CRA-ADC

And We Quote...

in cra-briefings37 · June 15, 2006

Mankind’s inexhaustible capacity for producing ideas makes us unique. Yet this extraordinary ability is often taken for granted. We hardly notice the countless ideas we generate everyday, or how much of what we value is the fruit of others’ ideas. Labour saving inventions, pleasing designs, lifesaving technologies. Ideas shape our world. They are the raw material on which our future prosperity and heritage depend. This is why it is important to provide environments in which innovative ideas are encouraged and rewarded. This is why intellectual property exists from the words, music and images which move us, the brands which attract us, from bicycle to biofuel, from microchip to mobile phone it all starts with the idea.

— Dr. Kamil Idris, Director General of WIPO
Address on World Intellectual Property Day

The chair of the Indigenous People’s Caucus attended the recent meeting of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in Geneva.(IGC). At the WIPO General Assembly in September 2006 the IGC mandate was extended for two additional years. IGC Nine, April 24-28, 2006, was the first meeting under the renewed mandate. At IGC Eight many member states had expressed the opinion that the Committee’s progress on genetic resources would be long term, and therewas wide agreement that progress on TK and TCEs (traditional cultural expressions) should be the focus of the Committee’s work in the short term. As The WIPO Secretariat believed there was widespread support at IGC Eight for document WIPO/GRTKF/IC/8/4 on TCEs and document WIPO/GRTKF/IC/8/5 on TK. These two , the documents were presented to IGC nine unchanged as document WIPO/GRTKF/IC/9/4 on TCEs WIPO/GRTKF/IC/9/5 on TK.

Aside from the re-presentation of the two documents, IGC Nine was marked by two other important events: The Norway Proposal and the establishment of the Voluntary Fund. The Norway Proposal is a proposal for charting the IGC’s way forward was modeled on the progression of The Paris Convention. The basic tenements of the proposal is that there needs to be a great deal more discussion on the binding or non-binding international instrument(s) on TK and TCEs under consideration at the IGC, and, therefore, that the Committee should begin with a Political Declaration on TK and TCEs as the start of the ‘roadmap’ of it’s future work. The Voluntary Fund for increased Indigenous participation at IGC meetings that had been under discussion for four years was finally established at IGC Nine. The WIPO Secretariat announced the establishment of the Fund at the beginning of the meeting and that SwedBio, a division of The Swedish Government’s Sweden Development Agency, had contributed an initial $65,000 U.S. to it. The Fund’s establishment received wide support and France announced an additional contribution of 20,000€. A special committee of Indigenous NGOs was struck and met during IGC Nine to decide on which applications would be funded to attend IGC Ten. During the course of the IGC Nine discussions there was wide spread support for the Norway Proposal as a way forward with the TK and TCE documents. Of the very few member states who criticized elements of the documents, Canada spoke against the non Intellectual Property proposals and Australia spoke strongly against the proposal that Customary Law should prevail over Intellectual Property Law. Lead by Brazil, Peru, The African Union, Norway, India, as well as other member states and Indigenous people, the meeting agreed that the IGC should consider the Norway Proposal and set a short term goal of establishing a Political Declaration on TK and TCEs based on the principles set out in the two documents. A significant portion of IGC Nine was spend on members states making comments on specific elements of the text of the TCE and TK documents. In the end, the Committee decide that IGC Ten In December 2006 should be extended one or two days to allow time for comments on specific elements of the text of the documents. The CRA IPC rep also made an intervention at IGC Nine supporting the Norway Proposal and encouraging the IGC to move toward a binding international treaty.

COPYLEFT EVENT TAKES SHAPE!

The CRA’s Fall event has a name and very soon will have it’s own website. It will take place at Ryerson University’s new Student Campus Centre on September 28, 29 & 30^th and it is being sponsored by the School of Journalism. It will open on the Thursday evening and run over Friday and Saturday. We have billed the event as opportunity for artists and creators to share information and experiences about working on/with the Internet. As announced in Briefings #35, it will feature an electronic salon showcasing some of these projects.

Artists and activists from across Canada and from abroad will be on hand to discuss their work and their experiments with new forms of contracts (such as the Creative Commons licence) and innovative business models. There will also be discussions touching on the key themes of IPS and general licencing, of open source and the Internet.

A team has been put in place headed by Denise Bolduc (coordinator) with Phillip Smith of Community Bandwith doing the web strategy, Chandler Powell of Innovolve providing the technical services relating to the salon and web coverage, Misha Globerman for the animation of the event, particularly the Salon. Looking around at new approaches being used for such events, the team has proposed borrowing from the burgeoning experience with “unconferences”, and Barcamps where participants take an active role in programming the event as well in the sessions themselves. So the event will be known as Copy©Camp : an unconference for artists about the Internet and the challenge to copyright. Lawrence Lessig (Creator of the Creative Commons Licence), Bob Young of Red Hat and Lulu.com, and writer and activist Cory Doctorow have been invited. Keep your eye out for Copy©Camp website. Coming Soon @ www.copycamp.ca.

For Community Bandwidth see: www.communitybandwidth.ca/phillipadsmith/for-colleagues.

For Innovolve, see www.innovolve.com.

For Misha Glouberman, host/animator and producer of the series Trampoline Hall, see www.trampolinehall.net.

For Barcamps see: barcamp.org/TheRulesOfBarCamp and a recent article about Barcamp in Ottawa.

CRA ANNUAL GENERAL MEETING

The Fifth Annual General Meeting as help in Toronto on June 1^st 2006 at the Centre for Social Innovation. Delegates representing fifteen organizations were present. With a membership of ten organizations now, the Indigenous People’s Caucus elected its co-chair for the first time.

English Canada Caucus : Susan Crean (TWUC), chair, Ken Thompson (ACTRA) director, Janice Seline (CAR/FAC Collective) director.

Quebec Caucus : Michel Beauchemin (AQAD) chair, André Cornellier (CAPIC) director, Mireille Gagné (CMC) director.

Indigenous Peoples’ Caucus : Greg Young-Ing, chair.

Welcome New Members: Association for Native Development in the Performing and Visual Arts, Native Earth Performing Arts, Centre for Indigenous Theatre, TRIBE : Centre for Evolving Aboriginal Media, Visual and Performing Arts Inc, and Indigenous Performance Art Alliance.

Updates

in cra-briefings37 · June 15, 2006

OFFICE of the U.S TRADE REPRESENTATIVE ISSUES 2006 SPECIAL s. 301 REPORT

The Office of the United States trade representative has released its special section 301report for 2006. Thirteen countries including China, Russia and Venezuela are on the Priority Watch List and 34 countries including Canada, Bolivia, Costa Rica, Vietnam and Uzbekistan are on the Watch List. The USTR still plans to conduct an out-of-cycle review on Canada, which was delayed in the 2005 calendar year due to a change in government. As Canada remains on the Watch List, the USTR has stated that the key areas for action by Canada include the ratification and implementation of the WIPO treaties, amendment to copyright law to provide protection in the digital environment and improvement of the intellectual property enforcement system. For more details on the Special Section 301 Report please go to www.ustr.org.

CANADIAN MUSIC CREATORS COALITION IS LAUNCHED

In April, Stephen Page, of the Bare Naked Ladies, wrote an op-ed for the National Post announcing the launch of the Canadian Music Creators’ Coalition. The group of music creators has articulated three key principles it states should underscore Copyright reform in Canada:

Suing fans is destructive and hypocritical.
The use of digital locks, frequently referred to as TPM’s, are risky and counterproductive.
Cultural policy should support actual Canadian artists.

For more information on the CMCC check out their site at www.musiccreators.ca, or view the op-ed piece at www.thenationalpost.com.

THE COST OF BOOTLEGGING ON THE MOTION PICTURE INDUSTRY

A study by LEK Consulting has quantified the cost of bootlegging and unauthorized downloading on the Motion Picture Industry to have been $6.1 billion dollars in 2005. $3.8 billion dollars of this amount is attributed to bootlegging while the remaining is attributed to unauthorized downloading. This is the first time a study has quantified the impact of downloading on the motion picture industry. For more information on this study please see: www.siliconvalley.com.

SIX MAJOR INDEPENDENT LABELS SPLIT FROM CRIA

Six major independent music labels in Canada have split from the Canadian Recording Industry Association. The companies stated that CRIA’s position on several major issues were not aligned with the best interests of independent labels and therefore they felt they had no choice but to withdraw their support from the organization. The primary reason cited for their departure was the position CRIA had taken in submissions to the Canadian Radio Television and Telecommunications Commission concerning Canadian content levels. Ric Arboit president of Network Records said that the independent labels want greater support for up-and-comers and that “[CRIA is] looking out for their best interests and their best interests is multinationals that are not Canadian.” Despite their departure the Indie labels agree with other work that is being done by CRIA including its work on copyright reform. For more information on this development see: www.canada.com.

International Issues

in cra-briefings37 · June 15, 2006

FRENCH SENTATE WATERS DOWN BILL

In our last report we commented on French legislation that would have forced technology producers such as Apple Inc. to reveal the source code behind their technological protection measures to competitors. Apple and others upset by this proposed legislation threatened to pull their services out of France. However, various news services have reported that this legislation has been dramatically altered in the French senate that has removed the language that would have forced the companies to licence their digital rights management tools to others. The Senate has not yet voted on these amendments. Consumer response to the amendments has been swift and negative, as consumer groups argue that their right to use the products they purchase is in jeopardy. For more information on the progress of this legislation see www.theinquirer.net or www.arstechnica.com.

WIPO MEETS ON TRADITIONAL KNOWLEDGE

The Intergovernmental Committee on Traditional Knowledge and Folklore recently met at WIPO to discuss a number of issues impacting indigenous and local committees. (See note above in Alliance Activities) Among the results of the meeting was the development of a nine person advisory committee to administer the Voluntary Fund for Indigenous and Local Communities Fund. This Fund is used to foster the participation of indigenous and local communities in the operations of the Intergovernmental Committee.

To review the working papers of this last meeting of the Intergovernmental Committee please see: www.wipo.int/meetings/en/details.isp?meetings_id=9765.

CHINESE ACTIVISTS CHALLENGE NET SENSORSHIP

Chinese activists have launched a petition challenging the government’s censorship of the Internet. The petition has been signed by hundreds of citizens and 13 local websites that have been targeted, charged and/or shut down by government authorities. The activists argue that the regulations that the government uses as the basis for its censorship run counter to the constitution that grants freedom of expression and publication. Rights activist Chen Yongmiao says the rules of the State Council Information Office on the dissemination of news in particular are far too restrictive. For more information on this petition and the related developments see: www.reuters.com.

THE EUROPEAN COMMISSION RECOMMENDS COMMON SANCTIONS

The European Commission has recommended the adoption of common sanctions throughout the European Union to deal with counterfeiting and the piracy of copyright protected goods. The European Commission is hoping to streamline the penalties in all 25 union countries as those penalties relate to infringement on a commercial scale. The fines that have been suggested range from 100,000€ to $300,000€ or four years in prison. The proposed penalties would also empower the courts to grant a permanent injunction prohibiting the infringing party from engaging in commercial activities. It should be noted, however, that the recommendations do not include anything that would streamline regulations related to personal use. For more information on the development of this legislation see www.reuters.com.

US PREPARES NEW BILLS IMPACTING COPYRIGHT

The United States is preparing several new bills to deal with copyright issues that continue to emerge as different modes of digital use progress. The first bill that has been discussed is the “Perform Act, 2006”. This Act would require satellite, cable and Internet broadcasters to pay for the performance of digital music and take measures to prevent theft. This bill is in response to lobbying from the music industry to equalize the playing field between various media that broadcast music, and to provide a source of compensation for downloads from satellite radio. In the period leading up to the introduction of the bill, Sirius Satelite Radio had already reached a deal with some major label to address payment for downloads, while XM Satellite Radio had not made the same progress. For more information on this bill see www.news.com.com.

Mary Beth Peters of the United States Copyright office has also indicated that the United States is preparing to table another new bill, “The Intellectual Property Protection Act, 2006”. The bill introduces several new ‘crimes’ related to infringement of intellectual property rights including conspiracy to infringe copyright and attempted infringement. The bill is based on the principle that copyright owners are not able to compete with the illegal market place and steps must be taken to protect the legal market.

Litigation

in cra-briefings37 · June 15, 2006

HEATHER ROBERTSON CASE TO BE REHEARD BY SCC

With the addition of Justice Rothstein to the bench, the Supreme Court of Canada has determined that the Heather Robertson class action case on behalf of freelance writers agains the Globe and Mail hould be reheard by the court. This rehearing will not mean that the whole proceeding will take place again, but rather that the tapes and transcripts of the hearing will be reviewed by the panel. This rehearing is an indication of the depth of Justice Rothstein’s experience and expertise in intellectual property matters. The court has not announced when this rehearing will take place, so a decision in this case may still be some time away. For more information on the Supreme Court’s schedule please see www.scc-csc.gc.ca or for the announcement of the rehearing see www.lexum.umontreal.ca.

DISPUTES OVER DOWNLOADING ROYALTIES CAUSE PROBLEMS FOR SONY/BMG

Sony BMG is being sued by two famous bands, Cheap Trick and the Allman Brothers. These Bands, which are seeking class action status for their proceedings allege, that Sony BMG has not paid them a fair royalty for the commercial download of their music. This issue arises because the contracts under which the recordings were made did not contemplate the digital distribution of music and did not specify the royalty distribution for this kind of use. The bands allege that they are being short-changed by the labels and are seeking remuneration for the same. For more information on this case see www.online.wsj.com.

RECORDING INDUSTRY ASSOCIATION OF AMERICA TARGETS PIRACY AT UNIVERSITIES

Though no law suits have been commenced, the Recording Industry Association of America together with the Motion Picture Association of American have sent 40 letters to universities and colleges in 25 states in the U.S. informing them of piracy problems occurring over the universities’ local networks. Sharing through P2P networks established on fast university systems is seen as a growing problem by industry associations. Fred Von Lohmann of the Electronic Frontier Foundation has asserted an alternative solution to the problem, suggesting that universities pay a licensing fee and “let the students do what they are going to do anyway.” For more information on this latest step by the RIAA see www.news.com.com.

Global Artists' Issues: focus on Latin America

in cra-briefings37 · June 15, 2006

Latin America is a microcosm that allows an examination of the problems that are facing content developers on the global stage. This was highlighted recently at the International Publishers’ Association Symposium on Copyright held in Montreal in May. The speakers included Chilean author Luis Sepulveda and Mexican Hugo Setzer. Credit must be given to them for the inspiration to focus on Latin America in this briefing and for bringing many of the issues on which this piece is based to the attention of the Canadian content production community.

Latin American countries are experiencing huge problems with piracy; this is evidenced by the appearance of Argentina, Belize, Brazil and Venezuela on the Priority Watch List of the Special 301 report. However, some plead for understanding that this kind of piracy is due to the fact that people in these countries cannot afford to purchase non-pirated goods. They are looking to their governments to find a solution, in particular to make content more accessible for educational purposes.

Some have argued that the position of creators is also impacted by their financial position. Publishing contracts are generally an all-or-nothing proposition. The creator is required to sign a contract under which all, or virtually all, of their copyrights are surrendered, or not get published. This kind of approach is beginning to emerge in developed countries such as Canada, but does not appear to be as widespread or affect artists who are well established.

Creators are lobbying in Latin America to protect their rights. Recently representatives of seven Latin American countries met in Brazil to discuss the establishment of collective societies that would be under the control of the creative community. To date only Mexico has a collective society that is controlled by rights holders, with Argentina, Brazil, Chile, Ecuador, Peru and Uruguay working toward the development of the Mexican model. The development of effective creator controlled collectives in Latin America would be an important step toward the protection of creators rights and give creators a cohesive voice for lobbying government. For more information on these initiatives see www.union-network.org.

The legislative situation in Latin America has been described as “The Good, The Bad and The Ugly” by Hugo Stezer the chair of CeMPro, the Mexican reprographic rights organization.

Mexico represents the most promising legislative environment where three new bills implicating copyright have been tabled. The first is an anti-piracy bill which is being debated in the senate under which the police would be able to act against an offender without a claim from the party whose rights are being infringed. The current law in Mexico requires such a complaint. However, any charge for the purchase of pirated goods will still be hard to prove as here must be evidence that the purchaser knew the goods purchased were illegal copies. Finally in an effort to curb mass market piracy, this bill also introduces harsher sanctions for established pirates.

In December 2005, the house debated a bill on private copying which attempted to make a distinction between private use and uses that should be subject to licensing. The final bill contemplates a levy on photocopying machines and other machines used to make copies. This levy is being heavily contested by the manufacturing industry. Brazil is also actively involved in amending its legislation. There is a bill currently being considered in Brazil which would allow students enrolled in university to make entire copies of textbooks for non-commercial purposes. While passage of this bill could substantially affect publishers and rights holders in Brazil, rights holder groups have not been greatly concerned as there is a general belief that the bill will not pass.

Mr. Setzer indicated that the worst situation in Latin America is in Venezuela. The Venezuelan government has proposed a copyright bill that violates many provisions of the Berne Convention and TRIPS Agreement. The bill would make it mandatory to register copyrighted works, would establish a mandatory maximum royalty and would permit the government to “seize works for reasons of collective benefit”. In the event of such seizure any rights that a creator might have in the work would be surrendered to the state. This provision would apply whether or not the work was by an indigenous creator or publisher. The greatest concern for the industries is that this bill is likely to pass and other countries such as Peru and Bolivia would likely follow suit.