time when in many countries the rights of artists are being set aside, as in Singapore where the law prohibits artists from organizing collectively to defend their interests. This at a time when, in Canada for example, creators are seeing their rights being increasingly disparaged in favour of users to whom ever more expansive rights are being granted, and seeing this trend continuously extended by decisions of the Supreme Court of Canada as well as by reforms to the Copyright Act. And this in a context where it is becoming more and more evident that the laws on the status of the artist, as much in Canada as Quebec, are not yet adequately protecting artists, especially in the fields of the theatre, visual arts and crafts, and literature.

We are aware that it is very difficult to institute modifications at this stage to the text of the draft convention adopted last June. Nevertheless, we can only ask you to make every effort to re-insert the provisions contained in last July’s the preliminary draft of the Convention in the text that will be submitted to the 33rd General Conference. The higher interests of creators are at issue here, and are, it must be remembered, the source of all cultural goods and services. Moreover, their rights are currently very poorly protected by the Recommendation on the Status of the Artist adopted in October 1980, a recommendation which is not binding on the member states of UNESCO.

Thanking you in advance for your attention and hoping to have the chance to discuss these questions with you again, I remain

Yours sincerely,

Michel Beauchemin
Co-president and Secretary General,

c.c. Madame Lisa Frulla, minister of Canadian Heritage
Madame Line Beauchamp, ministre de la Culture et des Communications du Québec

And Mme Stenou’s response:

Mr Michel Beauchemin,
Co-chair and Secretary General
CRA / ADC

27 July 2005

Dear Mr. Beauchemin,

Thank you for your letter of July 14th concerning the recognition of the status of artists and creators in the draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions.

Of the draft convention being elaborated, it can be said that the presence of artists and creators is not limited to those paragraphs where they are expressly mentioned, but that they inform the entire text, as they are the inexhaustible source of renewal for cultural diversity.

I will, nevertheless, forward your letter to Madame Françoise Sauvage, president of the liaison committee NGO-UNESCO.

My thanks for your engagement on these issues, and your support for the promotion of cultural diversity.

Yours sincerely,

Katérina Stenou
Director
Cultural Policy and
Interculturel Dialogue Division
UNESCO

Updates

in cra-briefings29 · September 15, 2005

IFRRO ADOPTS POSITION PAPER ON PIRACY

The International Federation of Reprographic Rights Organizations, IFRRO, has adopted a statement on the Prevention of Piracy. In its April statement, IFRRO acknowledges that unauthorized reproduction of copyright protected works is a threat to cultural industries and to the evolution of cultural expression. It believes that copyright and creators rights must be protected in order for creators to be motivated to continue create. According to IFRRO, national RRO’s have a role to play in preventing piracy RRO’s by contributing to the public’s awareness of copyright rights, by licensing material to allow legal access to copyright protected works, and by taking steps to enforce copyright when these rights are infringed. For more information on the on the IFRRO position paper please see:www.ifrro.org/papers/ifrro_statement_piracy.pdf.

JAPAN LAUNCHES IP STRATEGY

The Japanese Government has adopted a new strategy to make Japan one of the world’s leading intellectual property nations. A key element of the strategy involves plans to create an international treaty that would help curb the spread of pirated and knock-off goods – a growing problem for Asian nations. The measures proposed include enforcement strategies such as giving boarder officials the power to detain goods both entering and leaving a country. In addition, realizing that the creative economy cannot be strengthened without improving infrastructure, the government has set a ten-year goal for doubling the number of intellectual property professionals. For details about the Japanese policy please see:www.yomiuri.co.jp/newse/20050531woll.htm

GOOGLE ELECTRONIC LIBRARY MEETS WITH PRAISE AND CRITICISM

Late May saw the launch of a Google program under plans to digitize the contents of some of the world’s greatest libraries. These include Oxford University’s library and the New York City Public Library. Users are already able to search a portion of the content of these libraries on line. The project has been praised by advocates for greater public access to copyright protected materials. Though the libraries have consented to participation in the project and Google has stated that it plans to commence with materials that are in the public domain, the project has drawn the ire of a number of major international publishing houses and other organizations. Copyright owners fear that the digitization project will go beyond the public domain to include work in which copyright still exists, impinging on their rights. Public statements to this effect have been made by the American Association of University Presses, as well as publishers John Wiley & Sons and Random House.

The issues related to the digital publication of copyright protected works were highlighted earlier this year when John Wiley & Sons launched 10 law suits against individuals and organizations for allegedly selling pirated copies of texts over the internet.

For more details see: Business Week Online of May 23, 2005.

WIPO DEBATE ON THE VALUE OF IP IN THE INFORMATION SOCIETY

Last June, WIPO held a two-week online forum to generate information for the ongoing debate about the value of intellectual property in the information society. The event was open to all interested persons who wished to contribute. WIPO received hundreds of submission, all of which remain posted on the Forum’s Website(see links below). Of all submissions received only three were removed for offensive content and several others other because of multiple submission.

There were ten themes discussed including whether intellectual property helps or hinders creative expression and whether emerging online business models used to deliver content help or hinder the development of IP. Though the results of Forum have not bee analyzed, WIPO believes that the information gathered in this process will be used to shape its contributions to the second phase World Summit on the Information Society. To review the contributions of the forum please visit: www.wipo.int/ipisforum/en.

“REPORTERS WITHOUT BORDERS” SPEAKS FOR FREEDOM OF INFORMATION ON THE INTERNET

Reporters without Borders and the Organization for Security and Cooperation in Europe have made six recommendations to ensure freedom of information on the Internet. Though the recommendations are initially focused on the European Community, Reporters without Borders have asserted that they have broader international implications. The recommendations suggest that any law affecting the flow of information be anchored in the right of freedom of expression as found in the UN Universal Declaration of Human Rights. Furthermore, Reporters Without Borders suggests that citizens should be able to decide what they wish to access on the internet, and that any filtering or rating of online content by governments is unacceptable. (See also www.rsf.org/article.pho3?id_article=14136.)

AMENDMENTS TO THE COPYRIGHT ACT TABLED IN PARLIAMENT

On June 20, 2005 the Canadian Government introduced its long anticipated Bill to amend the Copyright Act. Bill C-60 is the first since 1997, and the attempts to deal with some aspects of the Internet. The Bill can be commended for placing Canadian photographers on the same footing as other creators (measures giving photographers first copyright), and for recognizing the rights of performing artists. The Bill provisions regarding Internet Service Providers, digital rights management and technical preventions measures will also put Canada in a position to ratify the WIPO treaties.

The revisions to the Act are not being praised on all fronts, however. Creator and producer groups are concerned that the educational amendments will be damaging for the collective administration of copyright. This concern relates to the automatic application of the collective license for digital material used in classrooms, apparently without any consideration of the practical implications of this to the licensing regime. Creator groups are also concerned about the decision to relieve Internet service providers (ISPs) of responsibility for the material being distributed through their networks without giving artists any real means of enforcing their rights when their work is illegally put on line.

Some user groups are concerned that the WIPO amendments will damage the rights of users, and are critical that the Bill does make any moves toward the American concept of fair use (see www.p2pnet.net). Several groups have expressed disappointment that the legislation takes steps toward making filing sharing on the Internet illegal, depicting this as an infringement of the users’ right to freedom of speech and access on the Internet. For more information on the concerns of user groups see: www.cippic.ca and www.digital-copyright.ca.

The comments on the Bill have so far been generally cautionary as it appears many groups are waiting until parliament reconvenes in the Fall to gain a greater understanding of the actual application of the Bill. Creators’ associations and collective societies that are grouped under the banner of DAMIC (www.damic.qc.ca) in Quebec and the CCC (www.creatorscopyright.ca) in Canada will be announcing their position soon on the proposed bill. We will report on these in the up-coming bulletins.

The full text of the bill can be found at www.strategis.ic.gc.ca. The government commentary on the bill can be found at www.ic.gc.ca/cmb/welcomeic.nsf The Conservative Party’s response can be found at: http://www.conservative.ca/EN/news_releases/conservatives_defend_educators_use_of_internet/.

Other parties have yet to respond formally.

Litigation

in cra-briefings29 · September 15, 2005

MGM v. GROKSTER

On June 27, 2005 the US supreme court ruled on the long-standing battle between MGM and 27 other music and movie production companies, and the popular peer-to-peer (P2P) file sharing programs such as Grokster, and Streamcast. In a rare unanimous decision, the nine-member court ruled that software makers can be held liable for enabling computer users to copy protected work without permission. “We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement.” Historically, the issue of service provider liability has been determined by applying the “substantial non-infringing use” articulated by the Supreme Court in its 1984 Sony Betamax decision that stated that Sony could not be held responsible if users of Betamax video recorders copied television shows illegally because it could also be used for legitimate purposes. Justice David Souter, speaking for the Court, acknowledged the Betamax decision but stated that this decision had not been intended to shield companies that actively encouraged or induced customers to infringe copyright.

The Court did not determine the matter as between MGM and Grokster, but rather sent the matter back to the lower courts for a decision applying the new test. For the full text of the Supreme Court’s decision refer to www.eff.org/ip/p2p/mgm_v_grokster/04-480.pdf

NTP Inc. v. RESEARCH IN MOTION—UPDATE

Briefings #25 reported that the government of Canada had filed a brief on behalf of the Canadian company Research in Motion in the US Appellate Court with respect to jurisdictional issues and the application of American law to Canadian intellectual property. Though there was a long wait for the decision, the US Appellate Court has decided to rehear the case on certain jurisdictional issues. This may bode well for Canadian creators as the government is apparently taking steps to ensure that Canadian intellectual property rights are not subject to random application of international law in their determination. The text of the decision can be found at caselaw.lp.findlaw.com.

SUPREME COURT DECIDES AGAINST HEARING CPCC TARIFF APPEAL

Also in Briefings #25 it was reported that the Canadian Private Copying Collective had decided to appeal the decision of the Federal Court of Appeal, regarding the application of the private copying tariff to internal memory cards in devices like iPods. The CPCC did file the appeal, however, the Supreme Court of Canada has decided that it will not hear the case.

Here’s more legal history of the case.

Global Artists' Issues: focus on China

in cra-briefings29 · September 15, 2005

China’s first Copyright Act was enacted in the 1990’s shortly before, and as a necessary precursor to, joining the World Trade Organization. There is very limited information available on the status of the creator in China prior to the development of the first copyright act. However as the express intention of the government in introducing copyright legislation was to protect domestic enterprises that are mostly state owned, we can presume that the status of the creator was of minimal concern. The Copyright Act was substantially amended in 2001, and is now a tool that offers some useful protection to Chinese creators. However, these protections do not go beyond the minimum levels required by the Berne Convention, and therefore, for example, do not include moral rights. Despite this progress, the legislation still has a number of problems. Revisions currently being contemplated include anti-piracy measures and steps that would allow creators to organize collective societies for the administration of their rights. The text of the Chinese copyright act can be found at UNESCO’s site.

The Chinese government has acknowledged that it is facing an up hill battle with respect to intellectual property protection and enforcement within its boarders. This problem is ever increasing as China embraces the Internet at a phenomenal speed. To respond to piracy on the Internet, the government has indicated that it will establish a notice and takedown regime, similar to that of the US in order to address issues related to ISP liability. See: www.chinadaily.com.cn.

Creators in China have been pressing for reasonable and effective copyright law for many years. Their lobbying effort predates the first copyright legislation. As things stand, there are three levels of government involved in the administration of copyright, federal, provincial and municipal, the consequence being inconsistent practices in the enforcement and administration across the country. Recently there has been some movement on the part of the Chinese government to centralize administration of copyright law.

Some progress that has obviously been made in the direction of recognizing and protecting Chinese creators’ rights as is evidenced in the government’s White Paper on IPR Protection released in April 2005. The paper highlights regulations that have already been introduced that comply with the Berne Convention and other international copyright law treaties such as the TRIPs. as well as new regulations, which, for the first time, allow collective organization and the collective administration of copyright rights in China. The Music Copyright Society of China has begun this process in music and is working toward the licensing these rights in China. (See www.mcsc.com.cn.)

FREEDOM OF EXPRESSION

Despite increased clarity and relevance of the law, organizations such as Reporters Without Borders remain concerned about the status of the journalists and journalistic freedoms in China. Fears about the freedom expression were raised recently by a new requirement that individuals and organizations communicating on the web register with the Government and refrain from using profanities or making anti-government statements. There remains a degree of defiance on the part of the creative community in China, as only approximately 10% of those presumed to be posting, blogging and hosting on the web have actually registered.

Expatriate and exiled Chinese artists are also working to protect freedom of expression in their home country through the Chinese Centre of International PEN (ICPC) www.penchinese.net . ICPC also strives to publish the works of writer resident in China whose works cannot otherwise be published because of alleged political suppression.

PIRACY IN INTELLECTUAL PROPERTY

Perhaps the greatest issue facing Chinese artists hoping to sell their work internationally is piracy. Some estimates indicate that of all the commercial goods sold in China, 90 percent are pirated. All governmental and commercial parties dealing with China are aware of this. In fact, China has long been a prominent figure on the American watch list of countries involved in piracy of intellectual property. (The list is kept pursuant to Section 301 of the US Trade Act, 1974.) During a June visit to Beijing, the US Commerce Secretary, Carlos Gutierrez, commented that the US would like to see greater anti-piracy efforts from China. In conversations with Chinese government officials, Gutierrez indicated that “now is the time to see some results”.
See: http://tinyurl.com/dyuzq. For more information on Gutierrez statement see www.washingtonpost.com.

The Chinese government is beginning to respond to international pressure. In addition to offering rewards of up to $36,000 for people who report piracy, the Chinese have also created courts that are specifically designated to deal in intellectual property issues. See: www.businessweek.com.

The Court recently concluded the first prosecution of copyright infringement case occurring on the Internet. http://www.chinatechnews.com/index.php?action=show&type=news&id=2611

INTERNATIONAL INVASION

Business has readily recognized the vast potential of the Chinese market for intellectual property goods and Internet marketing. As trade barriers have fallen, foreign corporations have partnered with Chinese companies, or opened new businesses in the country hoping to serve its population and increase their market exposure. For example, Google has recently opened an international office in China to facilitate international meetings and services to the Chinese community. http://www.siliconvalley.com/mld/siliconvalley/news.editorial/11624249.htm

ORGANIZATIONS DEALING WITH CREATORS RIGHTS AND COPYRIGHT IN CHINA