And We Quote…
in cra-briefings40 · June 30, 2007
At its most basic level, copyright has always involved a power struggle. Far from a dry policy discussion conducted in the legislative corridors and back rooms, the development of copyright law has pitted authors, composers, publishers, broadcasters and distributors all eager to protect their investments by maintaining as much control as possible over creations for as long as possible against the public interest in ensuring broad and affordable access to information and creativity.
Mark Perry – University of Western Ontario
The Lawyers Weekly, Technological Protection Measures aimed at preserving Online Copyright
Updates…
in cra-briefings40 · June 30, 2007
WIPO INTERGOVERNMENTAL COMMITTEE
The General Assembly meeting of WIPO was held in Geneva from September 26th to October 3rd. A number of issues were discussed there that have an impact on artists and traditional knowledge in the international arena. It was agreed, for example, to accelerate the schedule of meetings of the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC) in order to achieve tangible results from its work. The Assembly also pointed to the Voluntary fund that continues to finance the participation of accredited observers from indigenous and local communities. For more information on the discussions please see WIPO press release 462 at www.wipo.org
BROADCASTING RIGHTS AT WIPO
WIPO has agreed to convene a diplomatic conference to finalize a treaty addressing the the rights of broadcasters in the digital age. The conference will take place next November 19th to December 7th. The object will be to conclude a treaty that addresses protections for the rights of broadcasting and cablecasting organizations. Lead up to this meeting, two special sessions of the standing committee on Copyright and Related Rights will be held in January and June 2007. The proposal for the conference can be found in WIPO document SCRR/15/2 at www.wipo.org. For more information on these meeting see WIPO press release 460.
SONY TO LAUNCH AN E-BOOKSTORE
Sony has indicated that it will launch an e-bookstore that will carry about 10,000 titles initially, including those published by Harper Collins and Simon and Schuster. The e-books will sell for approximately 25% less than their paperbacked counterparts. However, readers who would like to take advantage of this service will have to purchase Sony’s e-book reader that retails for approximately $350 US. However, this e-book reader differs from others readers that have been marketed in the past. It is not backlit, meaning that readers will not have to deal with a glaring screen, but rather uses external light sources (e.g. the sun or a table lamp) to make the text visible. For more information on this initiative see www.tinyurl.com/re5o6
RUSSIA TO TAKE ACTION AGAINST ALLOFMP3
In our Focus on Russia (Briefings #*), we reported on a service called AllofMP3 that was allowing virtually limitless downloads of music at a nominal price using a loophole in Russian law. Following pressure from the United States, which indicated it would oppose Russia’s entry into the World Trade Organization on the basis that it is unable to control intellectual property protection within its own boarders, the Russian parliament has taken steps which could lead to a shut down of this service. A new law was recently introduced in the Russian parliament that provides for up to five years in prison for copyright violators. Despite the probability of this becoming law, critics are skeptical that it will ever be utilized much less become a key tool for copyright enforcement. For more information on this development see www.arstechnica.com
ACTIVITY AT THE CANADIAN COPYIGHT BOARD
It has been a busy fall for the Canadian Copyright Board. In September the Board heard requests for an alteration in the way music labels and publishers share revenue generated from on-line music. CMRRA and SODRAC proposed that Publishers be paid a rate of 15% of revenues or a maximum of $0.10 per track where music is purchased on line, 8% of gross revenues where the music is purchased through a subscription service, and 5.8% of gross revenues for on demand streaming services. In October, the board heard the latest application from the Canadian Private Copying Collective, which will determine the appropriate blank media tariffs for the period 2005 to 2007. The Copyright Board has also issued a tariff for the Neighbouring Rights Collective of Canada for the use and supply of background music. Issued in November of this year, it is the NRCC’s frist tariff. More information on these proceedings can be found at www.cb-cda.gc.ca
Alliance Activities….
in cra-briefings40 · June 30, 2007
INCD MEETINGS AND COPYRIGHT
Alliance Steering Committee member Mireille Gagné attended the annual meeting of the International Network on Cultural Diversity (INCD) in Rio de Janeiro November 23-25. As is the custom, the meeting was timed to coincide with the annual gathering of culture ministers in the International Network for Cultural Policy (INCP). What follows is Mme. Gagné’s report.
Dans le cadre des réunions du RIPC, le gouvernement hôte, le Brésil, voulait examiner la question de la rigidité du système du copyright et voir en quel sens cela pouvait être un défi pour la diversité culturelle.
Contrairement aux autres années, le partenaire du RIPC représentant la société civile, le RIDC, n’a pu adopter cette thématique pour sa rencontre annuelle. Le RIDC a rejeté cette thématique d’une part, parce que plusieurs de ses membres ont manifesté un soutien très fort envers le copyright et qu’il était essentiel pour la diversité culturelle et d’autre part, l’opinion contraire a été également entendue i.e. que le copyright constituait un réel frein à la diversité culturelle. Face à ces opinions contradictoires entre les membres, le RIDC a donc été obligé de rejeter cette thématique pour sa rencontre.
Il faut dire que le RIPC était également inquiet d’aborder cette discussion. D’une part, les gouvernements étaient aussi divisés que l’étaient les membres du RIDC. Chacun affirmait ses positions très fortement. D’autre part, la compétence sur le copyright, y inclus les lois et les politiques, ne relève pas toujours du ministère de la culture et ce, dans plusieurs pays membres du RIPC.
Le Gouvernement a entrepris une enquête sur les politiques des pays membres du RIPC portant sur le copyright et la diversité culturelle. Dans cette enquête, on y analyse les impacts du copyright à l’heure du monde numérique et la situation au plan de la gestion collective. Les résultats de cette enquête ont été distribués au sein du RIPC, mais ils n’ont pas été encore rendus accessibles au public. Le Gouvernement brésilien maintient avec détermination le processus de la révision de sa politique sur le copyright et en a parlé à tous les événements réunissant le RIPC et le RIDC, et même au Forum culturel mondial et au Forum sur l’économie créative, présenté par le PNUD. À cette dernière rencontre, le Gouvernement a fait connaître les résultats d’une étude locale sur les petites et moyennes entreprises, étude qui démontrait que l’accès aux biens patentés constituait un frein à la croissance de cette portion de l’économie brésilienne. Le Ministre Gil a défendu avec ardeur l’importance de l’accès libre du public aux savoirs, et qu’à titre d’artiste, il appuyait cette plus grande flexibilité dans le système du copyright.
La Déclaration de Rio du RIPC couvre les éléments suivants sur ces questions :
▪ l’étude du Gouvernement brésilien démontre avec évidence la complexité de ces questions;
▪ les ministres ont débattu sur différents éléments qui touchent la diversité culturelle, y inclus les défis lancés par les nouvelles technologies et le copyright;
▪ même si la responsabilité pour le copyright ne relève pas toujours des ministres de la culture, il est très important que les ministres du RIPC parlent des impacts de cette question sur le secteur culturel et de sa pertinence pour l’établissement de politiques culturelles; et
▪ les ministres ont reconnu les défis auxquels font face les pays en ce qui a trait au copyright, en particulier les pays en développement, et ils ont apprécié la chance qu’ils ont eu de parler ouvertement de toutes ces questions.
Le RIPC a décidé de mettre sur pied un groupe volontaire d’experts qui échangeraient, de façon électronique, afin de pouvoir continuer le débat sur ces questions. Le Brésil a annoncé qu’il serait prêt à recevoir ce groupe durant la seconde moitié de 2007.
International Issues….
in cra-briefings40 · June 30, 2007
LENGTHIER SENTENCES FOR PIRACY
Music Week has reported that Members of the European Parliament will examine implementing tighter criminal penalties against organized music piracy. Currently the stiffest penalties for are to be found in Britain, which provides a maximum prison sentence of 10 years. In other EU countries maximum penalties for similar crimes may be only one or two years. The general view is that the European Parliament will recommend raising these lower sentences. www.musicweek.com
Further evidence that the European Union is taking intellectual property issues seriously is seen in the terms and conditions the Union has imposed on Bulgaria and Romania who will be admitted for membership effective January 1, 2007. Both countries face a number of strict requirements including upgrading their protection for intellectual property and reducing traffic in pirated goods across their boarders. For more information on the criteria for admission see www.billboard.biz
PUBLISHERS TO LAUNCH AUTOMATED PERMISSION SYSTEM
In an initiative spearheaded by the World Newspaper Association, a group of organizations including the European Publishers Council have banded together to launch an online permissions and rights clearance system. The system would implement a standard way of codifying permission. It is proposed that this permissions system would allow the end user to display material for a limited time or purchase a copy of the material for use upon paying a predetermined royalty. For more information on this initiative see www.wan-press.org
PIRATE PARTY FAILS TO MAKE ELECTION IN-ROADS
Sweden’s Pirate Party, supporters of P2P sharing and the creation of an online darknet, failed to make substantial inroads in Sweden’s recent national elections. Items on the party’s platform included a five-year limitation on commercial copyright, and called for the abolition of the patent system. The party failed to get 1% of the vote which would have given them access to government financial assistance in printing ballots and funding staff in the next national election. According to party leader Rick Falkvinge the party obtained approximately 33,000 votes. More information on the Pirate Party’s election experience can be found at www.wired.com
EUROPEAN UNION PLAN FOR INNOVATION
The European Union has tabled a ten-point plan for fostering innovation in the European Community. The plan, which will be discussed at an informal summit of European Union leaders in Lahti Finland on October 20th, includes several items related to copyright. Item #7 calls for increased protection of intellectual property rights, and Item #8 calls for promoting digital products and services and an initiative on copyright levies. More information on this proposal can be found at www.eurpoa.org Europa Newsletter #89.
COLLECTIVE LICENSING DEVELOPING IN CHINA
China’s National Copyright Administration recently announced that China’s Karaoke clubs would be required to pay a fee of $1.50 US per room per day in music and video copyright fees. This fee was based on a request filed by the Music Copyright Society of China and the China Audio-Video Collective Management Association. After reviewing public commentary and criticism, the government has now implemented the fee. This fee structure is complemented by a database of approved karaoke recordings that has been established by the Chinese Ministry of Culture. This system will allow karaoke operations to monitor the titles and frequency of tracks selected by users. The system will charge a fee of 12 Yuan per song as royalties to record companies and musicians. It is thought that this database will enable copyright holders to realize approximately eight million Yuan annually in royalties. For more information on these developments see CISAC Headlines issue 123. For more information see: www.cisac.org and www.china.org.ca.
Litigation…
in cra-briefings40 · June 30, 2007
HEATHER ROBERTSON AND THE SUPREMES
In October the Supreme Court of Canada handed down its decision in a case brought by Heather Robertson, a freelance writer, against Thompson Corporation and others. The case arose from the appearance of articles Ms. Robertson had written for the Globe and Mail in the Globe’’s on-line databases and in a CD-Rom version. Ms. Robertson argued that, as a freelancer, she had only agreed to the publication of her materials in the physical paper, not in any digital forms. This case was brought as a class action, meaning that Ms. Robertson represents all freelance writers who had worked for the Globe and Mail and whose works had been included in its on-line databases and in its CD-Rom products.
The case considered whether copyright in the individual works written by Ms. Robertson may have been infringed or whether the newspaper, as the copyright owner in the collective work, was simply exercising its own copyright rights.
Five Judges of the Court entered the majority decision which determined that the newspaper should have gotten the consent of the authors before including their works in on-line databases. The majority decision states, “The central issue on this appeal is whether newspaper publishers are entitled as a matter of law to republish in electronic databases freelance articles they have acquired for publication in their newspapers – without compensation to authors and without their consent. In our view they are not.” However, the majority also held that reproduction of the material in a CD-Rom version, where the integrity of the original publication was maintained, was an acceptable exercise by the publisher in view of its own copyright rights. For the majority of the Court, the issue then became whether or not the freelancers had impliedly consented to the use of their material in electronic databases. The Supreme Court did not determine this point, so the case will now go back to the trial division to determine whether or not the freelance writers had implicitly licensed the Globe and Mail to use their material in their on-line databases.
The four judges who gave the minority decision would have determined that the newspaper was within its rights as copyright owner of the collective work in engaging in the digital reproduction in both on-line databases and CD-Rom format.
There are many subtle issues in the case which will continue to generate much discussion among copyright scholars and artists alike. For those who are interested, you can find the Robertson decision at the Supreme Court of Canada website www.scc-csc.gc.ca or obtain more information from the Professional Writers Association of Canada www.pwac.ca
VIDEO BLOGGER IN U.S. FEDERAL PRISON
In our last Briefings we reported that 24-year-old video blogger and freelance journalist, Josh Wolf, had been jailed in the United States for contempt of court when he refused to hand over unpublished material to the US grand jury. The United States appeals court has heard the matter and refused to overturn the contempt decision of the lower court. For more information on this situation see http://freejosh.pbwiki.com.
ANOTHER P2P SERVICE FOUND GUILTY
Federal District Court Judge Stephen Wilson has found Streamcast Networks, the distributor of the popular P2P software Morpheus, guilty of massive copyright infringement. The court held that Streamcast built a business that relied on copyright infringement and found that “In the record before the Court, the evidence of Streamcast’s unlawful intent is overwhelming”. The court made this decision on an application for summary judgment, which means that the evidence presented was so substantial that no legitimate defence could have been raised at trial. Streamcast has indicated that it may appeal this decision. For more information on this decision please see www.tinyurl.com/h6kzz
LIMEWIRE FIGHTS BACK
In the last Briefings, we reported that Limewire, another American P2P service, had been sued by US record labels and the RIAA. In September, Limewire filed a countersuit against the RIAA alleging that the RIAA conspired to drive file-sharing companies out of business, and made licenses for the legal use of copyright protected works unreasonably restrictive. We will continue to follow this case. For more information please see http://online.wsj.com or www.news.com.com
GOOGLE FACING FINES IN BELGIUM
In a case brought by Copipress, the organization that manages copyright for French and German language newspapers in Belgium, the court has ruled that Google is not permitted to reproduce snippets of newspaper articles for its news amalgamation service. As part of its order, the court required Google to post the decision on its Belgian news site and warned that failure to do so would result in fines of 500,000 € daily. Google refused to post the order and has appealed the fine to the Court of Appeals which has found that both the order to post the judgment and the imposition of the fine were reasonable. The Court of Appeal heard an appeal on the merits of the case in full in November, however, indicated that its decision will not be rendered until 2007. For more information on this case see www.news.com.com
Global Issues...
in cra-briefings40 · June 30, 2007
FOCUS ON THE UNITED KINGDOM
A lot has been happening in the United Kingdom recently in relation to protection of artists’ rights, the development of young talent and the need for copyright reform. Copyright law in the UK is similar to Canada’s and the issues relating to arts funding and copyright reform are familiar, too.
Several initiatives and agreements are offered new financial incentive to artists. Recently CISAC (International Confederation of Societies of Artists and composers) reported that the Performing Rights Society’s Foundation for New Music has set up a British Music Abroad program, designed to assist UK-based artists develop international markets for their work. The fund, which is of an unspecified limit, will cover travel and accommodation. Applicants to the program will be assessed on a case-by-case basis and will be expected to contribute 10% of the final cost.
In addition, recording labels in the United Kingdom have reached an agreement with artists which determines how much they will get paid each time a song is downloaded from the Internet. This agreement indicates that artists will receive 8% of these revenues for the next three years and 6.5% of revenues from on-demand on-line music (e.g. streaming). This voluntary settlement reflects considerably less than the 12% revenues artists were initially seeking. For more information on this settlement see http://online.wsj.articles or www.news.com.com
Despite these strides, many still see the copyright law as being out of step with modern times. Recent calls for amendments to the current system have been joined by a powerful new voice. The British Library has called for reforms to copyright law that would fully recognize the position of digital content. According to Lynne Brindley CEO of the British Library, “Unless there is serious updating of copyright law to recognize the changing technology environment, the law becomes an ass”. The specifics that the library has asked be addressed include the ability of DRM to override exceptions to the law, and the accessibility orphaned works. For more information on this statement please see www.cnetnews.com or www.zdnet.uk.com