more American than America itself

On Tuesday Michael Geist described a list of nations that chose a more lenient approach to digital locks than our current government has proposed with Bill C-11. On Wednesday he followed with a description of the wishlist of the Canadian Independent Music Association (CIMA) with regards to that same bill. Geist writes: “the music industry demands make SOPA look like some minor tinkering with the law.”

Perhaps not surprisingly, CIMA is not pleased with the proposed expansion of fair dealing to include parody and satire. In their submission concerning Bill C-11, they write: “It is unclear how ‘parody or satire’ made for commercial purposes will be treated under this exception, nor is it clear who would retain ownership for this material.”

Commercial undertakings have legitimate recourse to fair dealing. Success or failure will rest upon the outcome of the multi-facetted framework of inquiry set by the Supreme Court of Canada in 2004, via CCH Canadian. That this may be ‘unclear’ is simply a consequence of the fact that parody and satire are not yet exceptions in Canadian law and thus there are no past cases to refer to. This is hardly a good reason to deny the introduction of the exceptions themselves. With respect to CIMA’s second point, fair dealing is not a mandated transfer of copyright. The creator who brings a parody or satire to fruition, through the use of existing protected material, has copyright in the new creation. The copyright holder of the source material continues to enjoy the original privilege.

CIMA’s vision of what Canadian copyright law should look like far exceeds American demands. Even the original content of Bill C-11 was in excess of American treatment of digital locks. Together they conjure up a dreary reminder of Canada’s first Prime Minister’s efforts to create in Canada something more than just an extension of Britain on this side of the Atlantic. Sir John A. Macdonald envisioned a nation “more British than Britain itself.” Macdonald’s protectionist policies were in aid of promoting trade with Britain and protecting the institutions that had developed in the wake of the fur trade.* Then, as perhaps now, the focus was on exploiting Canada’s natural resources.

Yet, in this millennium, there is another dimension of American policy that is worth emulating. In Geist’s listing of countries, he also reminds us that Israel has avoided the issue of digital locks entirely. This may not seem a nod to American policy. But, contemporary Israeli policy decisions bear a striking resemblance to American intellectual property policies of its antebellum days. Via a concerted effort to democratize creativity, the United States made a remarkable journey from a predominantly agrarian society to a world leader in intellectual development in less than one century. Israel seems bent on a similar journey; in 2007 it not only avoided introducing protection of digital locks into domestic law but expanded the rigidity of fair dealing into the elasticity of fair use.  What struck me was the willingness of Israeli legislators to take the best that American law can offer and avoid the worst.

Canadian and Israeli copyright development make for intriguing comparison. In part because of a common history between the two countries; each stemmed from a British antecedent, came under the closer influence of the United States, and kept a bi-jural ancestry of copyright law. And both countries had a “fair use moment” where their Supreme Courts introduced a multi-facetted inquiry for fair dealing, similar to that followed in American law for fair use.  And, under the circumstances of each case, the Justices sought to limit the influence of commercial concern. Notably, the Israeli Supreme Court stated:

The use may be found to be fair in light of its purpose and character, even if those are commercially oriented, given that the use is found to promote important social values.… This is a product of our modern world, in which most of the activities that promote social values cannot be disconnected from financial motives. Prohibiting any commercial use of a protected work will discourage activities that society would have liked to encourage.**

With multiple Supreme Court decisions due this spring, perhaps Canada will see further development of fair dealing, to the benefit of commercial use of protected work.

I am enjoying comparing Canadian and Israeli developments in copyright; a  working paper is available through the Program on Information Justice and Intellectual Property at the Washington College of Law at American University. Comments on the paper would be most welcome.

* David Ralph Spencer, “Rhymes and Reasons: Canadian Victorian Labour Journalism and the Oral Tradition,” in Journal of Communication Inquiry (1992).

** CA 2687/92 Geva v. Walt Disney Company 48(1) PD 251 [1993]

Fair Use – the essential innovation

I usually focus on the creative development possible through fair dealing or fair use; those downstream uses of copyrighted work that facilitate research and learning, or, transformative uses that produce new works. However, there is another element of individual use that deserves attention. The arguably legitimate activities of time and format shifting carried out through private copying. We should not forget that economic prosperity, on a national scale, can be facilitated through these individual activities.

Last week I drew attention to the work of Consumers International (CI); I noted that their current IP Watchlist indicates that Malaysia, Japan, and the United Kingdom are considering implementing fair use within their domestic copyright laws. In a separate report, Access to Knowledge for Consumers – Reports of Campaigns and Research 2008-2010, is a chapter concerning Israeli copyright law and its implementation of fair use in 2007. The chapter, written by Dr. Nimrod Kozlovski, Jonathan J. Klinger, Uria Yarkoni and Nati Davidi, gives an apt summary of the history of Israeli copyright law and related ongoing activity.

The authors position fair use as part and parcel of Israel’s innovative potential. The advantage of protecting consumer rights is that individuals have the certainty to engage in business with others with productive gain for all:

We can see that in a series of cases, the Israeli courts favoured the free markets and competition over property rights, with the understanding that as innovation comes, there will be more welfare (p.177).

In terms of Israel’s progress, fair use is considered essential to achieve free markets and free competition.

This is a perspective that Ireland is now willing to consider. As was reported by John Kennedy on May 9, 2011, the Department of Enterprise, Trade and Innovation is seeking submissions concerning copyright. According to the department’s website:

There is a perception in certain industries that national copyright legislation does not cater well for the digital environment and actually creates barriers to innovation and the development of new business models.

The terms of reference for this review of copyright include, “Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.” Interestingly enough, the terms also state that if suitable changes are not possible under the current constraints of EU copyright directives, Ireland will make recommendations for changes to those EU directives.

The United States is the foremost example of the creative development that can be fostered by maintaining flexible limits on copyright’s mandate. A point exemplified and emphasized by Google; two years ago the company called on the U.K. government to adopt fair use, and, two months ago followed it up by giving that same government a submission detailing the importance of fair use:

[Fair Use’s] flexibility has enabled it to protect both creative cultural output, such as parody or news commentary, and technological innovation built on digital copying. … Fair use is regularly referred to as the key tool by which the US fosters innovation … And the proof is in the pudding: no country in the world can compete with the U.S. for the most innovative search technologies, social networks, video and music hosting platform, and for the sheer generation of the most jobs and wealth in the Internet domain. If one is looking for evidence of how innovation succeeds, the best way is to look at those places where innovation has succeeded (see Section 4.2).

A more in-depth analysis of fair use as a catalyst for American innovation can be found in Fair Use As Innovation Policy (2008), by Fred von Lohmann (Senior Intellectual Property Attorney with the Electronic Frontier Foundation (EFF) and Lecturer at Stanford Law School.) He observes that the more noble aspects of unauthorized use of copyrighted material are easily and often defended – i.e., fair use preserves freedom of expression and fair use upholds the time-honoured process of creating something new by building on something old. But Lohmann focuses on the act of private copying with the reminder that until 1998 the U.S. followed a mantra of “innovate broadly first, regulate narrowly later (p.25)”. Those innovations took form in popular consumer technologies which depended on the legitimacy of allowing individuals to engage in private copying. Lohmann concludes: “From this observation grows the corollary that the fair use doctrine may well be playing an increasingly critical role in U.S. innovation policy (p.36).”

(And to naysayers who will complain that fair use is thus a subsidy to the high-tech sector paid for by content providers, Lohmann gives an extensive four-part rebuttal.)

It seems likely that the Federal Government of Canada will reintroduce Bill C-32 in the near future. Much has been made of the fact that Canadian copyright law has not been significantly altered since 1997. Rather than implementing measures deemed suitable for 1998, perhaps the government will look forward and position Canada as an early adopter of a proven digital economy catalyst. All that is needed is a little unshackled, innovative thinking.

More input invited for Bill C-32

The Legislative Committee on Bill C-32 is soliciting further input from Canadians. In a news release dated to December 6, 2010, Canadians are invited to submit up to 10 pages of thought (if your thinking runs in the 5-10 page range, please include a one page executive summary.) The committee requested that if change is proposed, draft language would be helpful.

I suspect many will offer up suitable language; instead, I take this opportunity to draw attention to the highly toxic atmosphere that emerged in the wake of Bill C-32. Far beyond the text of copyright law itself, what will cripple Canada’s creative prospects is the enmity that sits between copyright representative associations and educational institutions.

In my brief I emphasize some of the points I’ve raised in this blog: the securing of writers’ income from educational uses by the Federal Court of Appeal in July 2010, the campaign of misinformation concerning the inclusion of “education” to fair dealing, the direction taken by Israel in terms of fair use and best practices, and the wisdom of Northrop Frye.

If you wish to contribute to the proceedings, submissions must be made by January 31, 2011 and sent to: CC32@parl.gc.ca

A Road Less Traveled

Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.

[from The Road Not Taken — Robert Frost (1874–1963)]

As Canada sits poised to alter the Copyright Act, Robert Frost’s famous lines seem more than appropriate. By Frost’s own admission this literary gem is “tricky” (fortunately, analysis is readily available.) But I will take blissful refuge in the realm of amateur-poetry-enthusiast, and just enjoy the poem. For even to an amateur, the ending is clear enough — a difference happened.

Following second reading of Bill C-32, debate/rhetoric is flowing on and around Parliament Hill. Artists express their wish for better financial remuneration via new media levies. Writers remain anxious over the inclusion of education as a consideration under fair dealing. And many Canadians continue to have concerns over the priority placed upon technological measures (i.e. digital locks). Undaunted, the Minister of Canadian Heritage James Moore insists that the bill strikes the right balance for the country as a whole. This week, writing for the Globe and Mail, Omar El Akkad and Susan Krashinsky indicate that Moore’s counterpart, Minister of Industry Tony Clement, will announce more details on November 22.

In terms of digital locks, the best case scenario is that Bill C-32 will be amended so that circumventing a digital lock will be considered infringement, only if the use is an infringing one. A poor compromise: to exercise a legitimate right of fair dealing, Canadians must first break into a work. It was possibly too much to hope that our government would choose to ignore the subject of locks, even though there is no need for government involvement in the first place. After all it is the prerogative of any individual to lock up his or her work if so desired. And if locking the material proves deleterious (i.e. it alienates a customer base or reduces circulation of a work), that same individual has the freedom to reconsider the use of locks. Government sanction of the locks is irrelevant to the matter of choice.

My fanciful world will no doubt be written off as naive: what about our international standing? According to Minister Moore, we must “get off the watch list.” Upon that listing of most-disfavoured nations, more formally known as the U.S. Special 301 Priority Watch List, Canada has permanent residency. It seems we cannot show our face in polite-international-society because of our delay in embracing the WIPO Internet Treaties of 1996.

But the truth is a happy contradiction. Nearly three years ago, Professor Ariel Katz of the University of Toronto Faculty of Law wrote about impending changes to Israeli copyright law. He described the similarities between Canada and Israel with respect to copyright:

Copyright lobbyists (as well as government officials) often argue that Canada must modernize its copyright law lest it stay behind on the technological and cultural front. A little Israeli perspective could help, especially when one recalls that Canada has overhauled its copyright act a few times over years, with significant reforms only a decade ago. If you had to name a developed country that unquestionably needed to modernize its copyright legislation, Israel was that country. The patchwork of statutes based on the UK 1911 act surely needed to be replaced with a modern statute. Nevertheless, despite its antiquated legislative framework, Israel has emerged as a technological and creative powerhouse. Being the world’s 100th smallest country, with less than 1/1000th of the world’s population, Israel has the world’s second highest per capita of new books; it produces more scientific papers per capita than any other nation by a large margin – 109 per 10,000 people. In proportion to its population, Israel has the largest number of startup companies in the world. In absolute terms, Israel has the largest number of startup companies than any other country in the world, except the U.S.

Katz noted a number of promising features in the proposed Israeli act including their progression from a system of fair dealing to a system of fair use. But what caught my eye was the matter of anti-circumvention. Although Canada and Israel are both signatories to the 1996 WIPO Internet Treaties which require members to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used by right holders to exercise their rights, neither Israel nor Canada have ratified the treaties. Yet as Katz observed:

Not ratifying the Treaties has not prevented Israel from complying with their requirement to enact a “making available” right. But interestingly, Israel’s brand new copyright act contains no anticircumvention provisions. The Israeli government has taken the view that at the moment, anticircumvention legislation does not seem to be urgently necessary and Israel would benefit from further studying the need and potential effects of such legislation.

So how did Israel fare? After their revised copyright law took effect in 2008, Israel continued to draw the ire of the United States. But Israel held its ground, and in early 2010 negotiated its way out of disgrace.

That negotiation is acknowledged in a 2010 USTR report on trade barriers. In excerpts provided by the Program on Information Justice and Intellectual Property (American University), the official word is:

The United States and Israel reached an understanding on February 18, 2010 that resolves several longstanding issues with Israel’s intellectual property rights … Although not part of the new understanding, Israel has also signaled a new willingness to make progress on other IPR issues of concern, such as meeting the core requirements of … the WIPO “Internet” Treaties. … The United States welcomes this step, and encourages Israel to proceed with full accession to, and implementation of, the WIPO Internet Treaties.

So much for official words; for actions, Israel is not yet a contracting party to the WIPO Internet Treaties. The question now is, where will Israel travel in the next three years?

Update May 4, 2011: Israel has been reinstated to the US Special 301 Priority Watch List. According to this year’s report from the Office of the United States Trade Representative, “While Israel has taken some steps towards implementing an Understanding on IPR it concluded with the United States in 2010, further action is needed.” Interestingly though, that Understanding was set upon Israel’s patent regime, not Israel’s lack of adoption of the WIPO Internet treaties.