I'd like to welcome our newest blogger Meera Nair. Meera has a PhD from the School of Communication, Dept. of Applied Sciences, Simon Fraser University, Canada, and is interested in "fair dealing" in Canada - what is called "fair use" in the United States. I'm doing her first post for her as she is having trouble typing right now.

Meera sends a brief summary of the state of fair dealing in Canada as seen by the courts there.

Supreme Court of Canada 2002: Thaberge v. Galerie d'Art du Petit Champlain inc. 2002 SCC 34

This case concerned a transformation of legally purchased artwork; infringement was the charge, the majority opinion disagreed. They said:

Parliament formulated restrictive provisions which gave the owner of the copyright a certain control power of the uses. There is no general right to control subsequent uses.The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature.

Supreme Court of Canada 2004: CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13

This case concerned, amongst other things, a library making photocopies of copyrighted materials (at the request of patrons.) In a unanimous decision, Fair Dealing was held to be an integral part of the law. There were quite a few gems in the decision; here are a few of them Fair dealing is always available; Research must be given a large and liberal interpretation in order to ensure that user's rights are not unduly constrained; Research is not limited to non-commercial or private contexts; The availability of a license is not relevant to deciding whether a dealing has been fair.

Supreme Court of Canada 2004: Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45

With an 8-1 decision, the Supreme Court of Canada ruled that ISPs are not liable if copyrighted material passes through their servers. (The dissenting opinion was related to a question of territoriality.):

[The Canadian] Parliament made a policy distinction between those who abuse the Internet to obtain cheap music and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth.

Supreme Court of Canada 2006: Robertson v. Thomson 2006 SCC 43:

A freelance journalistic objected to the inclusion of her work in a CD-ROM of the publishing newspaper, and in two databases. The court grappled with the question: where are the boundaries to copyright in the individual work, and the publisher's compilation? Both the majority and minority opinions expressed the view that copyright is a limited right, AND, that transformation into a new medium did not recast the ambit of that right. Taken together, it is a strong rebuttal to those who continue to insist that digital works have absolute copyright.

Although they are working hard. Stephan points us to a list of libraries available online.

Mario Stargard submits the following observations about whether copyright leads to innovation:

Sure it does. Seems that every time a P2P protocol is shutdown, new ones emerge to circumvent the previous problems.

Napster had the problem of being centrally controlled, and attacked by the RIAA. Gnutella and eDonkey had the problem of being inefficient for large files and they faded into irrelevance but also suffered from some legal setbacks. Kazaa had the problem of still having some central controls that were legally attacked. Bittorrent has the problem of throttling, and now legal problems because pointing to a copyright work is copyright infringement a la Pirate Bay. Kind of makes you wonder if a torrent file is a derivative work.

The throttling issue is being worked on by utorrent, a client that is implementing a udp based bittorrent protocol. udp has the advantage of not having tcp's congestion control mechanism. It is this mechanism that is being exploited by the Deep Packet Inspection throttlers at major ISP's such as Bell Canada. ISP's will, of course, have to innovate a new throttling mechanism to overcome this new development. Throttling is an intellectual property issue because, at least in Canada, the last mile to consumers is controlled by media companies.

Continued works on avoidance schemes and anonymous networks are being fueled by these developments. The Onion Router (TOR) and the freenet project are two great examples. http://www.torproject.org/ http://freenetproject.org/

TOR is currently a mechanism that almost any Bittorrent client can use to obscure your IP address.

What is this leading to? Will the use of encryption or the possession of certain software eventually become a criminal offense? One wonders.

The paper is here. I suppose the message is: "the system works sort of."

Excluding business and financial methods per se from patentability, although perhaps desirable, is not really feasible given the difficult of defining what they are. Even at the EPO, where there is a general exclusion, such patents do exist whenever the invention solves a particular technical problem. The language in the recent Bilski deiciosn in the United States seems to move in that direction, and to exclude those patents with overbroad and vague cliams which are perceived by many to be the main drag on the innovative system.

You can find more of her research on patents here.

This story surfaced several days ago and then disappeared without further comment. The King family's Intellectual Properties Management Inc. extracted $761,160 from the Martin Luther King Jr National Memorial Project Foundation in return for use of King's words and image on a memorial planned for the Washington mall link here and here. In addition it received $71,700 in 2003 as a "management" fee. All that in turn has come from a $10 million Congressional appropriation for the memorial.

Applying copyright to a dead person's image seems strange, but one must assume that the lawyers already know what the established law. However, where is "fair use" in this?

I have just written an editorial - to appear in Expert Review of Pharmacoeconomics and Outcomes Research -- that argues that stronger patents likely will not reverse the productivity slowdown in the pharma R&D enterprise.

http://individual.utoronto.ca/grootendorst/pdf/Editorial_Grootendorst.pdf

The good news is that there are some promising mechanisms that might work. One of these are the research consortia that are doing the basic scientific research needed to design drugs that have a hope of surviving clinical trials. This research enterprise is far too large for any one firm to conduct on its own. These consortia include the International HapMap Project

http://www.hapmap.org/index.html.en

and the Structural Genomics Consortium

http://www.sgc.utoronto.ca/

Both groups involve collaborations of industrial and academic scientists, working at various sites. Funding comes from industry, governments and private foundations. All discoveries are placed in the public domain, with no restrictions placed on their use. I am heartened by how much work that they have accomplished on very modest budgets. (Sometimes its hard to get academics to play nice together!)

Of course the basic research is only the first step in the process of getting a useful drug to market. The next step is to use this basic research to develop and identify drug candidates. I am not familiar with any consortia doing work in this area. Once a candidate has been found, however, David Levine suggests that firms bid for the right to pay for and conduct clinical trials on the candidate. Bids consist of royalty rates that would accrue to the winner from all firms selling the drug, should the drug clear all the clinical trials. The lowest royalty rate wins.

Following up on David's 'Innovation and Copyright' post below, Christopher Breen explains why the RealNtework DVD case is so important, and why judges unfortunately tend to avoid the big issues in copyright cases.

The fools are at it again. Despite the wide availability of tools for copying DVDs to hard drives, the MPAA is suing RealNetworks for selling a copying tool that will only make one copy and doesn't undo the encryption. Details here and a quote:

In October, U.S. District Judge Marilyn Hall Patel temporarily barred sales of RealDVD after the product was on the market for a few days. At the time, the judge said it appeared the software did violate federal law against digital piracy, but ordered detailed court filings and the trial to better understand how RealDVD works.

Notice what is happening: the DMCA allows a single judge to take a product preemptively off the market based on an "appearance" of guilt.

Much of the harm in IP law would no doubt be alleviated if we just got rid of the use of injunctions.

Economic Analysis and Policy, an open access journal from Australia, just published a special issue on the Economics of open access publishing, guest-edited by yours truly. Articles discuss the publishing industry, the experience of editors and the outlook for open access. In particular, they demonstrate that it is a myth that online publishing is an expensive undertaking. Most of the current cost of journals are either tied to the paper they are printed on or to implement gateways to charge for subscriptions. Remove the two, and costs are severely reduced, and readership increases.

For more, view this issue by clicking on the journal link above or go to the list of contents on the RePEc blog.