Digital Copyright Canada

As I mentioned in my March Locus column, I'm celebrating the tenth anniversary of Down and Out in the Magic Kingdom by m planning a prequel. volume As part of that, planning'I going to read aloud the entire text of that first book into the podcast, making notes on the book as I go. Here's part nine, in which the reading concludes.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3 link

Last week, the Privacy Commissioner of Canada released her vision of privacy reform, including the need for security breach disclosure legislation, order-making power, and greater transparency of warrantless disclosure. On the same day as Commissioner Stoddart released her position paper, the government was embarrassing itself in the House of Commons by formally opposing security breach disclosure legislation on the weakest of grounds. The opposition to meaningful privacy reform is particularly discouraging given the thousands of breaches that have occurred in recent years from within the government itself and its claims to be concerned with the privacy of Canadians.

The government introduced legislation featuring security breach disclosure requirements in Bill C-12 in September 2011 (itself a reintroduction of the former C-29 that was first introduced in 2010).  Since first reading, the bill has not moved. It would take very little for the government to complete second reading and send the bill for study to committee, yet more than a year and a half later, the bill languishes, certain to die this summer when the government hits the parliamentary reset button. Frustrated by the inexplicable delays, NDP MP Charmaine Borg introduced a private member's bill in February (C-475) that includes a mandatory security breach requirement roughly similar to the government's own bill. 


Both bills include notification requirements to the Privacy Commissioner of Canada in the even of certain security breaches. A comparison of the two bills is posted below:

Bill C-12 (Government Bill)
Bill C-475 (MP Borg Private Member Bill)
(1) An organization shall report to the Commissioner any material breach of security safeguards involving personal information under its control. (2) An organization having personal information under its control shall notify the Commissioner of any incident involving the loss or disclosure of, or unauthorized access to, personal information, where a reasonable person would conclude that there exists a possible risk of harm to an individual as a result of the loss or disclosure or unauthorized access.
(2) The factors that are relevant to determining whether a breach of security safeguards is material include
(a) the sensitivity of the personal information;
(b) the number of individuals whose personal information was involved; and
(c) an assessment by the organization that the cause of the breach or a pattern of breaches indicates a systemic problem.
(3) The factors that are relevant in determining whether a loss or disclosure of, or unauthorized access to, personal information would be considered by a reasonable person as creating a risk of harm are
(a) the sensitivity of the personal information; and
(b) the number of individuals whose personal information was involved.

Both bills follow the notification to the Commissioner with a potential notification to individuals who may be affected by the breach.  Notwithstanding the similarities, government MPs used debate in the House of commons last week to mischaracterize C-475.  Conservative MP Parm Gill stated:

I wish to point out that the data breach notification regime proposed in Bill C-475 takes a starkly different approach than that in Bill C-12. Bill C-475 requires organizations to first notify the Privacy Commissioner of every potential data breach, regardless of context or remoteness. The Privacy Commissioner must then determine whether affected individuals should be notified. Given the potential number of breaches that could be reported, such a regime would increase costs and burdensome compliance procedures for Canadian businesses and would impose an unwieldy financial and administrative burden on the Office of the Privacy Commissioner, generating more costs than benefits for taxpayers.

As the table notes, the claim that there is a required notification of every breach in C-475 regardless of context or remoteness is simply false. Gill also wrongly claimed that C-475 would not capture breaches only affecting a few individuals and that the bill does not define "appreciable risk of harm."  In fact, both C-12 and C-475 use roughly the same definition of harm.  The inaccuracies continue as Gill claims that C-475 creates uncertainties on the form of notification, yet it follows much the same approach as C-12. After Gill's inaccuracies, MP Mike Lake picks up the torch, making many of the same claims and then noting that C-12 addresses a broader range of PIPEDA reforms.  That is an unfair comparison, given that C-475 only tries to address a narrow range of issues and only comes after the government sat on its own bill for a year and a half (other than a single request for unanimous consent to send the bill to committee).

While the government would have the public believe that its bill is preferable to Borg's, the real message here is clear: the government isn't serious about privacy reform and would rather mischaracterize efforts to get long overdue reforms moving as opposed to prioritizing its own bill that has not been allocated any time for debate since its introduction in September 2011.

IBM has filed its response [PDF] to SCO's motion asking for reconsideration of the Court's order denying SCO's motion to reopen the SCO v. IBM case. I have it as text for you.

IBM tells Judge David Nuffer that it doesn't oppose reopening the case at all -- in fact it says it should happen. IBM has a proposed outline on how to proceed thereafter. Its plan differs from SCO's.

Rather than deciding all the still pending summary judgment motions filed five years ago immediately, IBM suggests a process that goes like this: First, toss out all the claims that the SCO v. Novell final judgment made moot, the ones SCO concedes are foreclosed. That would be almost all of them. I believe all that's left, if it is still viable, which I doubt, is SCO's unfair competition claim regarding Project Monterey and its tortious interference claim alleging that IBM interfered with SCO's market and business relationships. At least that's what SCO listed the first time it tried to reopen this case.

After that, IBM suggests it file a motion for summary judgment regarding its position on the impact of the Novell judgment, and if the court agrees, "it will be unnecessary for the Court to decide a number of the pending summary judgment motions to resolve these claims." If not, the parties will need to come up with a scheduling order, because there will likely be a need for further briefing, in that the pending summary judgment motions were filed years ago, and "the body of relevant case law has grown."

The Novell judgment, IBM further points out -- and this is the part that reveals why IBM doesn't mind a bit if the case is reopened -- did not resolve all of IBM's counterclaims: For example, while the Novell Judgment strengthens IBM's counterclaims concerning SCO's campaign to create fear, uncertainty and doubt about IBM's products and services, it does not completely resolve all of those claims. Thus, the Court will need to address certain of the pending motions, which may also require supplemental briefing and argument. IBM doesn't mention it here, but I recall that there is a counterclaim of copyright infringement related to the GPL. So a scheduling order is going to have to happen in any case. And finally, if SCO elects to pursue other matters it has mentioned before, the Court may need to decide those issues. IBM attaches as Exhibit A its 2011 filing, "IBM's Memorandum Responding to SCO's Request to Reopen", filed in response to an earlier attempt by SCO to reopen the case, and it suggests that the court proceed as described in that filing. That's also where SCO's other matters it may or may not elect to pursue are found, in paragraph 12, essentially some pending motions for reconsiderations of earlier judges' decisions that went against SCO.

Microsoft has released a new version of Skype, its popular VoIP program, for Linux.

In Agence France Presse v. Morel, a copyright case pending in Manhattan, Judge Alison Nathan clarified that there can be no more than a single statutory damages award per infringed work.

Memorandum and order dated May 21, 2013, Hon. Alison J. Nathan, District Judge Ray Beckerman, P.C.

Just received this response from the Ministry. Any typos are likely my own!

Dear Chris Brand:

On behalf of the Honourable Christian Paradis, Minister for Industry, thank you for your e-mail of March 13, 2013, regarding Bill C-56, the Combating Counterfeit Products Act (the Bill).

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I did an interview (MP3) this week with The Pod Delusion, following on from my Sense About Science lecture.

Who says you need a few million bucks to build a supercomputer? Joshua Kiepert put together a Linux-powered Beowulf cluster with Raspberry Pi computers for less than $2,000.

The judge in Apple v. Samsung II asked the parties to narrow their claims, so they did but now Apple would like to add more claims [PDF], specifically to include the Galaxy S4. Samsung just sold 10 million S4s in less than a month, and Apple's hair must be on fire.

Would you like to know what it thinks of all you 10 million users of the new Samsung Galaxy S4 phone? It thinks you are infringing their stupid patents too, meaning, I would imagine, that if it is successful in this case, it will ask for an injunction against the phones you want and bought.

I'll show you what this stupid case is all about and what Apple thinks about you for buying the phone you want to buy and use, which Apple would like to make illegal to buy and use in the US by means of some infuriating software method patents. If you don't see why software shouldn't be patentable subject matter after watching Apple go for Samsung's throat with these patents, I give up.

Not really. My plan is to keep writing until you give up.

Privacy Commissioner of Canada Jennifer Stoddart this morning set out her office's goals for PIPEDA reform. The last attempt to reform the private sector privacy law stalled in the House of Commons with Bill C-12 still technically alive (having been sitting at second reading for months) but destined to die once the government hits the legislative reset button in the summer. The five-year mandatory review of PIPEDA is now years behind schedule, so Stoddart's attempt to kick-start the process is a welcome development.

The PIPEDA report focuses on four areas of reform: stronger enforcement powers, mandatory security breach disclosure, increased transparency on personal information disclosures, and heightened accountability. In particular, the OPC is calling for:

• Reform PIPEDA to provide for stronger enforcement powers. These could include statutory damages (administered by the Federal Court); or giving the Commissioner the power to make orders; or affording the Commissioner with the power to impose administrative monetary penalties; or a combination of the above;
• Require organizations to report breaches of personal information to the Commissioner and to notify affected individuals, where warranted, so that appropriate mitigating measures can be taken in a timely manner;
• Require organizations to publicly report on the number of disclosures they make to law enforcement under paragraph 7(3)(c.1), without knowledge or consent, and without judicial warrant, in order to shed light on the frequency and use of this extraordinary exception; and
• Modify the accountability principle in Schedule 1 to include a requirement for organizations to demonstrate accountability upon request; to incorporate the concept of “enforceable agreements”; and to make certain accountability provisions subject to review by the Federal Court.

The report is a great start, but will require leadership from the Minister of Industry that has to date been absent.

If you want an old-style, hard-working, windows, icons, menus, and pointer desktop, then what you want is Linux Mint 15.

Mint isn't just an outstanding Linux desktop, it's the best new desktop operating system of any kind available now.

Glenn Fleishman had me on his New Disruptors podcast and we had a great conversation! (MP3)

This week I wrote about the need for reform of the Copyright Board of Canada. Copyright collective management is addressed in two chapters of The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, an effort by many of Canada's leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. As I've noted in previous posts, the book is available for purchase and is also available as a free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually.

First, the complexity of copyright collective management is a recurring theme in debates over whether the Copyright Board of Canada, the Copyright Act and industry practice result in multiple payments for use of the same works. Jeremy de Beer describes this as "copyright royalty stacking" in his important chapter that unpacks "the layering of multiple payments for permission - through a certified tariff, collective blanket license or individual contract-to use copyright - protected subject matter."


The chapter notes there is reason for optimism as the decisions, along with recent copyright reforms, may reduce copyright royalty stacking. While this may result in reduced revenues for copyright management organizations in the short term, the longer-term effects may be more positive, with increased certainty, reduced transaction costs, and a growing market. Creators - whether individually or acting through collective management organization - would be the net beneficiaries, with more commercial opportunities and innovation in the distribution of creative works.

With copyright collectives involved as parties in all the copyright pentalogy cases, the implications of those decisions are particularly pronounced for the collectives and the future of copyright collective management. Daniel Gervais sharply criticizes the Court’s decisions, which, he says, "can be seen as a frontal assault on collective management of rights."

Gervais assesses the ESA, Bell and Alberta (Education) decisions, finding each wanting. He maintains that the decisions adopt a binary view of copyright-good vs. bad, control vs. free-when the reality is far more nuanced. Gervais argues that collective management organizations better reflect that nuance and that a system that effectively replaces collective management with fair dealing runs the danger of creating greater uncertainty and lost revenues for creators.

The Guardian

The Canadian Library Association issued a statement late last week on the Access Copyright lawsuit filed against York University, urging it to abandon the lawsuit and pointing to several legal concerns.

The National Post reports that the Competition Bureau of Canada plans to launch an investigation into Google Canada. The scope of the investigation is unknown.

With the latest phase of Canadian copyright reform now complete, the government may soon turn to the question of what comes next. Given last year's major legislative overhaul and the landmark series of copyright decisions from the Supreme Court of Canada, significant substantive changes are unlikely to be on the agenda for the foreseeable future.

Instead, my weekly technology law column (Toronto Star version, homepage version) argues that it is time for the government to set its sights on the Copyright Board of Canada, a relatively obscure regulatory body that sets the fees to be paid for the use of copyright works. The Board is largely unknown in public circles, but it has played a pivotal role in establishing the costs associated with private copying (including a one-time iPod levy), educational copying, and the use of music by Canadian broadcasters.

The litany of complaints about the Board has mounted in recent years: the public rarely participates in its activities due to high costs, it moves painfully slowly by only issuing a handful of decisions each year, and its rules encourage copyright collectives and users to establish extreme positions that make market-driven settlements more difficult.

Moreover, over the past ten months, the Supreme Court has ruled that its approach to fair dealing was unreasonable, the Board itself admitted to palpable error in a decision that resulted in a hugely inflated tariff, and it has ignored the will of Parliament in reshaping Canadian copyright law. The Board may keep a steady stream of lawyers and economists busy, but it is time to acknowledge that it is broken.


Last summer's five Supreme Court copyright decisions were all the result of appeals from Board decisions.  In the most closely watched case - that involving the scope of fair dealing for copying within Canadian education - the majority of court lambasted the Board's approach, using terms such as "flawed", "unreasonable", and "skewed" as well as questioning analysis reached despite an "evidentiary vacuum". The Board responded with a thinly veiled shot at the court.

Months later, the Board released decision involving a tariff for the reproduction of music works in cinematographic works for private use or for theatrical exhibition.  The Canadian Association of Film Distributors and Exporters had proposed a tiered tariff approach of a maximum of 2 cents per copy containing 30 minutes of music or more (less music would result in a lower tariff).

The Board mistakenly established a tariff of three cents per copy, incorrectly treating three tiers as three cents. The result was the prospect of royalties that were as much as 15 times higher than those proposed by the film distributors. The Board was later forced to acknowledge the error, admitting that the mistake resulted in procedural unfairness. 

Perhaps most troubling is the sense that the Board has little regard for the recent legislative and caselaw emphasis on the need for balance. The latest reforms included provisions that removed the need for payment for some copying by radio stations. The copyright collectives warned a House of Commons committee that the bill would "eliminate the revenues authors and publishers now received from broadcasters when reproductions of musical works are made and used for broadcasting purposes."

Soon after the bill took effect, the Canadian Association of Broadcasters filed an application with the Board to rescind the commercial radio tariff. The Board dismissed the application, arguing that the committee comments did not constitute a basis for statutory interpretation. Instead, it called the CAB's application "untenable" and engaged in its own statutory interpretation, suggesting that broadcasters might not be able to rely on the new exceptions.

The decision is par for the course for a board that has seemingly shifted from neutral arbiter to self-appointed copyright collective guardian with little regard for Parliament and the Supreme Court. If the government is looking for the next copyright issue to examine, it might well focus on a board that is largely inaccessible to the public and content to craft its own view of copyright regardless of what the government legislates or the Supreme Court says.

The next phase of the Microsoft v. Motorola litigation in Seattle will begin on August 26th. It will be a jury trial, as Motorola requested. I hope some of you are nearby and can attend. This will be the part about Microsoft's claims of breach of contract based on its assertion that Motorola violated a RAND contract by its opening bid being allegedly too high.

To describe it is to express the ridiculousness of what has been happening in Seattle. Why do I say that? I'll show you.

As I mentioned in my March Locus column, I'm celebrating the tenth anniversary of Down and Out in the Magic Kingdom by m planning a prequel. volume As part of that, planning'I going to read aloud the entire text of that first book into the podcast, making notes on the book as I go. Here's part eight.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3 link