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in defense of fair dealing

Fair Duty by Meera Nair - Mon, 2016/01/18 - 09:18

A response to Heather Menzies and the Globe and Mail.

Last Thursday, the Globe and Mail published an op/ed penned by author Heather Menzies, chair of The Writers’ Union of Canada. Ms. Menzies claims that a provision of law, fair dealing, is responsible for a decline in the income and well-being of Canadian authors. While she is perfectly entitled to her opinion, her argument is based on a number of inaccuracies.

At the outset, it must be noted that the system of copyright, since its inception as statutory law in 1710, was never intended to operate as a grant of absolute control. Rights offered in the name of copyright were limited, for the vital reason that the goals of the system of copyright (creativity and innovation) rely on some degree of unauthorized uses of prior works. The mantra that more control brings about more creativity is no more than political theatre; the age of Shakespeare, the industrial revolution, and even the 20th century offer enough evidence that creativity has thrived in periods of lesser control. Nevertheless, fair dealing enthusiasts will agree that it is as important to respect the rights afforded to authors, as to respect the use provided to future authors via fair dealing.

Ms. Menzies writes: “Authors have always made copyright legislation work for them, even though it originated in a 16th-century move to restrict the right to copy texts to the Stationers’ Company, a booksellers’ cartel based in London, England, and had nothing to do with writers.” It is true that copyright’s entrance into law was at the behest of booksellers eager to protect their assets, not necessarily their authors. Yet some authors obliged with the trope of the starving author during negotiations. In the three hundred years since, with the same trope, the rights of control in the system of copyright were systematically expanded, while the rights of unauthorized use were inexorably whittled away. Given that, at the present time, copyright is more expansive in breadth and depth than it has ever been, if authors are still starving, perhaps copyright is neither the problem, nor the solution.

As to the role of collective licensing in the management of educational uses of copyrighted material throughout Canada, it is true that Access Copyright facilitated this effort in the past. As to why post-secondary institutions no longer wish to rely on Access Copyright’s services, Ms. Menzies omits to indicate that in 2010 Access Copyright sought a 1300% increase in fees, demanded absurdly intrusive reporting requirements from institutions, and took it upon itself to redefine the very nature of copyright. (A privilege that Parliament, and no other, enjoys.) Yet post-secondary institutions continue to spend millions of dollars in purchasing and licensing fees, and make these payments directly to copyright owners. As to where those funds go after that point, it is not for an institution to say.

Furthermore, even though “education” was added to the allowable purposes of fair dealing through the amendments which came into force in 2012, three Supreme Court decisions upholding fair dealing in teaching and learning, and research, were all based upon the earlier language of fair dealing. That detail is also omitted in Ms. Menzies’ account. Instead, she opts to equate the decline of authors’ incomes with the later expansion of fair dealing and invokes a PricewaterhouseCoopers study to present dire consequences for education in Canada in the years ahead.

That study, commissioned by Access Copyright, was based upon very narrow parameters. (I provide analysis in “With due respect to PricewaterhouseCoopers.”) The study focuses upon revenue streams within the educational publishing industry and finds that revenue has declined over recent years. This observation is correlated to heightened attention paid to fair dealing by educational institutions, arriving at the seeming causality that fair dealing is to blame. Whereas in reality, there are more options for obtaining quality content at lesser or no cost. Teachers may avail themselves of publicly available material from the internet, open-access content, and material expressly developed by other teachers and local communities. As with any market, when more options are available, former monopolies must see their market-share decline. And lurking in the background of recent trends was nothing less than the global economic mayhem that began in 2008, which ensured that, across all walks of life, individuals and institutions had less money to spend. Yet the study’s authors appear unaware, or unconcerned, about larger macroeconomic conditions.

Finally, Ms. Menzies invokes the realm of First Nations’ writings and the importance of protecting their writers. No argument there. Our pantheon of writers is worthy of praise and we all benefit when that roster swells. Yet Ms. Menzies will not acknowledge that of the writers we laud today, many enjoyed their public education before the mania to count the number of words a teacher or librarian might share with their charges became the educational norm. Those writers enjoyed a more open reading environment in their classrooms; times being what they were, it was not necessary to speak of “fair dealing.” But it was fair dealing.

It would be only fair to suggest that such openness contributed to the success of members of The Writers’ Union of Canada. That they should now begrudge future generations of writers that same benefit, is truly disappointing.

The Trouble with the TPP, Day 10: Criminalization of Trade Secret Law

Michael Geist Law RSS Feed - Fri, 2016/01/15 - 10:10

The Trouble with the TPP series continues with a surprising and troubling aspect of the intellectual property chapter: the criminalization of trade secret law (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection). The trade secret issue was flagged by Professor Dan Breznitz of the Munk School of Global Affairs in a column in the Globe and Mail late last year.  While some have tried to downplay the issue, the reality is that the TPP represents a radical shift on trade secrets law for most participating countries, who can expect years of pressure to gradually expand the scope of criminal penalties for trade secret violations.

Trade secrets represent an ill-fitting part of intellectual property law. While rules for patents and copyright seek to strike a balance between rights and access (patents requiring disclosure of the invention and copyright balancing creator and user rights), trade secrets do not involve any disclosure. In fact, trade secrets must remain secret to constitute a trade secret. Most TPP countries provide civil remedies for unauthorized trade secret disclosures, so that if a company believes that there has been a violation, they must initiate a case before the courts to seek damages. The TPP dramatically changes trade secret law by also requiring criminal penalties, raising the spectre of government prosecutions for violations. Article 18.78 includes requirements for criminal penalties and procedures for trade secret violations.

The inclusion of criminal penalties for trade secret violations comes directly from lobbying by the U.S. Chamber of Commerce, which made the issue a top priority. Agreement was presumably reached by creating some flexibility for TPP countries. The provision contains a mandate to include penalties for at least one of three forms of trade secret breach involving at least one of five different types of harm (commercial advantage or gain, intent to injure an owner, etc.). The flexibility has led some to argue that countries like Canada are already compliant with the bare minimum in the provision given the existence of an economic espionage provision in the Security of Information Act (Canada).

Yet meeting the bare minimum is unlikely to last for long. The U.S. Chamber of Commerce identifies both Canada and Australia as examples of countries that it believes have weak remedies, procedural obstacles and an insufficient deterrent under existing law. The examples it provides (in Canada’s case, focused on 2004 allegations that WestJet stole confidential data from an internal Air Canada website) would not be covered by the SIA’s economic espionage provision. Rather, the examples are focused on conventional, domestic commercial issues that could be (and have been) dealt with through civil law means, yet the U.S. wants the issue escalated to a criminal matter.

In addition to the concerns about criminalization, Professor Jeremy deBeer notes that the expansion into trade secrets raises potential constitutional concerns. In a study on CETA issues, deBeer argued that “ordinarily, there would be little doubt that trade secrets and confidential information are matters within provincial jurisdiction over ‘Property and Civil Rights’.”  While the federal government has given itself the power to regulate these issues, there remains the prospect of a constitutional challenge.

The post The Trouble with the TPP, Day 10: Criminalization of Trade Secret Law appeared first on Michael Geist.

The Web Privacy Problem is a Transparency Problem: Introducing the OpenWPM measurement tool

Freedom to Tinker - Thu, 2016/01/14 - 19:30
In a previous blog post I explored the success of our study, The Web Never Forgets, in having a positive impact on web privacy. To ensure a lasting impact, we’ve been doing monthly, automated 1-million-site measurement of tracking and privacy. Soon we’ll be releasing these datasets and our findings. But in this post I’d like […]

The Trouble with the TPP, Day 9: Limits on Medical Devices and Pharma Data Collection

Michael Geist Law RSS Feed - Thu, 2016/01/14 - 10:15

The link between health care and the TPP’s intellectual property chapter is easy to spot, but there are other chapters with implications for the issue. The Trouble with the TPP series today considers Chapter 8, which covers Technical Barriers to Trade (TBT). The chapter contains some surprising restrictions on the ability for national regulators to require the disclosure of certain information as part of the regulatory review process for pharmaceutical products and medical devices (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection).

The Canadian government summary of the TBT chapter does not disclose that there are data collection restrictions. In fact, the only reference to the issue states that the chapter “improves regulatory transparency in the areas of cosmetics, medical devices, and pharmaceutical products.” Yet the chapter does far more than address regulatory transparency. For example, Annex 8-C 7bis requires each party to makes its determination on whether to grant marketing authorization for a specific pharmaceutical product on the basis on factors such as clinical data, manufacturing quality, and labelling information. However, it also states that:

no Party shall require sale or related financial data concerning the marketing of the product as part of such a determination. Further, each Party shall endeavour not to require pricing data as part of the determination

Annex 8-E for the approval of marketing of medical devices is similar:

no Party shall require sale, pricing, or related financial data concerning the marketing of the product as part of such a determination

As KEI notes in its presentation to the U.S. International Trade Commission:

It is certainly desirable to require drug and device makers to provide information about product prices, revenues, and a variety of related financial data, including the outlays on R&D and marketing of products. These are the very topics that the State of California and other state governments are seeking to obtain from drug companies, but it is much easier to mandate such disclosures at the federal level.

Much of the pricing and sales data for drugs is now controlled by IMS, the company that holds a near global monopoly on the most detailed information on sales revenue and pricing of drugs. Other “related financial data concerning the marketing of the product” might include data on R&D outlays, a topic shredded in unhelpful secrecy and subject to too much controversy, when the facts exist and could be shared. From the text, it is not that clear how far the ban on requiring financial data extends, and to which activities of a regulatory agency or another government body would be constrained by these provisions.

It is not clear why the Canadian government has agreement to these limitations nor why the summary documents do not reference them. This information could assist regulators in making better decisions on medical devices and pharmaceutical products, yet the TPP will inexplicably block them from doing so.

The post The Trouble with the TPP, Day 9: Limits on Medical Devices and Pharma Data Collection appeared first on Michael Geist.

Do privacy studies help? A Retrospective look at Canvas Fingerprinting

Freedom to Tinker - Tue, 2016/01/12 - 13:04
It seems like every month we hear of some new online privacy violation in the news, on topics such as fingerprinting or web tracking. Many of these news stories highlight academic research. What we don’t see is whether these studies and the subsequent news stories have any impact on privacy. Our 2014 canvas fingerprinting measurement […]
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