things to read

Two new volumes relating to intellectual property are now available.

1) The United States’ annual Special 301 report, a charade of evaluation of intellectual property enforcement, was released on May 1. (As I have written before, this process has no international validity.) For those interested, in this year’s report Canada has moved up one level on the scale of American disgrace; we are on the  “Watch List” instead of our previous standing of “Priority Watch List.”

The American government is pleased with Canada’s Copyright Modernization Act (replete as it was with protection from circumvention of digital locks) and the introduction of legislation “to strengthen IPR enforcement, which included provisions that would provide ex officio authority to Canadian customs officials to seize pirated and counterfeit goods at the border (p.46)”. However, concerns still exist with respect to Canadian patenting practices, including “the impact of the heightened utility requirements for patents that Canadian courts have been adopting recently (p.46).” (I wrote about our courts’ reluctance to uphold a patent that did not live up to expectations; see here.)

2) Much more interesting is the release of a new book by University of Ottawa Press. The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law is available for purchase and for free download via a Creative Commons license. Michael Geist served as editor; he envisioned the collection and ensured its realization. The book features Geist’s work along with contributions from thirteen other scholars, including me (see here for some details). It was a pleasure to participate in such a well-executed project. Congratulations must go to Geist and his entire team of students, editors, reviewers and the staff at University of Ottawa Press.

Canadian copyright shines

As readers may know, each year the Office of the United States Trade Representative (USTR) compiles assessments of intellectual property regimes around the world and places nations found lacking in their protection of (American) intellectual property on a ‘301’ list of varying degrees of disgrace. This process of judging nations is of questionable objectivity and has no international validity. Canada, having cemented free trade agreements with the United States decades earlier, can ignore its annual disgrace. Whereas those countries who sought trade agreements in recent years, or seek aid from the United States, have less independence with their domestic intellectual property laws. The USTR does not let niceties such as compassion enter discussion; as Michael Geist wrote last year:

…  Perhaps the most shameful inclusion in this year’s report are a series of countries whose primary fault is being poor.  For example, the list includes Guatemala, a small country the size of Tennessee with a per capita GDP of just  over $5,000. It is coming out of an economic depression that had a severe impact on rural income. … In response to past pressures and the conclusion of a trade agreement, Guatemala amended its copyright laws, toughened penalties, created a special IP prosecutor, and increased IP enforcement within the government. Yet the USTR included it with the following comment: ‘However, pirated and counterfeit goods continue to be widely available in Guatemala, and enforcement efforts are hampered by limited resources and the need for better coordination among all enforcement agencies.’  Indeed, there is no obvious reason for inclusion on the Special 301 list other than an attempt to lobby a country that ranks 123rd worldwide in per capita GDP to spend even more money enforcing US intellectual property rights rather than on education, health care or infrastructure, the sorts of expenditures that might improve the country’s overall economy and ultimately lead to reduced rates of infringement.

The Program on Information Justice and Intellectual Property (PIJIP) at American University’s Washington College of Law submitted comments upon the 2013 301 process, reminding the USTR that by their own language in the Trans-Pacific Partnership talks: “A robust copyright framework ensures that authors and creators are respected, investments (both intellectual and financial) are promoted, that limitations and exceptions provide an appropriate balance, and that enforcement measures are effective (p.4).”

PIJIP proposes, “the 301 Process should examine limitations and exceptions just as it does other aspects of foreign law. Again, as emphasized by the TPP: “An important part of the copyright ecosystem is the limitations or exceptions placed on the exercise of exclusive rights in certain circumstances. In the United States, for example, consumers and businesses rely on a range of exceptions and limitations, such as fair use, in their businesses and daily lives.” As such, the 301 report should also identify best practices which “reflect the U.S. commitment to balance and describe the benefits of flexible limitations and exceptions similar to U.S. fair use (p.5).”

Enter Canada. Of the ten practices identified under Copyright in the Digital Age and  Remedies and Enforcement (pages 6 and 7), with reference to the amendments implemented in Bill C-11, Canada serves as an example for six practices:

Copyright in the Digital Environment

• Adoption of “notice and notice” systems for limiting ISP liability that do not rely on censorship of online material without a court order, including in Chile and Canada.
  
• Implementing open ended, flexible exceptions that can adapt to technology and use changes, including in Korea, Israel, Philippines, and Malaysia, and are under consideration in countries including Australia.
  
• Offering flexible and open ended limitations and exceptions to liability [such as in Canada].
  
• Protecting free expression by promoting exceptions to copyright for non-commercial user-generated content, such as in Canada.
  
• Promoting exceptions to copyright for temporary reproductions for technological purposes (e.g. cache and RAM copies on internet), such as in Canada.
  
• Encouraging protections for cross border sharing of copyrighted works created under an exception for visually impaired, as proposed by the World Blind Union.

Remedies and Enforcement

• Limiting criminal remedies to infringing conduct that is both willful, for profit and on a commercial scale as is proposed for the U.S. under the Aaron Swartz Act and as exist in Canada.
• Promoting restrictions on damages to ensure proportionality to harm to rights owner, such as in Canada.
  
• Promoting safeguards on internet enforcement policies to avoid threats to free expression, business innovation and free trade. 
• Promoting explicit human rights checks and balances on intellectual property enforcement measures, such as would be required under the U.S. due process guarantees.

PIJIP took the novel step of citing countries lacking in due attention to limitations and exceptions, and proposed that the USTR should do the same. Canada made an appearance on this list as well; fortunately, we do not have too much to fix:

The United States should be concerned that Canada’s exception for the incidental inclusion of a work in other work does not protect deliberate incidental inclusion. Canada should be applauded for its recent court decisions that have made the interpretation of their fair dealing clause much more flexible and also for its new and innovative copyright reform that has expanded users rights and protections (p.12).

PIJIPs comments are supported by a number of individuals and organizations including Electronic Frontier Foundation and Public Knowledge.

A better list

Earlier this week Michael Geist reported that Canada continues its residency on the Special 301 Priority Watch List. This annual report issued by the Office of the United States Trade Representative (USTR) is an assessment of trading partners whose approach to intellectual property rights do not mirror those of vested American interests.**

Mercifully, a better list recently appeared from Consumers International. This global alliance of 220 consumer groups takes as its lodestar “to put the rights of consumers at the heart of decision making.” Founded in 1960, Consumers International expands its ambit to meet the changing face of consumer industries. The IP Watchlist, “assesses the fairness of the world’s intellectual property laws and enforcement practices from an important yet under-represented perspective: that of the ordinary consumer.” The first IP Watchlist was published in 2009. All yearly reports, and the 2011 individual surveys of participating countries, are freely available from the Access To Knowledge network of Consumers International.

Canada was first assessed in 2010 and received a C. The 2011 report shows a modest improvement; Canada is now rated as B-. Moreover, the report positioned Canada at the forefront of enhancing consumer creativity through Bill C-32:

The explosion of creativity from ordinary consumers commenting and building upon works from pop culture, and freely sharing their creations with the world, has been one of the defining cultural phenomena of this century… So, does copyright law support the participation of consumers in this new democratic art form? The answer, regrettably, is a resounding ‘no’, with only a handful of countries offering any consumers any legal protection. There are, however, early signs that this is beginning to be seen as a legal anachronism. In particular, a new provision proposed for Canadian law would legalise the creation of noncommercial derivative works that do not financially damage the original copyright owner.

Each year Consumers International identify the best and worst practices in the application of copyright laws. In the inaugural 2009 issue, technological protection measures (TPMs) were the first point of discussion:

When copyright material is protected by a TPM, no judge – in fact, no human being at all – determines whether or not the restrictions enforced by the TPM conform to copyright law. [Even if the purpose is for fair dealing] … in many countries the consumer cannot circumvent that restriction without breaking the law.

Despite being a leader in promoting TPMs, by virtue of its inclusion of fair use, the United States faired well in the first report:

The main reason why the United States is placed highly in the IP Watch List as a country that supports the interests of consumers is that its copyright law includes a broad exception for the “fair use” of copyright material. In most other jurisdictions, piecemeal exceptions exist for the use of copyright material for particular purposes such as research, criticism and reporting current news. In contrast, a broad fair use exception allows copyright material to be used for any purpose, so long as it satisfies a balancing test that includes factors such as whether the use is commercial or non-commercial, and its effect on the market for the copyrighted work.

Fair use was the first item of discussion in the 2010 best practices, with another favourable review of American law. A particular concern was addressed – does fair use comply with international law? Implicitly this means that exceptions to copyright must meet the “three-step test” laid out in the Berne Convention. Exceptions must (i) be confined to specific cases; (ii) not conflict with the normal exploitation of a work; and (iii) not unreasonably prejudice the legitimate interests of a copyright holder. CI wrote:

Most countries have implemented the three-step test by enacting … exceptions for specific purposes or specific classes of consumer, such as the educational, library and disability exceptions … But there is an alternative approach, first and most famously found in the copyright law of the United States, which stretches the three-step test almost to its limit. It allows for any use of a copyrighted work that can be described as ‘fair’, considering the purpose and character of the use, the nature of the work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the work. There are many uses of copyright materials that are allowed under US law as ‘fair use’, that would not be allowed under the more specific exceptions of other countries.

In the 2011 report, CI once again speaks approvingly of fair use and suggests that more countries will follow in these (positive) American footsteps:

Malaysia, Japan and the United Kingdom are also reviewing their respective copyright laws, and considering the merits of adding broad US-style ‘fair use’ rights. This is an overdue trend that Consumers International strongly welcomes.

** Note: The curiously-named International Intellectual Property Alliance (IIPA) is a regular contributor of input to the USTR. The IIPA was not impressed with Bill C-32; their recommendation of Canada for 301 inclusion can be found here.