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Posted by Jennifer Haroon, Access Principal
Imagine a world where you spent 30% of your monthly income on basic Internet service. Could you pay? What might you have to give up? For billions of people, these costs—and questions—are an unaffordable reality that stop them from accessing the Web.
Today, Google is joining more than 30 members to launch the Alliance for Affordable Internet (A4AI), a new coalition that cuts across boundaries of geography, sector, or size. Our goal? To help bring down Internet costs through policy change.
New technologies play a crucial role in bringing the Internet to more people worldwide—we’ve developed and invested in many of these big ideas over the years. We broke new ground with balloon-powered Internet access, are bringing broadband to Africa with TV White Spaces, and are funding organizations like the Internet Society to develop Internet Exchange Points in emerging markets.
These technologies can have major impact, but no single solution can connect the 5 billion people living without Internet access today. Policy change can help new innovation take hold and flourish; outdated policies can stifle progress. In Kenya and other markets that have adopted national broadband plans, policy change has delivered results, fast. A4AI will focus on those policy changes that can bolster new access technologies and initiatives and make the Internet more affordable to people worldwide.
Initiated by the World Wide Web Foundation, A4AI includes members from the technology, government, and nonprofit worlds, from developed and developing countries. Google—along with other Global Sponsors—joined the alliance in its early days to help establish the vision that exists today, as well as rally more members that share our mission for affordable Internet access.
A4AI has a specific goal in mind: to reach the UN Broadband Commission target of entry-level broadband access priced at less than 5% of monthly income worldwide. (According to the ITU, households in the developing world pay roughly 30% of monthly income for a fixed connection, so there’s a lot of work to do.) We’re working with A4AI on several initial projects, including:
Ultimately, A4AI is about making the world a more connected place. Over 90% of people in the 49 least developed countries are still not online. A4AI wants to help people in these countries to get access, to find a door to new information, opportunities, and ideas. Dr. Bitange Ndemo, the honorary chairperson of A4AI, has called for the need to remove “analog policies that are holding back the digital revolution” in emerging markets.
We couldn’t agree more.
Claire and I have been “happy mutants” for several years; and so our 10 year-old son, Joseph, has often seen us chuckle at a Boing Boing posting, marvel at some piece of LEGO engineering or share a piece of Whoviana. I’ve read a few of your books, and I have recently tried to introduce some of your YA fiction to him (without success, so far). Our son enjoys manga, anime and comics. He occasionally will create his own comic for our amusement.
The other day, he created this comic based upon his noticing a certain hidden connection between your last name and a certain character with a blue box we know and love. Maybe it’s not too late to substitute you for Peter Capaldi?
While we haven’t yet gotten into discussions with him about copyleft, Creative Commons and the like, he has obviously picked up from somewhere that rights are an important thing to assert.
Thank you, Joseph! I'm honored.
- As a follow-up to our earlier post about Revoking an “Implied” Software License, this interesting US case (Davis v. Tampa Bay Arena Ltd.) deals with the use of photographs on Facebook postings. A freelance photographer, Davis, worked for the Tampa Bay Arena, taking photos for various events. The photographer and ...
I was privileged to appear on Michael Krasny's Forum on KQED in San Francisco this morning as part of the San Francisco Public Library's One City/One Book celebrations for my novel Little Brother. The KQED people already have the audio (MP3) up on the Internet, which is pretty zippy production-mojo.
Sarah James reports that the US, EU, India, and Argentina announced plans at the recent WIPO General Assembly to sign the WIPO Marrakesh Treaty. She notes:
As of last Wednesday, during its discussion on the floor of the General Assembly, the number of signatory countries was 54. Hopefully, that number will soon rise, as a number of countries used the opportunity to announced their intent to sign within the near future. The countries which announced themselves nearly ready to take the jump and become signatories where India (video A/51-Wed 25- English: Afternoon Session @23:44), The United States (video A/51-Wed 25- English: Afternoon Session @33:30), the European Union and Argentina (video A/51-Wed 25- English: Afternoon Session @42:35). This is big news when one considers where the majority of most intellectual property content resides, and bodes well for the future of this promising document. But while some delegates, such as the one from the United States stated that they would be ready to sign within a matter of weeks, other delegates, such as the one from the EU remained more vague in their deadline.
The need for a large-scale Canadian digitization strategy has been readily apparent for many years, with experts repeatedly pointing to the benefits that would come from improved access to Canadian history and culture. While other countries have marched ahead with ambitious projects that often incorporate historical text records, photographs, and video, Canada has fallen behind.
Library and Archives Canada, which is charged with preserving and making accessible Canadaâs documentary heritage, has led the digitization effort, but most of its work over the past decade has failed to bear much fruit.
Given the past disappointments, my weekly technology law column (Toronto Star version, homepage version) notes the launch a massive new digitization project should have been a cause for celebration. Last June, the LAC and Canadiana, an alliance of public and academic libraries focused on digital preservation, announced plans to digitize and create metadata on 60 million historical Canadian documents. The documents are currently in microfiche and the project envisions digitizing the images and adding transcriptions and metadata (data about data content) to improve their searchability.
Yet as the details of the project dubbed HÃ©ritage leaked out, controversy arose with concerns that the historical documents would be placed behind a paywall that would require individual Canadians to pay monthly fees for access. That generated a significant outcry from many groups, with then-Canadian Heritage Minister James Moore assuring the House of Commons that the new head of LAC would closely examine the project.
After the outcry subsided, however, HÃ©ritage began to proceed largely as planned. The key supporters of the project - Canadiana, the major library associations, and the LAC - tried to assure critics that their concerns were unfounded, promising to make the digitized microfiche copies freely available to all and restricting additional fees to value-added services such as transcription or metadata. However, newly obtained documents under the Access to Information Act raise troubling questions about public access and promises of exclusivity made by the LAC.
Among the documents obtained is the previously unreleased contract between LAC and Canadiana (underlying MOU here). The contract, which was signed in May 2013, does not provide for digital public access to the documents without a paywall. Rather, the minimum requirements are that the LAC will provide physical access in its reading rooms, Canadiana will charge fees for hosting the content, and at least ten per cent of the collection will be made freely available online each year. After ten years, the entire collection will be openly available to the public online.
The contractual terms are inconsistent with public statements that provided assurances that all digital copies would be publicly available on completion and that the ten per cent restrictions would only apply to works with additional transcription or metadata. Canadiana officials now say that they plan to go beyond the contractual requirements, yet it is surprising that the LAC did not insist on full public access within the contract.
The contract also grants Canadiana exclusive rights to host and make accessible online the entire collection for ten years. However, internal LAC documents readily acknowledge that there was nothing to stop anyone from doing the same thing, since the documents are in the public domain and there is free access to the physical copies.
In fact, granting exclusivity rights is difficult to reconcile with the role of the LAC in digitizing the historical records, which is far more extensive that is generally appreciated. The contract indicates that the LAC will digitize no less than two-thirds of the collection. Given that the LAC is doing most of the digitizing and Canadiana hopes to rely on crowdsourcing techniques for some of the transcription and metadata, the extensive public contribution creates real doubts about the need for any paywall or exclusivity.
The HÃ©ritage project promises to offer unprecedented access to Canadian historical documents. Yet the fine print of the agreement may leave many wondering how a deal could have been reached without mandating free online public access, while granting exclusive rights that do not exist.
In two earlier posts (see here and here), we reviewed the Alberta Court of Appeal's guidelines to assist with basic contract interpretation (in Bhasin v. Hrynew). In this post we wrap up our primer on the Court's guidelines. According to the Court: Mental suffering is not compensated in contracts law (the only ...
As mentioned in Part 1, the Alberta Court of Appeal (in Bhasin v. Hrynew) has provided some helpful guidelines to assist with basic contract interpretation. If you deal with contracts in your job, then here are some tips to see how the courts will interpret your agreements. From time to time a ...
The 35th International Conference of Data Protection and Privacy Commissioners wraps up today in Warsaw, Poland. The conference has become an important annual event, facilitating greater global cooperation on privacy and providing the commissioners with a venue to speak out on key privacy issues. This year, the commissioners issued one declaration (on the "appification" of society) and nine resolutions. The resolutions cover a wide range of issues including profiling, international enforcement, anchoring privacy in international law, and web tracking.
Yet despite the enormous public attention to surveillance issues over the past few months, there are no specific resolutions on the issue. In fact, surveillance is only mentioned once, in a resolution on openness of personal data practices which urges organizations to be more open about their practices and adds that governments should do the same. Perhaps unsurprisingly, the U.S. Federal Trade Commission abstained from voting on the resolution due to the reference to governments. The U.S. may have been particularly uncomfortable with the final paragraph in the explanatory note:
Recent revelations about government surveillance programs have prompted calls for greater openness with respect to the scope of these programs, increased oversight and accountability of these programs and more transparency from the private sector organisations that are required to provide personal data to governments. The revelations have also occasioned debate about the appropriate level of transparency associated with such programs in light of relevant national security, public safety and public policy considerations.
The abstention highlights the challenge global privacy commissioners face in finding consensus on surveillance concerns. Interestingly, while the commissioners struggled to tackle the surveillance issue, Brazilian President Dilma Rousseff had no hesitation in addressing the issue directly at the United Nations, where she argued:
In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy. In the absence of the respect for sovereignty, there is no basis for the relationship among nations.
The strong speech recognized that there is a need to speak out loudly on surveillance. It is discouraging that the world's privacy and data protection commissioners seemed to struggle to do so and faced U.S. opposition to the only reference to the issue.
Mike Masnick, writing for Techdirt this week, brought the plight of Lauren LoPrete to wider attention. LoPrete is the creator behind the delightful Tumblr site This Charming Charlie, and, the recipient of take-down actions which claimed that her work violated American copyright law.
LoPrete combines snippets of lyrics from The Smiths with Peanuts comic strips, drawn by Charles Schulz (1922-2000), to delightful results. However, Universal Music Publishing Group (the licensing arm of The Smiths), issued multiple take-down notices to Tumblr, arguing that LoPrete had engaged in copyright infringement.
Under American law, in order to avoid liability, Internet Service Providers must remove allegedly infringing material without dwelling on details such as due process. According to Tumblr’s Terms of Service (dated to 2012-03-22), after the removal, a subscriber may file a counter-notification (which must include his or her name, address, telephone number and email address) to the Internet Service Provider, which is then forwarded on to the complainant. If the complainant does not take further action within ten days, the material “may be restored.”
LoPrete initially chose to discontinue her work. But, after she posted a farewell message, lawyers rallied to the cause and offered pro-bono services to help reinstate her work. The firm of Booth Sweet LLP responded accordingly to Tumblr:
So much to answer for! Yet our client believes in good faith that these three posts, like all posts on her charming website, do not infringe the copyright for any Smith’s lyrics as they constitute fair use in accordance with 17 U.S.C. § 107. …
Their explanation covers the salient details (the use is transformative*, very little of the lyrics are used in each strip, and the new works in no way compete with the market of the songs) with admirable clarity and brevity. As to whether the works are reinstated, Universal has five more days to ponder their actions. Covering this story for MotherBoard, Fruzsina Eördögh writes: “When it comes to DMCA take-downs on the Internet, no one is more Lucy van Pelt-like than Universal.” And so we wait for September 30.
Amusing as this story is, particularly in its David v. Goliath dimension, and admirable in its ingenuity and creativity, it also serves to illustrate a vital difference between American and Canadian copyright law.
Canadian Internet Service Providers (ISPs) are shielded from aggressive (and possibly baseless) copyright claims by virtue of the Canadian system of notice-and-notice. ISPs must convey complaints to subscribers, and maintain suitable records should the issue lead to litigation; that is all. ISPs are not required to remove material, disconnect subscribers, betray subscriber privacy, or take on the risk of liability.
However, if the TransPacific Partnership Agreement (TPP) should come to Canada, that sensible, made-in-Canada approach becomes a thing of the past. Canada would be obligated to adopt the notice-and-takedown approach of the United States. In an appearance to the House of Commons Standing Committee on Trade in June 2013, Michael Geist emphasized the backwardness of the TPP in connection to Canadian copyright law; specific to ISP liability he said:
This approach establishes the obligations for Internet providers and intermediaries when there are claims of copyright infringements, and grants copyright holders powers to raise allegations of infringement with the sites and their subscribers. Moreover, it protects the privacy of subscribers and does not result in takedowns of content based on mere allegations. During the debates on Bill C-11, Canadian Heritage Minister James Moore repeatedly pointed to notice and notice as an example of a positive Canadian-specific approach. Yet according to leaked documents, the TPP would require that Canada drop its approach in favour of a more draconian takedown system that could stifle free speech and result in the removal of content without the need for any proof of infringement.
Two years earlier, when Parliament explored amendments to Canadian copyright law (through then-named Bill C-32, which later became Bill C-11, which passed in June 2012 and entered into law in November 2012) Geist wrote about the effectiveness of notice and notice, as documented by the ISPs themselves. For instance:
… Rogers came prepared with evidence about how the system functions and on its effectiveness. It reports that it processed 207,000 notices in 2010, sending those notices to about five percent of its customer base. In other words, 95% of its subscribers are not identified by rights holders as copyright infringers – far from the piracy haven that it often claimed. Of the households that receive notices, only 1/3 receive a second notice. Of those that receive a second notice, only 1/3 of those receive a third notice. …
Returning to the immediate comparison, Canada does fall short of United States copyright law in one respect; the continued structure of fair dealing as a set of specified categories. Americans enjoy fair use’s language of “for purposes such as …” which gives shelter to uses that do not fit a set purpose. A scenario not uncommon in art, as I have identified in a post prior to the last amendments; see sometime art is just art. Fortunately, Canadians now have an expanded set of categories for fair use: research, private study, criticism, review, news reporting, education, parody and satire. And with continued reminders from our Supreme Court that fair dealing should be interpreted liberally, one can hope that artistic endeavor will more comfortably fall within fair dealing.
* Note: neither American nor Canadian law requires that a use be transformative before it can be considered fair use or fair dealing. The factor of transformation lends itself to discussion of new works, but is irrelevant in questions of unauthorized copying where the purpose is to disseminate the original work. In those situations, other aspects of the fairness analysis are germane.
Update — September 28, 2013 Good news. The Los Angeles Times editorial board writes that Universal is dropping the claim of infringement.
Eben Moglen to give a series of public talks on "Snowden and the Future"
If you'd like to catch me while I'm there, your best bet is my evening presentation with Nico Sell at the SFPL main branch (100 Larkin Street) at 6PM on Oct 2. I'm also doing a presentation at Borderlands Books (866 Valencia St) on Oct 3 from 12:30-1330h. I hope to see you there!
Reports over the past week have indicated that the government plans to unveil a "consumer first" agenda for its upcoming Speech from the Throne. The speech, which will set out the federal legislative and policy agenda for the next two years, is widely viewed as the unofficial start of the 2015 election campaign.
My weekly technology law column (Toronto Star version, homepage version) notes there is little doubt that the battle over wireless pricing, which hit a fever pitch over the summer in a very public fight between Industry Minister James Moore and the incumbent telecom companies, will figure prominently in any consumer agenda. The government is convinced that it has a winner on its hands - consumer frustration with Canadaâs high wireless prices suggests that theyâre right - and will continue to emphasize policies geared toward increasing competition.
Yet a consumer first agenda should involve more than just taking on the telcos on spectrum (or the airlines over their pricing practices). A digital consumer first agenda should prioritize several other issues that have similar potential to strike a chord with Canadians across the country. At the heart of those digital issues are two ongoing consumer concerns: pricing and protections.
On the pricing front, monthly wireless bills are only part of the high price Canadians pay for communications services. The Canadian Radio-television and Telecommunications Commission has embarked on a review of wireless roaming fees, which studies have found rank among the highest in the world.
Broadband Internet services would also benefit from a more aggressive, consumer-first regulatory approach. The government previously objected to usage-based billing schemes, but its emphasis on facilitating competition through independent providers has encountered resistance in recent months. For example, some customers of TekSavvy, a large Ontario-based independent ISP, have been stuck for days without service as Rogers has been slow to address problems that arise from its network.
Inflexible and costly television packages should also come under closer scrutiny. The history of broadcast distribution through cable and satellite providers is one in which consumer interests were largely ignored. A consumer first approach would increase choice by opening the market to greater competition (eliminating foreign investment restrictions would be a start), mandating the availability of pick-and-pay services so that consumers could shift away from large bundles of channels they donât want, and requiring providers to offer broadband Internet services without television packages, so that consumers can "cut the cable cord" if they so desire.
Lower wireless, Internet, and cable bills would be a welcome change, but Canadians also need better digital protections against online harms. The long-delayed anti-spam law, which provides safeguards against spam and spyware, should be brought into effect by finalizing the necessary regulations. The law has been delayed by intense corporate lobbying, however, it enjoys strong support from consumer groups and was passed by Parliament in 2010.
Consumers similarly require better privacy protections since Canadian private sector privacy legislation is now woefully outdated. Reforms arising out of hearings on the law that date back to 2006 died with the prorogation earlier this month, leaving Canadian consumers with a law that no longer meets international standards. Putting consumers first should mean that businesses are obligated to disclose security breaches and face tough penalties for violations of the law.
Canadian consumers would also benefit from protections against misuse of intellectual property rights. That includes safeguards against patent trolls that threaten small businesses and increase consumer costs as well as provisions to ensure that thousands of Canadians do not get caught up in questionable lawsuits over copyright claims that seem primarily designed to pressure them into expensive settlements.
A consumer first agenda is long overdue in the digital environment, where the interests of individual Canadians have often been forgotten. The next Speech from the Throne offers the chance to change course by promoting policies that result in fairer pricing and stronger online protections.
Industry Canada released the names of the bidders for its forthcoming spectrum auction yesterday with the disappointing news that no major new entrants will be using the auction to enter the Canadian market. That is rightly viewed as a big win for the incumbents, who should have little trouble acquiring the spectrum they want in the upcoming auction and will not face any new competition from deep-pocketed global wireless players. Instead, despite the persistent efforts of the federal government to convince new competitors to enter the market, the Big 3 will continue to dominate Canadian wireless services for the foreseeable future. With prices high by global standards and mobile broadband penetration lagging compared to other countries (an ITU study released over the weekend ranked Canada 32nd worldwide for mobile broadband penetration), consumers are the immediate and obvious loser for the moment.
Yet the incumbent victory did not come easily, coming at the cost of a scorched-earth public relations war with the federal government that the incumbents are already trying to downplay. However, having failed to address market concerns through new competitors, it may now fall to the government to shake things up through increased regulation. There are no shortage of options, with two big steps (the consumer wireless code that limits contract length and potential CRTC regulation of wireless roaming pricing) already underway. After yesterday's release, Industry Minister Moore stated that "in addition to this auction, our Government will continue to aggressively pursue policies that ensure consumer interests are at the core of all Government decisions."
What policies might Minister Moore have in mind?
There should be little doubt that the mere threat of regulation can lead to lower prices and market reforms (witness Bell's decision to slash U.S. roaming prices in half weeks after the CRTC roaming initiative). In fact, just as the incumbents sought to delay the spectrum auction when it appeared that Verizon was going to enter the market, we can expect calls to delay any further policy action until there are further studies or opportunities to take stock of recent developments.
In this case, the government need not hand the incumbents another victory by delaying much-needed policy reforms. Full pricing regulation is rightly viewed as a last resort, yet there are other possibilities. For starters, the elimination of foreign investment restrictions in both the telecom and broadcast distribution sectors as well as tougher tower sharing requirements and domestic roaming rules to make it easier for smaller players to expand their networks.
Another mechanism to generate more competition would be to create a regulated mobile virtual network operator market, a vehicle that Verizon reportedly explored using as part of a potential Canadian entry. MVNOs typically do not own spectrum or network infrastructure. Instead, they purchase network access at wholesale rates from existing operators and offer it to consumers with their own retail pricing. MVNOs such as Canadian-owned Ting have become a hit in the U.S. but are not even available in Canada. By setting the wholesale price, the government could use regulation to create a new batch of MVNO competitors in Canada, much as it has tried to do with Internet access services.
The other big alternative step is full structural separation. Peter Nowak has been advocating this approach for some time, arguing for splitting the incumbents into companies that manage phone and Internet networks and companies that offer services to customers. It is unquestionably a major market change, but with the Canadian wireless environment seemingly stuck in neutral, the government would receive well-deserved plaudits for taking bold action to address the ongoing competitiveness concerns.
In Capitol Records v. Vimeo, LLC, the Court has partially granted and partially denied both sides' summary judgment motions, holding that Vimeo is protected by the DMCA "safe harbor", but that there are factual issues over certain videos:
-as to 10 of the videos, whether they were stored "at the direction of the user"; and
-as to 55 of the videos whether Vimeo had either "red flag" or actual knowledge.
September 18, 2013, Memorandum Decision and Order, Partially Granting and Partially Denying Summary Judgment Motions
While I purchased the Into Darkness DVD and saw 3D in theatres, I wasn't happy with the movie. These seem to be Star Trek themed action movies -- great visual effects, but none of the story or character complexity that I enjoyed within the Trek franchise. I found the references back to Star Trek II: The Wrath of Khan seemed forced, and the soundtrack sounded nearly the same as the first of the reboots.
Will another director make a difference? Should I be excited about the next, or should I remain bored -- my current feeling is I may not bother to see the next in theatre and maybe only watch a borrowed DVD is someone else bothers.
Last week Howard Knopf alerted us to the latest movement by Access Copyright to impose blanket copyright fees across universities and colleges in Canada, regardless of ongoing work by educational institutions to ensure that legitimate copyright fees are paid and that legitimate fair dealing is not denied. In his post of 17 September 2012 Knopf provides Access Copyright’s statement of case to the Copyright Board of Canada, and draws attention to a number of details including the collective’s position that:
… the fair dealing policy… promoted by the Association of Universities and Colleges of Canada and the Association of Canadian Community Colleges and adopted by many Educational Institutions, which purports to characterize as fair dealing amounts of copying essentially identical to that licensed by Access Copyright, is unfair and results in copying that is not fair
The statement of case explains in detail what Access Copyright will do (arguments to be presented, witnesses to be called, evidence to be produced, etc.) when the Copyright Board hears this case on 11 February 2014. The Board will then either signal a shift in thinking on their part, or offer Canadian education yet another opportunity for further strengthening of fair dealing by the Supreme Court of Canada. Unpacking that sentence will take several paragraphs; I ask for patience from readers.
The starting point is the work of law professor Graham Reynolds (previously at Dalhousie University, now at the University of British Columbia). In his chapter “Of Reasonableness, Fairness, and the Public Interest, Judicial Review of the Copyright Board’s Decisions in Canada’s Copyright Pentalogy,” Reynolds illustrates that, when certifying the Access Copyright tariff for educational institutions with respect to photocopies of excerpts in K-12 schools spanning 2005-2009, the Copyright Board applied a very narrow interpretation of the principles enunciated by the Supreme Court of Canada in CCH Canadian v. Law Society of Upper Canada. The Copyright Board’s decision was appealed and finally settled by the Supreme Court (favorable towards fair dealing) in one of the famed pentalogy decisions, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). The difference of opinion between the Board and the Court leads, as Reynolds suggests, to the conclusion:
[T]hat fairness (in the context of fair dealing) is not as discretionary a concept as it appears to be. [Alberta(Education) … clarifies] that the purpose of the Copyright Act requires a broad, liberal approach to fairness. By implication then, fairness is not broad and open-ended; rather it is infused with certain expectations with respect to the way in which it is to be applied (namely, in a large and liberal manner).
Reynolds makes plain that the purpose of the Copyright Act is evolving, moving away from an author-centric approach to an instrumental-public interest approach. Reynolds is equally specific that such a move is not an abandonment of owners’ rights; instead, the shift only ensures that limitations upon those rights are upheld as necessary to invigorate and maintain the public domain. In their examination of the K-12 situation of excerpts, the Copyright Board aspired to the earlier approach, even though the Supreme Court had consigned that approach to history.
The evolution of purpose of copyright in Canada illustrates a well-functioning system of laws and courts. Those authorities have made it abundantly clear that legal precepts are not immutable; they evolve in concert with developments in society. Evolution may take time, but is infinitely preferable to revolution.
The delay on the part of the Copyright Board can be explained with recourse to its very function; the Board’s mandate begins with:
The Board is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works …”
This is not to imply that the Board is solely concerned with setting market prices. Yet it is hardly an accessible venue for discussion of exceptions; the lengthy and expensive process tends to discourage representations of public interest. As Knopf pointed out, even the Association of Universities and Colleges of Canada, in their wisdom, “abruptly withdrew its objections and withdrew from the Copyright Board hearing of April 2012, leaving its member universities unrepresented after having spent about $1.7 million.”
The Board’s past discomfort with endorsing a large and liberal interpretation of fair dealing (in both purpose and fairness) was quite evident; when reviewing the K-12 situation of excerpts, the Board wrote: “CCH now is the unavoidable starting point (para 75).” The connotation of “unavoidable” does not suggest the Board relished the task at hand. However, as Reynolds writes:
The end result is that post-Alberta (Education), the Copyright Board is significantly constrained in its ability to shape Canadian copyright law. Abella J’s reasons for judgment clarify that the Copyright Board does not have unlimited discretion under fairness (and fair dealing more broadly) to implement policy goals or promote values that are inconsistent with the purpose of the Copyright Act, as interpreted by the Supreme Court of Canada.
The difficulty for Canadian educational institutions, and Canadians in general, is that Access Copyright seems happy to play the game of “heads-I-win, tails-we-play-again”. In repeated and continued efforts to roll back the decade-plus evolution of copyright’s purpose — through lobbying, litigation and tariff applications – they display a lack of logic, as well as a questionable use of their members’ resources.
According to Access Copyright’s website, the following portions of the funds collected are withheld before distribution:
An administrative holdback of 20% to cover Access Copyright’s administrative and operational costs.
An allocation of 5% of copyright licensing royalties has been made toward costs for current and future tariff proceedings before the Copyright Board of Canada. These tariff proceedings help us ensure fair compensation for creators and publishers when their works are copied.
An allocation of 1.5% of copyright licensing royalties collected has been made for a cultural fund approved by Access Copyright’s board of directors.
The administrative holdback (20%) is high enough, leading to the question of why a further 5% must be withheld for future days in court. But that is not all; the information for title specific distribution indicates that an additional 25% of royalties collected through the fee increase covering 2005-2009 has been reserved to “support current and future tariff proceedings held before the Copyright Board of Canada.”
Access Copyright is gambling (with its members’ money) that the Board’s decision will be favourable to copyright holders. But, if the Supreme Court of Canada should be called upon to revisit the issue, Access Copyright would do well to remember that each adjudication of fair dealing at the Court within the last ten years has only raised the profile of fair dealing and strengthened its application.
for Global Memo
US Congresswoman Zoe Lofgren has released a bipartisan letter calling on US Secretary of State John Kerry to oppose the re-election of WIPO Director General Francis Gurry over concerns relating to the WIPO export of computers to Iran and North Korea.
Lofgren has been an activist on intellectual property issues in the United States, opposing the Stop Online Piracy Act, promoting the broadening fair use provisions through the Unlocking Technology Act (see also), advocating open access to taxpayer-funded research, and drafting Aaron's Law to reform the Computer Fraud and Abuse Act, under which internet activist Aaron Swartz, who committed suicide after undergoing prosecution under that act, was charged.
Intellectual property "supporters" such as Tom Giovanetti are, on the other hand, lining up in support of Gurry. Giovanetti has said, in 2012:
I’ve been troubled by what I think is an unwise and ill-informed reaction on the part of some in the United States, especially from folks on my side of the aisle, who are rightly skeptical and critical of the United Nations as a whole, but who miss the important fact that WIPO is a different kind of UN agency—indeed, is unique among UN agencies in at least one important respect.
The Lofgren letter, on the other hand, calls Gurry's behaviour "erratic and secretive". It appears that the technology export issue may continue to dog Gurry as the WIPO election process goes forward, and that the larger issues of WIPO transparency and accountability may be important in the race.
The Globe and Mail reports that Rogers Communications is trying to distance itself from this summer's spectrum auction/Verizon battle. Edward Rogers apparently told an investor conference:
"It's been like watching a bit of a soap opera. Rogers has tried to be not as engaged in the dramatics of it and tried, as best we can, [to] offer more of a practical alternative for government, for industry."
Uh huh. So Vice-Chair Phil Lind claiming in July that "everything that they could possibly ask for they're doing for Verizon" was staying out of the fray? Or CEO Nadir Mohamed warning in August that the government's approach could result in slower wireless speeds was offering a practical alternative? Sending a company-wide pre-written email urging employees to write to the government and registering 13 board members to lobby the government was not engaged? Running advertisements about employees losing their jobs in Moncton wasn't dramatic? Arguing that a fourth carrier won't work in Canada was another practical alternative? The record speaks for itself and no amount of spin will change the fact that Rogers, Bell, and Telus will have to live with the consequences of behaving like "raving lunatics" (in the words of Wind Mobile CEO Anthony Lacavera).
Other key sites
Digital Copyright Canada BLOG