RSS FeedCBC and Copyright
Scott Tribe pointed out on his blog today that the CBC has implemented new copyright policies on its online news properties. As boingboing explains, the CBC has signed up with iCopyright, an American service which sells licences to digital content creators to allow them to re-post or re-publish CBC content for a monthly fee. Cory Doctorow points out that this is the same service that purports to sell readers of Associated Press content the ability to quote 5 or more words from AP stories.
As a business strategy, I think this is clearly going to be a spectacular failure. Any company large enough to pay $250/month to re-post a single article can also create its own original content at a lower cost. Consequently, I don’t imagine that the CBC will sell very many licenses.
Of course, selling licenses isn’t really the point of the new policy. The point is scare small, independent digital content creators from sourcing the CBC. As Doctrow observes:
The cherry on the cake? iCopyright offers a reward of up to $1,000,000 for snitching on bloggers who don’t pay Danegeld to Canada’s public broadcaster to quote the works they funded.
On top of that, the licensee must “agree not to criticize the CBC, the subject of the article, or its author.”
This, too, seems like an unsound business strategy to me. When bloggers link to or reference CBC’s online content, it is almost universally the practice of good bloggers to provide a link to the original content. This drives traffic to the CBC’s online properties both directly (through people clicking on the link) and indirectly (through the Google PageRank benefit which accrues from inbound links, causing CBC’s stories to achieve more favourable rankings in search results). The CBC seemed to acknowledge the important role that bloggers play in the online news ecosystem when it introduced features such as their “most blogged” content. Recently, these innovative social media features were removed; now they are being replaced with restrictive copyright policies that discourage bloggers from linking to CBC at all.
The CBC, like any other content provider, has a right to protect its intellectual property within the limits of copyright law. To the extent that other parties wish to re-publish the CBC’s content in full and without comment (by the way, good bloggers never do this anyway), the CBC has the right to dictate the terms and conditions.
However, as the Supreme Court made perspicuous in CCH Canada Ltd. v. Law Society of Upper Canada, there are limits on the scope of copyright protection. The Court is extremely clear on the point that fair dealing is not simply a defence to a claim by a copyright holder; it is a distinct right held by users of copyright material. In other words, “Any act falling within the fair dealing exception will not be an infringement of copyright [emphasis added].”
In determining whether the use of copyright material falls within the fair dealing exception, the court will look at six factors (I have provided short extracts from the case to explain each factor):
- The purpose of dealing.. “In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting”
- The Character of the Dealing. “If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing.”
- The Amount of the Dealing. “If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”
- Alternatives to the Dealing. “If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court.”
- The Nature of the Work. “Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work — one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.”
- Effect of the Dealing on the Work. “If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.”
On his site, Scott proposes three ways of circumventing the CBC’s iCopyright program. First, he proposes to paraphrase any material he uses from the CBC. Second, he says that he will seek out alternative sources that use more permissive copyright policies. Finally, he references a commenter on boingboing who suggests that one user can purchase a license and then every other user can link that original licensed use. I question the legality of the third option, as this would likely still constitute an infringement of the original work.
Not being a lawyer, I am prohibited from offering legal services or advice to anyone. Personally, though, I will continue to quote from and source CBC’s copyright material on my blog, without purchasing a license (as I did in this post). When I quote from CBC, I will link to the original source. I will also continue to ensure that any use I make of copyright material falls within the fair dealing exception by quoting minimally and supplementing quotations with my own original analysis, commentary, criticism, review, and research. It’s not at all clear to me why I would pay $250/month to exercise my existing legal rights, while also contracting out of my right to criticize the original source.
There is one thing that I will change as a result of CBC’s new iCopyright policy. From now on, whenever I link to CBC, I will use the the rel=”nofollow” construct. This attribute instructs search engines like Google not to index the link as part of its PageRank algorithm. Essentially, the links don’t help their destination sites to achieve higher rankings in search engines. I already use this construct when linking to sources such as the Conservative and Liberal parties (being a New Demcorat, I want to ensure that I’m not giving any advantage, however trivial, to my political opponents). From now on, CBC will not get the trivial benefit they enjoy in terms of search engine ranking when I link to them. This practice will continue until CBC adopts a more balanced and realistic approach to copyright.
With Parliament Suspended, Harper Proceeds with Secretive Treaty Negotiations
I’m very glad to see that the NDP is taking notice of the Harper government’s participation in the ongoing Anti-Counterfeiting Treaty Agreement (ACTA) negotiations. Despite a lack of transparency and public consultation, some controversial details of the proposed agreement have been leaked.
The proposed agreement would include a “three strikes” policy on suspected illegal downloading. Under this policy, users would have their internet access cut off after being accused of copyright violations three times, whether or not those allegations are true. In contrast to our constitutionally-entrenched presumption of innocence, the “three strikes” rule would allow rights holders and service providers to sanction users in the absence of any credible evidence or proof. It would create an untenable imbalance of power between rights holders, service providers, and users by placing the onus of disproof on those least capable of defending themselves.
Loss of access to the internet would be a severe consequence for many users. As Cory Doctorow has pointed out, online communication has become increasingly essential for daily life in terms of employment, access to government services, etc.:
I mean, it’s not as though internet access is something important right?
In the past week, I’ve only used the internet to contact my employers around the world, my MP in the UK, to participate in a European Commission expert proceeding, to find out why my infant daughter has broken out in tiny pink polka-dots, to communicate with a government whistle-blower who wants to know if I can help publish evidence of official corruption, to provide references for one former student (and follow-up advice to another), book my plane tickets, access my banking records, navigate the new Home Office immigration rules governing my visa, wire money to help pay for the headstone for my great uncle’s grave in Russia, and to send several Father’s Day cards (and receive some of my own).
The internet is only that wire that delivers freedom of speech, freedom of assembly, and freedom of the press in a single connection. It’s only vital to the livelihood, social lives, health, civic engagement, education and leisure of hundreds of millions of people (and growing every day).
This trivial bit of kit is so unimportant that it’s only natural that we equip the companies that brought us Police Academy 11, Windows Vista, Milli Vanilli and Celebrity Dancing With the Stars with wire-cutters that allow them to disconnect anyone in the country on their own say-so, without proving a solitary act of wrongdoing.
Beyond the troubling “three strikes” proposal, the ACTA has troubling implications for privacy, freedom of association, and the innovative potential of collaborative online projects.
Negotiations are taking place at a time when Parliament is suspended, preventing opposition MPs from holding the government accountable in question period.
Privacy is important. You should protect yours.
New Bob Marley Brand “House of Marley,” Heirs Take Steps To Protect Father’s Legacy
First posted on Commercial Law International on Jan 7, 2010.
“Old pirates, yes they rob I.”
The opening words to Redemption Song are as hard hitting now as they were when first bellowed by the iconic musical legend – Bob Marley - years ago. These words however may be taking on a new meaning in this era digitization and globalization where information is king. This era is all about IP – Intellectual Property – and the right to access, control and exploit for ones own benefit the concepts encapsulated within creativity.
As a matter of course the Brand – how you package and sell your IP, in fact branding itself becomes a form of IP – in this era becomes of great import. In fact one could argue that brand is not the everything but is the only thing. Consumers no longer simply buy a product or service – no, no – rather they are buying a brand.
Now this brings me to the House of Marley. The heirs of Bob Marley – the holders of the exclusive rights to the reggae superstar’s image – are drawing clear battle lines in the IP war on whom can access, control and exploit Marley’s iconic status. They have enlisted the aid of Canadian private equity firm Hilco Consumer Capital to package, manage, market, sell, monitor and protect the IP that is Bob Marley through the products sold under the new House of Marley brand.
Rather than attack the hawkers of existing wears, which would result in a multiplicity of protracted legal battles spread-out across the globe, Hilco and the House of Marley have instead embarked on a branding campaign. It is quite simple, the House of Marley will be authentic and all other comers will only be imitators – a potentially very lucrative strategy, if it can be pulled off.
According to reports, the Marley brand – name, sound and image – are estimated to generate $USD 600 million in a year and this is on the bootleg side alone. On the legal side, the brand generates a profitable but substantially smaller $USD 4 million a year.
With numbers like those no wonder the Marley heirs sought out and gained a partner like Hilco with a proven reputation in IP generally and branding specifically?
While I applauded this new venture, I can’t help but how long will it be before we see a court case or two? Maybe a few Anton Piller orders – best described but somewhat inaccurately as a civil search warrant, that feature so prominently in IP cases – or maybe the odd Mareva injunction – a court order freezing assets -?
The reason why I am thinking this is that it is impossible to escape the fact that branding – intellectual propertization – eventually means not only the allocation of exclusive rights but also the enforcement of those rights.
Do CRU emails show FOIA wrong-doing?
There’s been a lot of hype in the past few days about a batch of emails that were either hacked or leaked from the University of East Anglia’s Climate Research Unit (CRU). In the view of some opponents to climate change legislation, these emails depict collusion and conspiracy among leading climate change scientists. Other contrarians accuse at least one scientist of outright illegal conduct: violations of UK’s Freedom of Information Act (FOIA).
Hundreds of emails spanning well over a decade were released, but the ones important for allegations of illegal conduct are those where some of the scientists discuss the implications of the newly (in the UK) enacted FOIA, those that discuss how to deal with FOIA requests, and one that directs the deletion of certain emails.
I’ve learned a little bit about the US’s version of FOIA, so I thought that it would be interesting to examine this accusation of illegal conduct – at least, to the extent that a Canadian studying law at an American law school can explore British information and privacy law. Read more
Privacy and .ca
For years, if you registered a .ca domain, anyone could see your name, address and email in online “whois” databases. In 2008, the Canadian Internet Registration Authority (CIRA) restricted access to this information. Internet law guru Michael Geist hailed early drafts of the CIRA’s new whois policy as “a model for domain name registries around the world”. Still, in a last-minute change, CIRA allowed access to a domain owner’s identity for parties claiming IP infringement by the domain name. In response to Professor Geist’s accusation of a “stunning setback for privacy”, CIRA’s President and CEO Byron Holland called the new policy “thoughtful” and “effective” with the “best privacy protection in the world”.
Does CIRA’s whois policy strike the right balance between registrants’ privacy and IP owners’ rights?
Yes, CIRA cites the need to fight cybersquatting in defense of its disclosure policy. Registering domains for the sole purpose of reselling at a premium is a common problem on the internet. Few short domain names are now openly available for legitimate purposes. A more sinister extension of cybersquatting is phishing – posing as a third party to obtain confidential information such as passwords.
Yes, CIRA’s disclosure policy also protects IP rights. It simplifies contacting alleged infringers and helps resolve IP disputes outside of court. The opportunities for IP infringement in domain names alone are huge due to the nature of the internet. Any alternative dispute resolution can help relieve a potentially large burden on the justice system.
But there are flaws in CIRA’s whois policy.
Disclosure without consent impairs registrants’ privacy. It is also probably unlawful. CIRA’s disclosure policy does not meet the conditions in s. 7(3) of the Personal Information Protection and Electronic Documents Act, which contains the exhaustive list of circumstances when disclosure without consent is allowed in the private sector.
CIRA’s policy also undermines the freedom of speech. Whistleblowers or political activists will lose their anonymity unduly if they register a domain name referring to the organization they criticize. Instead of having to go through court, claimants need only show CIRA reasonable belief of IP infringement to obtain the registrant’s identity.
Registrants’ privacy and freedom of speech suffer irrevocably, while IP owners retain their rights and avenues for pursuing infringers regardless of CIRA’s cooperation. The barrier to obtain personal information is low. CIRA does not specify how or whether it considers merits of infringement claims. Frivolous claims that wouldn’t make it to courtroom can survive under CIRA’s laxer procedures. Citing the need to contact registrants is unreasonable because CIRA already passes electronic messages to registrants via its website. It should also be able to send regular mail on behalf and at the expense of any IP claimants.
CIRA owes a statutory duty to registrants who entrust it with their personal information. Among all the options to facilitate resolution of IP disputes, CIRA chose one that seems unbalanced and not in accord with the privacy legislation.
McProperty
McFalafel owner to fight for his prefix
McDonald’s lawyers badgered McFalafel owner until he caved in. He wants to fight back when he can afford the legal fees.
Nicole Baute writes for the Star:
As for McFalafel’s chances, trademark lawyer Donald Brown says, “McDonald’s could have a case. Their arguments would be, you chose `Mc’ because it directly relates to our organization and you could be viewed as riding on our fame and/or notoriety.”
Digital locks issue not going away any time soon
People often complain that Canadian copyright law is out of date and that we need a stricter law to protect the artists.
I’d just like to turn to one particularly controversial topic on copyright law today: provisions against the circumvention of DRM (digital locks). With the Copyright Consultation that is currently going on in Canada, that has been pegged as the issue that has seen the most opposition from Canadians thus far.
Bill C-61 (aka the “Canadian DMCA“) may have died, but the digital locks issue is not going away any time soon, because of a particular provision in the WIPO Copyright Treaty (Article 11), signed by Canada, that states:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.
The treaty was ratified by the United States in the Digital Millennium Copyright Act (DMCA) back in 1998. As it stands now, the DMCA makes it illegal for consumers to, for example, remove the encryption on a DVD they have legally purchased so that they can play the video on a portable player. To protect the artists, indeed. I think it’s quite clear who this law benefits.
How important should it be to for Canada to follow through on its treaty obligations, even when so many people have spoken against them? In the case of the WIPO Copyright Treaty, fewer than 50% of countries have ratified it. Is this a simple matter of “the law is the law”, or should more flexibility be afforded here?
Cross-posted from Trials and Tribulations
Lawrence Lessig Remix Commentary on Copyright
Lawrence Lessig, a law professor at Stanford, recently said,
If you come to the Net armed with the idea that the old system of copyright is going to work just fine here, this more than anything is going to get you to recognize: you need some new ideas.
To illustrate this point, he uses the following remix by Ophir Kutiel of Israel, where I’m currently studying law.
Legitimate-Content Bay?
I was surprised to see in numerous newspaper (here, here, etc.) that a Swedish firm called Global Gaming Factory signed an agreement to buy the Pirate Bay. For those unaware, the Pirate Bay, also based in Sweden, is the world’s largest Bit Torrent tracker, providing easy access to a multiplicity of files using peer-to-peer technology. An estimated 90% of these are copyrighted, and a Swedish court held the company and its founders liable in mass copyright infringement. It’s founders and financial backer have recently been sentenced to one year each in prison and millions of dollars in fines (the case is under appeal and some of the founders are no longer in Sweden).
But now, Global Gaming Factory is agreeing to pay US $7.8 million for the file sharing website, tracker, and community of users. Global Gaming’s business plan is weird to say the least. It plans to pay royalties to the copyright owners for the files that are transferred using the tracker and make money using a mix of advertizing and the selling of bandwidth on the peer-to-peer network to internet service providers and other entities. The latter means that if a user is downloading or uploading a bit torrent file using Pirate Bay, their spare CPU, memory, and internet connection capacity will be sold to a third party who can use it for anything from SETI to DDoS attacks. The company is also planning a revenue-sharing program to kick back a part of the earnings to its users.
All of this sounds great (or not so great in the case of DDOS attacks, but the company assures us that it is legitimate), there’s just one problem: Global Gaming does not seem to have any plan on making this happen. Case(s) in point: they have not approached any of the copyright holders to attempt to negotiate prices. They have no idea how much they will have to pay to make Pirate Bay go legitimate. Analysts are also saying that ISPs will likely balk at buying bandwidth back from its own users. Users selling bandwith (which they are if there’s a revenue sharing plan) is also against the Terms of Service of most ISPs.
To add to their problems, Global Gaming is now being investigated for insider trading. Authorities noticed an unjustified spike in the price and trading volume of the company’s shares weeks before the announcement to purchase Pirate Bay was made. AktieTorget, the Swedish exchange on which the company was listed is also saying that it will broaden its investigation into the activities of the company once the sale is completed. Any illegal activities (such as distributing copyrighted content without permission) are grounds for removal from the exchange.
I find the move to buy the Pirate Bay to be a little bit weird. Global Gaming seems to be a legitimate company that owns internet cafes and produces software. It is highly unlikely that they would put out $7.8M USD if they did not have a plan. There’s something missing. For now, Pirate Bay’s previous owners are optimistic and there’s some cautious optimism in the Pirate Bay community as well. If Global Gaming manages to pull off what they’re promising, they have found a brilliant new business plan that may legalize all kinds of file sharing. The costs of failiure however, are very high. Global Gaming has a huge uphill battle ahead.
An Extraordinary About Face on Copyright Reform
An interesting article in the Star: Ministers finally embrace Canada’s digital future
In an age where powerful lobby groups are advocating a copyright regime that looks much more like tyranny than sound public policy, here is evidence that other voices are being heard. Realistically, Mr. Clement’s comment is VERY tepid. He merely admits that we are in a “somewhat different” public policy environment and that he will undertake broad consultation. This could be lip service. If I was a gambler I’d bet money on it. However, lip service is a paradigm shift of unparalleled proportions. WOW!
The Post-Mortem Legal Battles of Michael Jackson
When the king (of pop or otherwise) dies, all the courtiers usually start scheming on how to get pieces of his estate.
Brian Oxman, the family’s lawyer, said,
We will have to see how that plays out in a court of law. I suspect that the death of Michael Jackson is only the beginning of the legal battles over not only his property, but also his children.
Jackson supposedly recorded over 100 songs for his kids that were only supposed to revealed after he died.
But after all of his debts are paid, there may not be much scraps left to fight over. His death may signal an end to confidentiality agreements, especially around his legal settlements, and there will be a lot more stories revealed.
Then there are the disputed reports that he converted to Islam recently. Some have indicated that removal of his body wrapped in white sheets may signal an Islamic funeral, something that some of his family and friends may object to given denials by his publicists of the conversion.
One thing that is not disputed is that his music reached the entire world, and everyone will be watching the trials to see what happens.
Copyright Law, Freedom of Expression and Canwest v. Horizon
In a previous post I erroneously stated that the appeal of Canwest Mediaworks Publications v. Horizon Publications had been dropped. As it turns out, the appeal is pending; the game is on. Those who wish to know more should visit the Seriously Free Speech Committee website where there is a wealth of information including the trial court decision and the Notice of Appeal. While browsing the site, I noticed that within some of the articles there are calls for Canwest to drop the suit. Although I completely understand why the appellants would want to be freed from the onerous burden of legal action, I am hoping that the case proceeds for the benefit of society.
Copyright law occupies an unusual place in the legal landscape. It is an extraordinarily complicated regime that affects our daily lives in hundreds of ways, yet it is rarely litigated. There are only a handful of appellate court decisions pertaining to copyright law; opportunities to move the law in a positive direction are infrequent and questionable decisions like Michelin can linger for decades.
While many cases of infringement involve activities that could reasonably be described as unjust enrichment, the wording of the statute is such that a black letter interpretation renders a number of practices unlawful that are in fact beneficial to society and do not involve usurping the gains of a copyright-holder. A prime example is the artistic practice of appropriation, i.e. using culturally recognized symbols (for which copyright usually subsists) to express a unique idea. In the Michelin case, a cartoon was distributed to promote a union drive which depicted a large smiling “Michelin Man” about to trample on a Michelin factory worker.
Although appropriation is an old artistic technique, it is becoming much more common in our media-rich culture, and I would suggest that the growing importance of appropriation is a natural evolution in a society where we are constantly bombarded with images and sound bites. No individual alive today created the English language. We were “bombarded” with it when we grew up, and we appropriated the words and phrases as tools for our own expression. This is a reasonable and indeed productive activity. It is for this reason that copyright protection is not permitted for words and ideas; they are the building blocks of expression that are part of our cultural heritage and rightly belong in the public domain.
In a media-saturated society, the same elements are at work with the many images and sound bites that we are exposed to. With the growing variety of tools to manipulate them, it is only natural that artists would incorporate some of these images and sound bites into their own unique works, and often as a means of social commentary. This is what artists do. They have never been satisfied with painting pretty pictures, but prefer to shine a harsh light on the society in which they live through the innovative use of symbols. This is an important part of the social dialogue and free exchange of ideas that underpin our culturally rich society.
The law of copyright, in its current form, depends upon the concepts of originality and substantiality to protect the building blocks of expression, and therefore only permits appropriation that is not substantial (with narrow exceptions for fair dealing as explained by David Fewer — thank you for your comment). This test is too simple to ‘get it right’. As a result, it has the incidental effect of stifling the vast majority of appropriative forms of artistic expression and social commentary, regardless of the social import and regardless of how creative a work is.
There can be no doubt that copyright law protects legitimate interests, and it must continue to do so. However, I respectfully submit that the current statute, as applied by the courts, does not adequately serve the dual objectives of “promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34 at para 30.). To the contrary, the law actually discourages the creation and distribution of new works.
In a society where copyright cases are rarely litigated, the Canwest case is an invaluable opportunity. It is my hope (and apparently I am not alone) that the Canwest case results in a more nuanced enunciation of copyright law in Canada: one that allows appropriation in circumstances where it does not interfere with the legitimate interests of a copyright holder.
Podcast Feeds
Awards
Partners
- Advertise Here
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
The Whiners - The Elusive Fish Creative Services
- Mesothelioma Lawyer
- no win no fee solicitors
- Compensation Claims
- personal injury lawyer toronto
- no win no fee
- Pardons Canada Accident Claim Medical Negligence Whiplash Claim
- No win No fee Claims
- Venue
-
-
-
-
-
-
-
-
-
-
-
-
