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And We Quote...

in cra-briefings31 · November 15, 2005

Long the preserve of the privileged few, knowledge has been gaining ground in the public arena: books, which up to now were the perfect tool of knowledge and interchange, have now been joined by the latest communications technologies that many see as new paths to development. The aim, however, is to replace a society that amasses mountains of information by another that allies a critical approach with free and fair distribution of knowledge.

— Statement on portal.unesco.org September, 2005

Alliance Activities

in cra-briefings31 · November 15, 2005

A FEW INSIGHTS ON INSIGHT...

Several CRA members attended a conference entitled Copyright Reform in Canada: Meeting the Challenges of the Digital Age held at the Old Mill in Toronto in September 15-16. The event was put on by Insight Information, a US based company that bills itself as a leading provider of continuing education for senior executives and professions throughout Canada and the US. Many of the country’s lawyers, politicians and business people who focus on copyright issues attended, including the parliamentary secretary to the Minister of Canadian Heritage, and now the Minister of Industry as well, Sarmite Bulte.

During the two-day session, the participants engaged in a substantive review and criticism of Bill C-60, the bill to amend the Copyright Act tabled last June. Three issues took the fore in the discussions: the protections for TPM’s, ISP Liability and a number of drafting issues with the bill.

Barry Sookman, Chair of the Intellectual Property Group at McCarthy Tetrault LLP in Toronto, and one of the Conference’s co-chairs, led the review of the provisions offering protection to Technological Protection Measures (TPM’s). In order to be in a position to ratify the WIPO treaties Canada must offer protection for TPM’s that, according to Article 11 of the treaty, offers “adequate legal protections and effective legal remedies” for TPMs and copyright owners both. Bill C-60 proposes protection that allows copyright owners to seek remedies against persons who know or ought to know they have broken a TPM or who use material from which they know or ought to know the TPM has been removed. However, the copyright owner must prove that the user knew or ought to have known and there is no provision in the bill allowing copyright owners to seek remedies against companies or individuals that provide the tools for circumvention. The latter point raised some concern that the TPM protection offered by the bill does not go far enough. In fact the protection Canada is proposing is dramatically lower than that instituted by our major trading partners including the US and the EU. Sookman indicated that there is currently no country that has ratified the WIPO treaties with such weak protections for TPM’s The contents of Mr. Sookman’s presentation can be viewed at www.mccarthy.ca.

There was an interesting debate between Graham Henderson, president of CRIA (Canadian Recording Industry Association), and several representatives of Bell and Telus, Canada’s major ISP providers, on the merits of the provisions removing ISP liability for the movement of infringing content over their networks. The Bill C-60 provisions can be summarized as follows. Instead of taking the approach of a Notice and Take Down regime as seen in the US Digital Millenium Copyright Act (DMCA), Bill C-60 opts for a Notice and Notice regime which very clearly puts much less power in the hands of creators for encouraging the removal of content that infringes their copyright. ISP providers insisted that there is no need for a Notice and Take Down regime in Canada; they argued that such a regime could lead to the removal of content that did not infringe copyright. Under a Notice and Notice regime, when and ISP receives notice of infringement occurring over its networks it is required to send that notice on to the owner of the web site and keep information on record related to that notice for a period of 6 months in order to facilitate the commencement of any law suits. Henderson argued that a Notice and Take Down regime would be the more effective route to monitoring the Internet as removal of the content would often satisfy the copyright owner, lead to fewer law suits and lower costs and court congestion. Nevertheless, it appears Canada will have nothing more than a Notice and Notice regime. Notably, there was also concern expressed that due to the way the bill is currently drafted there appears to be a loophole through which P2P networks may be able to operate in Canada without incurring liability. It will be interesting to see if the government sees fit to close this loophole as the bill moves through legislative process.

Many of the bureaucrats involved with the bill have acknowledged that the drafting was rushed and accordingly there are a number of places in the bill where the government’s intention is not clear. The same bureaucrats have indicated that there will be no substantive changes to the bill as it works its way through the parliamentary process, though a number of these drafting errors will be rectified.

Updates

in cra-briefings31 · November 15, 2005

ALTERNATIVES TO GOOGLE PRINT

As mentioned in Briefings #30, several creator groups, particularly those in the US, have expressed concern with the rights clearance being undertaken by Google Print. The projects noted below demonstrate how the needs of users can be met while the rights of creators are respected.

Project Gutenberg: www.gutenberg.org.

This digital conversion project has been going for more than 10 years. The founders chose to convert only works that are in the public domain and works whose authors have given Gutenberg permission to distribute them. On its website Project Gutenberg publicizes the stringent conditions associated with the conversion of these works and the steps taken to identify works in the public domain. To date this project has focused only on American material though there is some effort to bring the project to Canada. The website notes that its covers works in the public domain in the US, and that users living in other countries should “check the laws of the country you live in before you downloading and distributing our ebooks.”

YAHOO Conversion Project

The Yahoo conversion project is taking place in association with the University of Toronto and University of California and is being supported by the Open Content Alliance www.opencontentalliance.org. This project requires that content be in the public domain or have explicit permission from the copyright owner to scan the content that will be searchable under the project. Brewster Kahle of the Open Content Alliance has stated that “We are trying to bring public access to the public domain; we want people to be able to do great things with the classics of humankind.” For more information on the Yahoo project see www.chronicle.com.

NEW LEGISLATION FOR SPAIN

Over the summer the Spanish government introduced new legislation to implement the European Information Society Directive. Creator groups and others have expressed concern that this legislation negatively impacts the balance between the rights of creators and the needs of users by creating exceptions for certain educational users with no payment. The collective in Spain, CEDRO, is lobbying the legislators and ministers for changes to this law. For more information on the Spanish law please see: www.ifrro.org or www.cedro.org/inico.asp.

WHAT’S NEW AT UNESCO

UNESCO has now released the long awaited report on Globalization and Intangible Cultural Heritage based on meetings that were held at UN Headquarters in August 2004. The report is downloadable from www.unesdoc.org.

At its 33rd General Conference held October 3 to 21, UNESCO discussed the draft convention on the Protection of Diversity of Cultural Contents and Artistic Expressions. For the contents of the director general’s report of the draft convention please see portal.unesco.org/culture.en. On October 17th the general meeting adopted the convention by an overwhelming majority: one hundred and fifty one to two, the two being the United States and Israel. (Four countries abstained: Australia, Liberia, Honduras and Nicaragua.) Canada is being called upon to lead the implementation process of this treaty by quickly ratifying it and encouraging other countries to follow our lead. For more information on the ratification of the treaty please consult the web page of the Coalition for Cultural Diversity at www.cdc-ccd.org.

The Alliance, it should be remembered, raised serious concerns about the draft convention’s treatment of the rights of artists and creators. (See #22, #24 and #28 of the CRA’s Briefings available on this website.)

WHAT’S NEW AT WIPO

On September 29th the World Intellectual Property Organization announced an agreement to continue and accelerate work on intellectual property and traditional knowledge by extending the mandate of the IGC Committee (Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore) for two years. WIPO hopes to focus on the international dimensions of the issue. Delegates to the committee are looking for an international solution that expresses an understanding of how to protect traditional knowledge and traditional cultural expressions from misuse. For more information on this announcement please see WIPO’s press release 2005/421.

EXTENDING AMERICAN REACH IN THE FIGHT AGAINST PIRACY

In an attempt to combat international piracy, the US Commerce Secretary, Carlos Gutierrez, has announced that the American government will take the unprecedented step of sending anti-piracy teams abroad to countries that it considers the most egregious infringers of intellectual property rights. “Intellectual Property Rights Experts” have been dispatched to China, Russia and Brazil, and it is expected other countries will similarly visited. For more information on this announcement please see www.hollywoodreporter.com.

SEARCHING THE INTERNET FOR STREAMING AUDIO

Podcasts have become a common feature on the Internet that allow listeners to subscribe to real simple syndication (RSS) feeds to hear individual shows or entire program series. Podcasts found on the Internet include talk radio programs and the work of audio-visual and mixed media artists who are using the Internet as a means of business, marketing and promotion. Following steps taken by America Online and Blinkx, Yahoo has launched a beta search engine that will allow prospective listeners to search podcast content by key term or subject. More information on the launch of the Yahoo search can be found at www.news.com.com.

Global Artists' Issues: focus on the Russian Federation

in cra-briefings31 · November 15, 2005

The Russian Federation is still in the process of developing a market economy and ceding to the rules of the World Trade Organization. One of the barriers still standing the in the way of its admission as a member of the WTO is the status of its copyright law.

Russia first modernized its copyright law in 1993 with a law entitled number 5351. Though driven by the desire to join the WTO, the law nevertheless failed to meet the standards that were established by the TRIPS agreement two years later, such as protection for sound recordings created prior to 1973. TRIPs standards were not met until legislative amendments were proposed in 2004; however, some of these amendments, including those giving retroactive protection to musical works and securing the exclusive making available for creators, will not come into effect until September 2006. Though Russian copyright law has come a long way in a short time, it still has a way to go to give creators the protection that is expected on a global scale.

PROBLEMS FOR RUSSIAN CREATORS

Generally the problems for Russian creators are caused by a combination of weak law and high levels of piracy. Piracy is very prevalent in Russia. The 2004 Recording Industry Piracy Report indicated that 64% of all CD’s sold in Russia that year were pirated. The deterrent effect of Russia’s laws on piracy, moreover, is negligible given the limitations on liability. In order for the provisions of the criminal code to apply, the value of the pirated goods must be at least 50,000 rubles (approx $2,000 CDN) and most instances of individual infringement do not meet this threshold. Furthermore, police do not have the power to seize either infringing copies or the machines that are used to make them. Because of these weaknesses, Russia has repeatedly been listed on the Priority Watch List of the Office of the US Trade Representative.

However, government officials in Russia have been unwilling to accept exclusive blame for the levels of piracy in Russia, citing external pressures. Sergi Mescheryakor, head of the Russian Interior Ministry Economic Security Department, has stated, “Lack of monitoring and high prices set by foreign rights holders contribute to counterfeit production in Russia” (see www.en.rian.re). Despite this, the Ministry has pointed to its successes in the fight against piracy. According to Mescheryakor, more than 200 production facilities have been shut down, 4000 cases for counterfeit production have been filed, and approximately $30 million dollars worth of pirated merchandise seized since the beginning of 2005.

The law in Russia offering protection for creators’ rights is weak. This is best evidenced in a case that was brought by the estate of Vladimir Nabokov, famed author of Lolita, against a number of Russian publishers who had produced unauthorized translations and editions of his works in 2003. Though this case has apparently not been resolved yet, the publishing house involved has stated that it did nothing illegal because all of the works involved predate copyright protection and therefore there is no restriction on their publication. This case is a clear demonstration of laws considered inadequate elsewhere in the world being used to exploit creator rights. See: www.inauka.ru/englishnews/article37670.html. In bringing this suit, Nabokov’s heirs are not planning to benefit themselves, but have indicated any settlement would be paid to the St. Petersburg museum. (See archive.sptimes.ru.)

Though there is some licensing in Russia, it appears to be weak and ineffective because of the inability to license the wide range of uses demanded by users. Licensing that is offered in Russia by the Russian Multimedia and Internet Society www.roms.ru, a collective registered under Title IV of the Copyright Act, can cover physical goods (e.g. megs of ram, storage space instead of the items) rather than the digital content. Accordingly AllofMP3, an online music content provider, is able to purchase a license based on the amount of content circulated, number of megs rather than the digital file. Due to this loophole AllofMP3 charges its users approximately $5.00USD for 80 albums of music. Evident from these numbers is the fact that inadequate compensation is being paid to creators. Complaints made against AllofMP3.com by Russia’s computer crimes unit and the International Federation of Phonographic Industries have not led to any change in the law or any liability for the service providers. For more information on these loopholes in Russian law see www.law.bepress.com or www.out-law.com.

GROUPS INVOLVED IN CREATORS’ RIGHTS IN RUSSIA

Many of the creator groups in Russia remain grass roots movements with little power; however, several international organizations are actively involved in the Russia.

Corrections and Comments

in cra-briefings31 · November 15, 2005

Please note that the organizations whose referenced in the CRA Briefings are provided as sources of information only. The Creators’ Rights Alliance and the authors of this newsletter do not attribute any positions or views to these organizations. Specifically, the CRA would like to confirm that CIPPIC and Digital-Copyright Canada are not users’ groups, but rather sources of information and diverse points of view. We thank Russell McOrmond of digital-copyright.ca for drawing this point of potential confusion to our attention and for clarification of the nature of the organizations: “Cippic.ca is an unbiased law clinic that deals with all sides of the issue, and digital-copyright.ca is a citizens forum primarily made up of people who are from the next generation of creators. They are not as this bulletin [Briefing #29] claims “user groups”.”

Congratulations and Announcements

in cra-briefings31 · November 15, 2005

  • Congratulations to Harold Pinter, the British playwright and winner of the 2005 Nobel Prize for Literature.
  • The Periodical Writers Association of Canada (“PWAC”) would like to announce it is changing its name, still PWAC, but now the Professional Writers Association of Canada.
  • To make an announcement in Congratulations please e-mail vjones@sympatico.ca