Digital Copyright Canada

I posted recently on the possibility that ACTA could prolong the process of Canadian copyright reform, and about the average period of time, historically, that it has taken to reform Canadian copyright law. If we look at specific examples of efforts, on the part of Canada, to implement international copyright treaties, there are a few examples:

The Berne Convention, first implementation: 38 years
Canada was signed on to the original Berne Convention, which is still the cornerstone international copyright treaty today, by the British in 1886. However, it took Canada 38 years to implement the Berne Convention. After being brought on board by the British Imperial government, Canada decided the Berne Convention didn't fit in the North American context. It was viewed as a European treaty; the Americans weren't part of it. It therefore wasn't until 1924 that Canada finally implemented what by then was the 1908 revision of the Berne Convention.

The 1928 revision of the Berne Convention: 3 years.
Canada implemented the 1928 revision of the Berne Convention in short order, in 1931, granting moral rights and broadcast rights in copyright works.

The 1952 Universal Copyright Convention: 10 years.
Canada took 10 years to ratify the Universal Copyright Convention, which it did in 1962. It took 10 years because Canada couldn't decide whether or how to change Canadian law in order to implement the convention. After waffling about for 10 years on a possible copyright overhaul, Canada decided that no change to the actual law was necessary in order to meet the standards of the UCC, so that made the process, in the end, relatively quick.

The 1971 Revision of the Berne Convention: 22 years.
Canada implemented the 1971 (current) revision of the Berne Convention (which it had not originally signed) in 1993 in order to comply with NAFTA. Canada then formally acceded to the convention in 1998.

On average, that's 18 years. Implementation takes place more quickly if either no reform to domestic law is required or if the changes required are relatively uncontroversial. If however, the changes required are controversial, or if a significant overhaul of the copyright act is contemplated - as in the current case of contemplated copyright reform - implementation in Canada can take much longer.

I noted recently that ACTA could actually slow down copyright reform in Canada. That made me wonder, how long does copyright reform in Canada take, on average?

Reform 1: 36 years . Canada's first copyright act was put in place in 1868, just after Confederation. Attempted overhauls began with bills introduced in 1888 and 1889, but these failed or were blocked by the British. Only minor revisions were made until a completely new act came into effect in 1924.

Reform 2: 34 years. Canada began to contemplate copyright reform again in 1954, when it created a Royal Commission to investigate copyright and other forms of intellectual property. This was followed by a major study by the Economic Council of Canada that came out in 1971. All of this studying didn't amount to a major copyright reform until another round of consultations that culminated in the reform of 1988.

Reform 3: 9 years. The next phase of Canadian copyright reform took place in record time, and was done in 1997.

On average, that's 26 years.

Reform 4: 13 years and counting. If history is any guide, Canadians should be expecting a new copyright act somewhere around 2023.

While Canadian delegations work with other countries to negotiate ACTA, Canadians await the next round of attempted copyright reform. The last two copyright bills, C-60 and C-61 died with changes of government. While parts of the first Liberal bill was seen to some extent to be acceptable, elements of the Conservative C-61 bill were fiercely opposed.

From recent reports it seems as though ACTA would block Canada into a corner on certain aspects of copyright reform, undermining the Canadian notice-and-notice regime for ISP liability and Canadian proposals for DRM circumvention laws, for example.

What will be the effect of ACTA on Canadian copyright reform?

The effect of ACTA on Canadian copyright reform depends on how the negotiations go. The goal of the Canadian delegation negotiating ACTA will likely be to preserve policy space for Canadian copyright lawmaking, and to negotiate an ACTA that will enable a Canadian copyright bill that is acceptable to Canadians and passable in Canadian Parliament. If the delegation succeeds, and a flexible ACTA that Canadians are comfortable with is the outcome, then we have little to worry about. This, for the moment, seems unlikely.

If the delegation does not succeed, and the ACTA that is finally agreed by negotiating parties contains elements that seem unsavory from the Canadian perspective or that would cut off policy options that the Canadian government wants to preserve, then Canada has the option to refrain from signing the treaty. This has happened in the past. When the 1967 revision of the Berne Convention was signed, Canada was in the middle of a copyright policy overhaul. Because of this, after participating in the negotiations, Canada did not sign the revision, which never came into effect anyway. Similarly, Canada negotiated actively but did not sign the 1971 revision of the Berne Convention - which remains the current revision of the treaty - , and avoided acceding to that revision of the convention until 1998. Canada also negotiated actively but did not sign the 1971 revision of the Universal Copyright Convention. Again, this was due to the desire, on the part of the Canadian government, to allow Canadian policy options to remain open for the domestic decision-making process to take place.

If Canada signs an ACTA that contains controversial elements from the Canadian perspective, things could go one of two ways. Policymakers and interest groups may accept that the field of policy options has narrowed, that Canada has committed to certain policies, the debate around copyright reform may be encompassed within new terms, and several options that were once controversial will have been pre-decided via the international process. Effectively, domestic policy-making procedures will have been circumvented, and any new Canadian copyright act will fall within the parameters set by ACTA, perhaps passing more easily because some of the controversial elements have been taken out of the debate.

Alternately, copyright reform could become even more difficult. Those groups who are in favour of the policy options contained within ACTA will have a stronger argument as to why Canada should include those elements in any new act, while opponents will criticize the government for having short-circuited the domestic process. They will argue that Canada should not implement ACTA. At the same time, the Canadian government will be under more pressure from other parties to the ACTA to implement. This situation could lead to an even longer period of indecision and difficulty in Canadian copyright reform.

update: see Blayne Haggart's post on this same topic
update 2: see Blayne Haggart's post on how ACTA could slow copyright reform in Mexico

The EFF has published an excellent checklist of questions to ask if you are considering buying an e-book or e-reader. It seems to me that many of the answers to these questions are, for the moment, somewhat depressing. This makes it all the more important that such questions should be asked.

Copyright lawyer Howard Knopf spoke to Search Engine about 21 ways (+1) that Canadian copyright law is stronger and more restrictive than American law. Canada suffers much abuse from the US - especially where American-dominated IP lobby groups are running the show, as they so often are - and even, unfortunately, in respectable Canadian publications like the Globe and Mail. Canada's representatives and Canadian commentators would do well to memorize these 22 points, rather than be caught speechless the next time Americans choose the term 'backwater' to refer to their closest trading partner.
Listen to Knopf here.

Howard Knopf has made some comments on the Google Book Settlement and has made note of several questions that Canadians should be asking. He points out that "most of the bells and whistles of the Google Books database will presumably not be available in Canada with respect to most of the database." Although Canadian copyright owners are included in the settlement class, and thus copyright owners could benefit from the proceeds of the settlement, none of the proposed benefits to users, such as institutional access to the database in Canadian libraries, free terminals to access the database in public libraries, or individual subscriptions, will be available to Canadians. Google will confine the services proposed under the settlement to the United States, where American copyright law applies. Canadians will be left viewing snippets of what American users can access fully.
For those interested in reading more, see Jonathan Band's article; especially page 264 on the service provision outside the United States.

An article in the New York Times on Thursday notes that the prices of ebooks are slated to go up. Customers are outraged. One customer is quoted as saying "$14.82 for the Kindle version is unbelievable." Try $315:

• Copyright and Creative Freedom by Mira T. Sundara Rajan (Routledge): priced at $156 on WHSmith and $90 in the Amazon and Sony stores
• International Copyright: Principles, Law, and Practice by Paul Goldstein (OUP): $165 on ebooks.com
• An Emerging Intellectual Property Paradigm: Perspectives from Canada edited by Ysolde Gendreau (Edward Elgar): $145 on ebooks.com
• Globalising Intellectual Property Rights by Duncan Matthews: $160 from Taylor & Francis
  
• Research Handbook on the Future of EU Copyright by Estelle Derclaye (Edward Elgar) : $315 on ebooks.com

And those are DRM versions that may or may not be usable on your next device.

David Fewer writes a guest post for the Electronic Frontier Foundation on "What ACTA means for Canadians." According to him, there are concerns "with ACTA’s potential to undermine Canadian sovereignty over domestic intellectual property policy and the Canadian values they express."

He notes that ACTA is a threat to Canadian policy solutions that include the Canadian notice-and-notice regime for ISP liability and Canadian proposals for DRM circumvention laws. He concludes,
Both ACTA and the Canada-EU trade discussions threaten to displace domestic control over IP policy. While it might be said that it is better for Canadian negotiators to be at the table influencing developments than left on the outside looking in (like the rest of us), it might be better for Canada to walk away from the entire process. Participation merely threatens to lend the process a legitimacy that, from Canadian eyes, it currently lacks.

E-books aren't evil necessarily. They can be a convenient way to read, and digital books will make an enormous wealth of literature and knowledge available. But there are some important downsides. Here's a summary.

There are a number of great benefits to e-books, especially from an academic perspective:

• Access. E-books provide easy and instant access to huge numbers of books - especially books in the public domain. Whereas in the past you had to hunt for these, or, in more recent years, read them online, now they are portable on e-readers, which make them convenient and easy to read and carry around.
  
• Markability. Some e-readers give you the ability to write in the book without feeling guilty. This ability is really important for concentration, comprehension, and memory.
• Read-aloud. Some e-readers will read a book aloud. This is great if you prefer to listen to your books, and especially for the visually or reading-impaired.
  
• Storage. For travelers especially, e-readers allow you to carry around a whole bunch of books, easily. They free up shelf space. This is most important for libraries; e-books will allow libraries to offer many more books to their clients without straining storage space.
• Library books. Many public libraries now offer e-books that you can download online. They are easy to sign out without visiting the library, and easy to return: they just become disabled after the loan period ends.
  
• Competition. E-books offer some competition to regular books, which hopefully will have a positive effect on prices. There seems to be relatively healthy competition between online stores selling e-books, with the exception of cases of vertical tying, as I'll discuss further below.
• Newspapers and magazines. Many newspapers and magazines are available for the Kindle, while some - though fewer - are available at the Sony e-book store. E-subscriptions could create a new and much-needed revenue stream for newspapers and magazines - and, it's a very convenient way to receive them.
• Royalties. E-book vendors such as Amazon give a far greater percentage of royalties to publishers and authors than what authors recieve on print sales; Amazon just announced that it will offer, on certain conditions, almost 70% of the e-book sale price in royalties to its authors and publishers.
• Circumventing censorship. E-books can be made available even where print versions are banned. See this post by James Turner.
  

However, there are also a number of downsides:

• Online E-books. Although many public libraries now offer e-books online, academic libraries seem to be slower to get on board. Unfortunately, many academic libraries have adopted only a type of e-books that can't be downloaded, but that can only be read using a browser in a special web portal. These, I have found, are almost useless in an academic setting: they can't be underlined, note-taking features are extremely limited, and printing is limited to a very few pages a day - so the articles can't be brought to class. HotBook agrees that this type of e-book is a disaster. So have my students.
  
• DRM. Digital Rights Management can be a huge pain for purchasers of e-books, without, it seems, being effective in preventing copyright infringement. DRM seems more effective as an anti-competitive practice than as a mechanism to prevent unauthorized copying; plenty of books are available through unauthorized sources online. Nevertheless, DRM puts up all kinds of barriers to access and convenience. With many DRM-protected e-books, you can't loan your book to a friend. Your e-book becomes tethered to your device - and possibly only certain devices so that, although you may have the capability of reading e-books on both your e-reader and your phone, the book you bought may be restricted to your e-reader device, unplayable on your phone. When you switch to a new device in a few years, you may not be able to take your books with you. Also, as happened to me recently, DRM can be glitchy. Some of my DRM e-books recently became disabled due to a bug in the library-book lending system. Cases like this are very frustrating. These factors could turn many off of e-books.
  
• Open Source Software. Many e-books are non-DRM and can be managed using open-source software. Not only is this software free -- it can also be continuously improved by the Open Source Software community. However, DRM e-books cannot be legally used in Open Source Software, meaning that you can end up stuck using whatever software your vendor happens to provide.
• Vertical tying. Many books are sold that only work on particular devices, preventing owners of Sony e-readers from reading e-books bought at Amazon, and preventing anyone without a Sony e-reader from buying from the Sony e-book store, for example. Here, DRM is used to force customers to buy particular devices and to reduce competition between e-book vendors.
• Disappearing e-books. Although it's great to be able to access e-books for free with ease from the library, the prospect of disappearing books seems to run counter to the technological possibilities and potential of the technology.
• Copyright term. The technological expansion of access to books coincides with the extension of copyright terms (the length of time that copyright applies), countering that expansion by blocking off access to books or making them only commercially available.
• Software limitations. The e-readers and software available now seem very rudimentary: note-taking functions are extremely limited; cut-and-paste functions are often disabled or laden down with copyright notices; and a lot of the software is simple, clunky and buggy.
• Format. E-books look OK, but they're not exactly beautiful. E-readers don't display colour at this point, and formatting can be a little wonky. Some e-books and documents can be hard to read, even for those with good vision. Limited formatting capabilities may limit the usefulness of e-readers for reading magazines and newspapers. The Apple iTablet offers itself as one exception.
  
• Accessibility. Universities have been working with companies to ensure that e-readers are accessible to those who are visually impaired. Although the read-aloud function available on some e-readers is a great step forward, it has been impossible for those who are visually impaired to properly navigate the menus and software functions of the device. Hopefully this will improve soon.
• Price of books. Many ebooks are very expensive - especially academic books. Taylor & Francis offers many of its books at the ridiculous price of $100-$200. When standards and technology are still in flux, and people change gadgets every two years or so, e-books that you purchase now may only be good for a year or two, either because they are tethered by DRM to your old device, or because standards have changed. Most people can't afford to spend that kind of money on a book that could expire or become incompatible in a year or two. It is especially ironic that academic books should be so expensive, when most academics neither need nor expect to make any significant money through publishing.
• Price of technology. E-readers are expensive. To large groups of people around the world, they are unaffordable. Mobile phones equipped with e-reading software are one less expensive option. See this post by James Turner.
• Jobs. E-books could change the employment landscape of the newspaper industry and the publishing industry as a whole - affecting especially those implicated in production and delivery. However, in the case of newspapers, this shift may have already taken place as a result of the online availability of news. In the case of libraries , if the provision of e-books is outsourced, as it now appears to be, library staffing - in cataloging and circulation especially, could change. This is to say nothing of the impact on brick-and-mortar bookstores. The current feeling seems to be that e-books will not replace regular books. Nevertheless, there will very likely be an impact.
  
• Environment. Although e-books save paper, the e-reader is yet another consumer electronic device that will be disposed of, create energy costs, and damage the environment.
  
• Troubleshooting. Who knew that you'd ever have to call IT to troubleshoot a book?

Let me know what I've missed...

Events were held in Washington DC this week to celebrate World Fair Use Day. Canadian filmmaker Brett Gaylor noted that the name of the day is a bit of a misnomer, since only the US and Israel have "fair use" provisions in their law; the Canadian counterpart, and the principle in many countries around the world, is called 'fair dealing'. Michael Geist makes an important note on this today. Many of the discussions at the Washington events were focused on fair use in the US, but international aspects arose on a few occasions.

Panelists at a discussion on ACTA Monday night noted the importance of exporting not only protections for copyright holders, but also the exceptions and limitations to copyright that ensure copyright law encourages innovation, that it is balanced, that it reflects how people want and need to use works, and that it is respected. They expressed concern that ACTA, if it focuses only on ratcheting up the rights of copyright holders without focusing also on exceptions and limitations, might set a narrow path going forward that would be detrimental to not only balance in copyright around the world, but also to the current and future flexibility of American law. See Rebecca Tushnet's' blog for more of the discussion.

At a lunchtime discussion with Peter Jaszi and Anthony Falzone, I asked the question: should fair use be internationalized, and if so how? The discussion was blogged here ("Sarah Bannerman from GWU"). The panelists gave a thoughtful response, expressing caution about exporting a US-based approach and fears that the harmonization process might actually impose limits on the flexibilities and limitations that countries can include in their law. However, they also noted, as did the panelists Monday night, the importance of including balance and room for limitations and exceptions in any harmonization process.

Events were held in Washington DC this week to celebrate World Fair Use Day. Canadian filmmaker Brett Gaylor noted that the name of the day is a bit of a misnomer, since only the US and Israel have "fair use" provisions in their law; the Canadian counterpart, and the principle in many countries around the world, is called 'fair dealing'. Michael Geist makes an important note on this today. Many of the discussions at the Washington events were focused on fair use in the US, but international aspects arose on a few occasions.

Panelists at a discussion on ACTA Monday night noted the importance of exporting not only protections for copyright holders, but also the exceptions and limitations to copyright that ensure copyright law encourages innovation, that it is balanced, that it reflects how people want and need to use works, and that it is respected. They expressed concern that ACTA, if it focuses only on ratcheting up the rights of copyright holders without focusing also on exceptions and limitations, might set a narrow path going forward that would be detrimental to not only balance in copyright around the world, but also to the current and future flexibility of American law. See Rebecca Tushnet's' blog for more of the discussion.

At a lunchtime discussion with Peter Jaszi and Anthony Falzone, I asked the question: should fair use be internationalized, and if so how? The discussion was blogged here ("Sarah Bannerman from GWU"). The panelists gave a thoughtful response, expressing caution about exporting a US-based approach and fears that the harmonization process might actually impose limits on the flexibilities and limitations that countries can include in their law. However, they also noted, as did the panelists Monday night, the importance of including balance and room for limitations and exceptions in any harmonization process.

Public Knowledge invites people around the world to organize events on January 12 2010 to celebrate World Fair Use Day. [more]

Dear All,
On January 12, 2010, Public Knowledge, based in Washington D.C., US, will
host the World’s Fair Use day – an event that will bring together artists,
innovators, and policy advocates to celebrate fair use. I am writing to
request your help in spreading the word about the event. Also, it would be
great if you could organize your own events celebrating the many benefits of
fair use or similar copyright limitations and exceptions. The idea is to
have co-ordinated events in different parts of the world all organized under
the same theme. The events don't have to be on the same day. If you let us
know about your event, we will help spread the word about it. To give you a
better idea about our event, here’s a link to the event website: wfud.info

In a few days, we will put together a party packet providing ideas about the
types of events you can organize. Of course these are just suggestions and
anything you do to celebrate fair use would be great.

We would also be delighted if any of you can attend our event.

If you are interested in pursuing this further, please contact my colleague,
Mehan Jayasuriya, who is organizing our event at mehan@publicknowledge.org.
Please don’t hesitate to contact Mehan or me if you have any further
questions.

Thank you.
Rashmi Rangnath
Director, Global Knowledge Initiative
Public

Blayne Haggart, Canadian scholar in Mexico, has a new post on hot-off-the-press developments in Mexican copyright. Mexico has the longest copyright term in the world: life + 100 and could, if developments continue, be a world-leader in other strong copyright measures as well. Haggart reports that a new copyright coalition has formed in Mexico that will work to increase copyright measures, recognition, and enforcement. Haggart points to low levels of internet penetration in Mexico as one reason why user rights movements haven't taken off in the country. As Haggart says, regarding the low levels of Internet penetration, "this won’t always be the case; as more Mexicans go online, they are likely to become more aware of how they are affected by copyright law."

Blayne Haggart, Canadian scholar in Mexico, has a a href="http://blaynehaggart.blogspot.com/2009/11/in-mexico-creators-and-industry-are.html"new post/a on hot-off-the-press developments in Mexican copyright. Mexico has the longest copyright term in the world: life + 100 and could, if developments continue, be a world-leader in other strong copyright measures as well. Haggart reports that a new copyright coalition has formed in Mexico that will work to increase copyright measures, recognition, and enforcement. Haggart points to low levels of internet penetration in Mexico as one reason why user rights movements haven't taken off in the country. As Haggart says, regarding the low levels of Internet penetration, span class="arnegro14""this won’t always be the case; as more Mexicans go online, they are likely to become more aware of how they are affected by copyright law." /spandiv class="blogger-post-footer"img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/1588536543599320397-585732972477184569?l=sarabannerman.blogspot.com' alt='' //div