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New TPP Leak: Canada Emerges as Leading Opponent of U.S. Intellectual Property Demands

Michael Geist Law RSS Feed - Thu, 2014/10/16 - 10:03

This morning Wikileaks released an updated leaked version of the draft Trans Pacific Partnership intellectual property chapter. The latest leak dates from May 2014 (the previous leak was current to August 2013. I assessed it in posts here, here, here, here and here). The 77-page document provides a detailed look at the proposed chapter, complete with country positions on each issue. While a comprehensive assessment of the chapter will take some time, the immediate takeaway is that the U.S. remains fairly isolated in its efforts to overhaul patent and copyright law around the world with Canada emerging as the leading opponent of its demands.

In fact, Wikileaks compiled the following graphic that shows Canada as the strongest opponent to TPP IP demands, signalling its opposition to a proposal 56 times, more than any other country. The strongest opposition comes in the patents, enforcement, trademarks, and copyright sections.

WikiLeaks-TPP-IP-Opposing By Julian Assange and Sarah Harrison https://wikileaks.org/tpp-ip2/attack-on-affordable-cancer-treatments.html

Why is Canada opposing so many U.S. demands?

Simply put, the U.S. wants Canada to eviscerate many of the recent reforms found in copyright and counterfeiting legislation along with court rulings on patent protection. These demands focus on enhanced criminal liability for copyright infringement, eliminating the Canadian approach to Internet service provider liability, extending the term of copyright protection, and expanding patent protection. Canadian negotiators have thus far resisted many of the proposed changes, offering alternatives that are compatible with current law. Yet as the treaty negotiations continue, the pressure to cave to U.S. pressure will no doubt increase, raising serious concerns about whether the TPP will force the Canadian government to overhaul recently enacted legislation that it has steadfastly defended as reflecting a balanced, “made in Canada” approach.

The post New TPP Leak: Canada Emerges as Leading Opponent of U.S. Intellectual Property Demands appeared first on Michael Geist.

Government Opens Door to Major Changes to Digital Privacy Bill

Michael Geist Law RSS Feed - Wed, 2014/10/15 - 09:52

While it was overshadowed by the headlines over potential copyright reform, Peter Van Loan, the government’s House leader, disclosed last week that the government is planning to send Bill S-4, the Digital Privacy Act, to the Industry Committee for review prior to second reading. The bill, which has proven controversial due to a provision that expands the possibility of voluntary disclosure of subscriber information and relatively weak security breach disclosure rules, will be open to more significant reforms that previously thought possible (my remarks before the Senate committee can be found here). Under Parliamentary rules, referring a bill before second reading allows the committee to alter the scope of the bill.

As I discussed earlier this year, there appeared to be a deal at the Senate that would have amended the voluntary disclosure provision. However, a voting snafu by Liberal Senators left the provision intact. With the bill headed to committee before second reading, changes seem likely. During the abbreviated Senate hearings, there were calls for changes to the voluntary disclosure rules, increased Privacy Commissioner powers, and strengthened data breach rules.

That said, industry groups have also been lobbying for changes, including limitations to reforms to consent and opposition to tough measures on security breach rules. Indeed, it is unclear whether the government plans to use the committee process to strengthen or weaken its own privacy bill, but the procedural maneuver is sure to lead to increased lobbying and requests to appear before the Industry committee once hearings on S-4 begin. Moreover, it is possible the changes are linked to forthcoming anti-terrorism legislation. For Canadians concerned about the state of private sector privacy law, now is the time to speak out to ensure that the bill toughens privacy enforcement, is not used to perversely increase surveillance, and removes provisions that could undermine privacy protections.

The post Government Opens Door to Major Changes to Digital Privacy Bill appeared first on Michael Geist.

Broadcaster Copyright Misuse and Collusion?: Why Criticism Over the Government’s Political Ad Copyright Exception May Be Pointed in the Wrong Direction

Michael Geist Law RSS Feed - Tue, 2014/10/14 - 09:25

The Canadian Thanksgiving weekend featured escalating rhetoric over the government’s proposed copyright exception for political advertising with claims of fascism, censorship, expropriation, and more. The commentary bears almost no relationship to reality. The truth is that the government and the broadcasters both agree that the current law already permits use without authorization. For all the claims of “theft”, the copyright owner (broadcasters) and user (political parties) both agree that the works can be used without further permission or payment. As Ariel Katz points out this morning, the bigger issue may well be whether Canada’s broadcasters violated the Competition Act by conspiring to not air perfectly lawful political advertisements.

I wrote about the controversy in my weekly technology law column (Toronto Star version, homepage version), but the debate can be boiled down to three issues.

First, it is important to emphasize again that fair dealing under copyright already permits use of many broadcaster clips without the need for further permission. While the scope of fair dealing is not unlimited, the broad approach dictated by the Supreme Court of Canada means that many uses are already permitted under the law. Therefore, the claims of co-opting broadcasters, theft, and risks to press freedom are simply wrong.

Second, the proposed change is problematic, but not because it creates a political advertising exception. The exception may be of limited value, but the problem lies in the inequitable policy of creating two tiers of rights for political speech. As currently crafted, the exception would only apply to political parties, politicians, candidates, and their agents. The creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds. If the government is convinced that stronger protection for political speech is needed, there are far better options, namely a full fair use provision or the inclusion of political speech as a fair dealing purpose that would be available to all.

Third, the entire strategy is rather puzzling since the proposed exception does not address the underlying issue: broadcasters are now refusing to air legal advertisements from political parties. Documents obtained by others under the Access to Information Act reveal that the CBC was the instigator behind the April 2014 warning letter to all political parties that the broadcasters wold not accept political advertisements using their content without express authorization. The email trail reveals that the CBC recognized that it could not reject the advertisements on copyright grounds. Instead, the broadcasters conspired to adopt a policy to reject the ads anyway, an approach that smacks of copyright misuse and a potential Competition Act violation.

The odd thing is that the proposed copyright exception would have little impact on the broadcaster policy. The legal change would not require broadcasters to air the advertisements and since the decision to refuse to air is presumably not grounded in copyright law, the change would not alter the broadcaster position. The entire episode ultimately raises troubling questions about why the CBC was pursuing efforts to limit legal uses of its work (I’ve argued it should open up its content for wider use), why the government is bothering with a provision that does not solve its concern, and perhaps most importantly, why has there been so little focus on a broadcaster policy to refuse to air political advertisements that by their own admission are perfectly legal.

The post Broadcaster Copyright Misuse and Collusion?: Why Criticism Over the Government’s Political Ad Copyright Exception May Be Pointed in the Wrong Direction appeared first on Michael Geist.

Though this be method, there is madness in’t…

Fair Duty by Meera Nair - Fri, 2014/10/10 - 12:38

This past week, news broke concerning the Harper Government’s consideration of a new exception to Canada’s Copyright Act. A benefit solely for those involved in the  creation and distribution of political advertisements, the proposal can only undermine three hundred years of statutory design on copyright law, which has progressively ensured broad language with flexibility to anonymous creators and users alike.

Reports began on October 8 from CTV and the Globe & Mail, with the CBC providing further details on October 9 (including posting the undated Cabinet presentation document). Michael Geist posted commentary on both the 8th and 9th, and copyright enthusiasts around the country are shaking their heads in disbelief and dismay.

Briefly, Prime Minister Harper and his cabinet are entertaining the thought of an exception to copyright that is only applicable to the political establishment. From the Cabinet document came this:

The exception means greater certainty for the political actors who want to use copyright content in their advertisements:
– E.g. clips from radio and television broadcast news, footage capturing a political debate or events, a newspaper or magazine article, etc.
– Could be used by all politicians and registered political parties at any level of government.

The rationale offered by the government is that politicians should be held accountable for their statements and actions, and this exception would ensure that the public is kept informed. The opposition parties see it as a thinly veiled attempt to facilitate the use of attack ads. While our Government is content to claim method, their behaviour is madness of Shakespearean proportions.

First, we already have an exception to address the use of copyrighted material; fair dealing protects unauthorized use for the purposes of research, private study, criticism, review, news reporting, parody, satire and education, provided the use is fair. Political parties should apply the law under the same constraints as all Canadians (if anything, in a more edifying manner).

Second, using published material to report or contradict political opinion is part and parcel of civil society as it exists. If a member of the political realm gives a speech, a reporter may quote from the speech. An opponent may choose to quote out of context. The audience may find such a tactic repugnant, but it is hardly new.

Third, in the copyright amendments of 2012, this same Government introduced a new exception, unofficially titled the YouTube exception which supports the creation of user-generated content. Section 29.21 is suited to the creation of both commentary and fantasy. While I find attack ads loathsome, they are creative expression and may draw upon the exception.

Fourth, the issue of moral rights is given short-shrift by this Government’s proposal. It claims that moral rights of creators would not be affected, via the logic that creators have likely waived those rights. Moral rights protect the integrity and reputation of a work and its creator respectively. Canadian law forbids allying a work to a cause if the creator objects. To blithely indicate that the Government will not suffer for misusing a work is further evidence that this government only cares about legal liability, not ethical conduct.

Fifth, this desire to embed a copyright change in an omnibus budget bill flies in the face of this Government’s own stipulation of a five year, comprehensive review cycle of the Copyright Act. If musicians and students, librarians and broadcasters must wait to plead their case until 2017, this Government must abide by the same rule.

Finally, the Government’s proposal makes curious distinctions that undermine the universality of the grant of copyright and the use of exceptions. That it is designed for a small segment of Canadians is reprehensible. So too is the manner in which genre and medium are parceled out. For instance, news articles may be used but not photographs or music. Documentaries are not eligible for mining (even though documentarians are among the greatest users of exceptions to copyright, making reciprocation only appropriate). Fictional works are also not eligible, despite fiction being a rich resource for modern commentary. Presumably though, fiction that has passed into the public domain may be drawn upon—I await the invocations of Caesar, Macbeth and Hamlet.

Canada has enjoyed ten years of jurisprudence that yielded a fair dealing regime capable of addressing all situations with flexibility, to the benefit of all Canadians. To muddy up the Copyright Act with a narrowly worded, politically-minded exception places future courts in the awkward position of having one approach when adjudicating copyright for Canadians and a separate approach when adjudicating copyright for Canadian politicians. This will not facilitate the understanding or practice of the system of copyright in Canada.

 


There’s no back door that only works for good guys


My latest Guardian column, Crypto wars redux: why the FBI's desire to unlock your private life must be resisted, explains why the US government's push to mandate insecure back-doors in all our devices is such a terrible idea -- the antithesis of "cyber-security."

As outgoing Attorney General Eric Holder invokes child kidnappers and terrorists, it's like a time-warp to the crypto-wars of the early 1990s, when the NSA tried to keep privacy technology out of civilian hands by classing it as a munition (no, seriously). Today, the need for the public to be able to thoroughly secure its data has never been more urgent, and the practicality of a back-door mandate has never been less plausible.

Because your phone isn’t just a tool for having the odd conversation with your friends – nor is it merely a tool for plotting crime – though it does duty in both cases. Your phone, and all the other computers in your life, they are your digital nervous system. They know everything about you. They have cameras, microphones, location sensors. You articulate your social graph to them, telling them about all the people you know and how you know them. They are privy to every conversation you have. They hold your logins and passwords for your bank and your solicitor’s website; they’re used to chat to your therapist and the STI clinic and your rabbi, priest or imam.

That device – tracker, confessor, memoir and ledger – should be designed so that it is as hard as possible to gain unauthorised access to. Because plumbing leaks at the seams, and houses leak at the doorframes, and lie-lows lose air through their valves. Making something airtight is much easier if it doesn’t have to also allow the air to all leak out under the right circumstances.

There is no such thing as a vulnerability in technology that can only be used by nice people doing the right thing in accord with the rule of law.


Crypto wars redux: why the FBI's desire to unlock your private life must be resisted

(Image: graffiti04, David Bleasdale, CC-BY)

On the value of encrypting your phone

Freedom to Tinker - Thu, 2014/10/09 - 06:01
This is a true story. Yesterday my phone crashed, and it wouldn’t reboot. Actually it would do nothing but reboot, over and over, with a seemingly different error message every time. I tried all of the tricks available to a technically handy person, and nothing worked—I couldn’t get it out of the crash-reboot cycle. So […]

Guessing passwords with Apple’s full-device encryption

Freedom to Tinker - Wed, 2014/10/08 - 06:50
With the recently-introduced iOS 8, Apple has switched to a encrypting a much larger amount of user data by default. Matt Green has provided an excellent initial look at a technical levelandbig-picture leveland Apple has recently released a slightly more detailed specification documentandan admirable promise never to include backdoors. This move, and Google’s prompt promise […]

Update on Injunction Against Google (Equustek Solutions Inc. v. Google Inc.)

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe Last summer, Google was ordered by a Canadian court to de-index certain offending websites which were selling goods that were the subject of an intellectual property (IP) infringement claim (Equustek Solutions Inc. v. Jack, 2014 BCSC 1063 (CanLII), see our earlier post: Court Orders Google to Remove ...

Crowdfunding: Tips for the Start-Up

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe If you are a start-up considering the crowdfunding route, let's talk. Here are a few tips to consider: IP: Most crowdfunding portals require extensive disclosure of the start-up's business plans and product prototypes. That makes sense - after all, investors want to know what they're investing in. The start-up should consider ...

Crowdfunding: A Canadian Update

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe A Canadian company, Vrvana, Inc. is seeking $350,000 through Kickstarter, to finance its development of a virtual reality headset marketed as the Totem. Vrvana has elected to pursue a reward-based crowdfunding model. For example, minimal donations of $15 come with a newsletter subscription and event invitations. The top end contribution ...

Ownership of Photograph by Employee

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe While our last post dealt with the creation of photographs and other works of authorship by primates, robots and divine beings, this story is a little more grounded in facts that you might see in the average work day. When an employee takes a photograph, who owns copyright in ...

Monkey See, Monkey Do… However Monkey Does Not Enjoy Copyright Protection

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
By Richard Stobbe I know this story crested a few weeks ago, but who can resist it? A famous 1998 Molson Canadian ad posed a Canadian version of the infinite monkey theorem. The cheeky ad, showing a seemingly endless array of monkeys on typewriters, sidestepped the more important question about whether the monkeys as ...

Confidentiality & Sealing Orders in Software Disputes

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe Two software companies wanted to integrate their software products. The relationship soured and one of the parties - McHenry - purported to terminate the Software Licensing and Development Agreement and then launched a lawsuit in the Federal Court in the US, claiming copyright infringement and breach of contract. ...

When Milk is Not Milk: Dairy Farmers of Canada v. Cytosport, Inc.

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
By Richard Stobbe You can't get a trade-mark registration for a word that will deceive consumers. Put into legalese, section 12 of the Canadian Trade-marks Act says a trade-mark is not registrable if it is either "clearly descriptive or deceptively misdescriptive ... of the character or quality of the wares or ...

Online Terms - What Works, What Doesn’t

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe The online fine print - those terms and conditions that you agree to when you buy something online - it really does matter where those terms are placed in the checkout process. A recent US case illustrates this point. In Tompkins v. 23andMe, Inc., 2014 WL 2903752 (N.D. Cal. June 25, ...

Copyright Litigation and the Risk of Double Costs

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe An American photojournalist, Ms. Leuthold, was on the scene in New York City on September 11, 2001. She licensed a number of still photographs to the CBC for use in a documentary about the 9/11 attacks. The photos were included in 2 versions of the documentary, and the documentary ...

Court Orders Google to Remove Site from Worldwide Search Results

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe In a recent decision by the British Columbia courts (Equustek Solutions Inc. v Jack , 2014 BCSC 1063), Google has been ordered to de-index a website selling goods that were the subject of intellectual property (IP) infringement claims. While this may seem quotidian - after all, Google does ...

course packs at home and abroad

Fair Duty by Meera Nair - Sun, 2014/10/05 - 23:21

As I caught up on my reading, I discovered that course packs continue to make headlines. The September 17th issue of Outlook India featured “Copy This” by Gautam Bhatia; a few days later, The Varsity (University of Toronto’s student newspaper) published “After Access Copyright” by Iris Robin. Both articles speak to the continued need to probe the use of course packs with nuance.

Bhatia expertly takes readers through an ongoing dispute whereby in 2012 Oxford University Press, Cambridge University Press and Taylor & Francis, instigated a lawsuit against a copy shop operating at Delhi University. The alleged crime was copyright infringement in the production of course packs. (I had previously written about the suit here.) Further coverage from Spicy IP indicates that many of the excerpts reproduced fell within the quantitative measure of 10% (see here and here) that is considered fair use by American courts in the context of education. The guidance of 10% is also followed by many Canadian educational institutions.

Bhatia indicates that Indian educational institutions are being pressed to adopt blanket-licenses with respect to provision of course packs. Aware of the culture of licensing and market-superiority that was once the predominant atmosphere of copyright in North America, particularly in the United States, Bhatia writes:

Even in Canada, a country immensely richer than India, the problem has been noticed. Canadian universities initially agreed to a licensing arrangement that was pegged at a reasonable price. Once they opted in, however, the price steadily increased, until it became unsustainable.

Canadian courts have been far more sympathetic to the predicament of universities and students than their American counterparts. In two important cases, they eschewed the economic approach, identified [fair dealing] as a “user’s right”, and imposed the burden of proving direct financial damage upon the publishing houses. The publishing houses were unable to meet this challenge.

On reflection, that is hardly surprising. If students are not allowed to copy, it is not the case that they will spend ten times the money upon the original textbook. In most instances, they will simply be unable to do so. They will not buy the book at all. And if that is true in a country as rich as Canada, it is certainly true—in a much stronger sense—for one as poor as India.

Turning to The Varsity article; Robin writes that course pack fees have increased since the university moved away from its Access Copyright blanket license. On cue, representatives from writers’ organizations provided comments of the I-told-you-so variety. Whereas Lisa di Valentino considers the larger question of why and suggests: “More likely, this is an issue with communication, specifically between the library and the instructors.” Noting Robin’s coverage – that the University of Toronto  is engaging in outreach to acquaint teachers with a better understanding of copyright and case law, as well as the myriad of possibilities to reduce costs to students – di Valentino concludes with:

UofT (and other AC-less institutions) is going through a transition phase. Procedures and protocols are changing in ways that directly affect how instructors do their jobs. Copyright is not just for lawyers and librarians anymore. Copyright literacy is fast becoming a necessary element of faculty members’ toolkits.

As publishers, teachers, and students wrestle with the seeming problem of piracy (with its seeming solution of licensing), it is important to remember that copyright only applies to “substantial” reproductions of work. An insubstantial portion of a work does not qualify for protection (see Section 3.1 of Canada’s Copyright Act, or Section 14 of the Indian Copyright Act). We only need to rely on exceptions such as fair dealing when the amount reproduced exceeds the insubstantial, and is not already legitimate use by other means (i.e., library-subscriptions, open-access, publicly availablility, or Creative Commons).

Fair dealing should never be summarily reduced to a measure of quantity – fair dealing can amply support reproducing 100% of a work, depending on the circumstances. However, from an administrative perspective, using a guide of 10% is prudent; the amount is not only cautious but it may not even cross the threshold of substantial. As long as teachers are aware that 10% is not the ceiling, and that fuller scrutiny via the framework offered in CCH Canadian  facilitates a legitimate decision to copy, the flexibility possible within the system of copyright will be preserved.


Launching YouTube for Government

Google Public Policy BLOG - Thu, 2014/10/02 - 10:07
Cross-posted from the Google Politics & Elections Blog
Posted by Brandon Feldman, YouTube News & Politics

From live streams of the State of the Union and legislative hearings, to explainer videos on important issues and Hangouts with constituents, YouTube has become an important platform where citizens engage with their governments and elected officials.

In order to help government officials get a better idea of what YouTube can do, we are launching youtube.com/government101, a one-stop shop where government officials can learn how to get the most out of YouTube as a communication tool.


The site offers a broad range of YouTube advice, from the basics of creating a channel to in-depth guidance on features like live streaming, annotations, playlists and more. We’ve also featured case studies from government offices around the world that are using YouTube in innovative ways.

If you're a government official, whether you are looking for an answer to a quick question or need a full training on YouTube best practices, we hope this resource will help you engage in a rich dialogue with your constituents and increase transparency within your community.

Individual defendants found liable in Grooveshark case

Recording Industry vs The People - Mon, 2014/09/29 - 15:50

In UMG Escape Media, the Court has granted summary judgment finding the individual defendants to be liable for copyright infringement.

September 29, 2014, decision granting summary judgment against individual defendants Ray Beckerman, P.C.

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