2012 was surprisingly good for Canada. The decade long revision of the Copyright Act was completed; most parties agree that it was a good compromise. Amendments included: expanding fair dealing to include parody, satire, and education; protecting consumer behavior that reflects the conduct of consumers in a digital age; maintaining the independence of ISPs and the privacy of subscribers; implementing a cap on damages for non-commercial infringement ($5,000 is the maximum but a judge can award as little as $100; this is intended to discourage file-sharing lawsuits); and, creating an exception for non-commercial user-generated content. To be sure, all the exceptions come with the expected provisos, and all are subject to the overarching ban on any circumvention of technological protection measures. It still strains credulity as to why Canada in 2012 adopted a prohibition first conceived in 1996; but, given the fierce opposition by rights-holders, the fact that the user allowances were not rolled back in committee speaks well. Michael Geist gives a good synopsis of the new Act here.

And then came the Day of Five. In December 2011, the Supreme Court of Canada heard five copyright cases; all five decisions were released on July 12, 2012. The combination carries a strong message from the Court: copyright is a limited right and those limits must be robust if copyright is to serve its presumptive purpose of enhancing creativity. Of particular note is this Court's continued support of fair dealing. In one case, a performing rights collective society sought compensation for the use of music previews (30-90 seconds long) as they are used in cultivating sales of complete music files. The Court denied that request, stipulating that the use of previews is consumer research. Moreover, the Court took the opportunity to probe into the nature of research, to the advantage of all Canadians:

Limiting research to creative purposes would also run counter to the ordinary meaning of "research", which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest (SOCAN v. Bell Canada, para. 22).

In a second case, an educational licensing collective objected to the practice of teachers taking copies of small excerpts of works to be used in conjunction with paid-for textbooks. To the claim that such copying was detrimental to markets, the Court responded with:

[T]here was no evidence that this decline was linked to photocopying done by teachers. Moreover, it noted that there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (Access v. Education, para 33).

The Supreme Court of Canada began the quest for better balance in the system of copyright in 2002; a brief summary of pertinent decisions is available here. Through the five recent cases, the Court continued its commitment to technological neutrality, emphasized that advancements in technology do not immediately confer added control to copyright holders, and, made it plain that when considering fair dealing, focus must go to the end-user (not any intermediary involved in the reproduction or distribution of a work.)

An immediate effect of both the new Act and the Court's guidance is a shift in policy by educational institutions. These institutions were a captive market for educational licensing collectives, with instances of fair dealing effectively wrapped into blanket fees. Michael Geist writes that such monopoly is being rethought. Canadian institutions have paid, and will continue to pay, fees where copyright requires it; but fair dealing is now seen as an active practice instead of an exception that only exists on paper.

With a more flexible Copyright Act and a Supreme Court that champions balance between copyright holders and copyright users, Canada looks good going into 2013.

There is a lot of talk in academic circles about open publishing models - but mostly for journals. However efforts are underway for books as well: Openbook publishers has been taking the lead in this - they are the publishers of my recent book Is Behavioral Economic Doomed. They publish under a creative commons license that allows free reproduction and modification - yet we still think we can cover the costs and even make a buck or two.

There is a nice article about them here.

Stephen Greenblatt writes in The Swerve; How the World Became Modern, "Authors made nothing from the sale of their books; their profits derived from the wealthy patron to whom the work was dedicated. (The arrangement … seems odd to us but it had an impressive stability, remaining in place until the invention of copyright in the eighteenth century.) Publishers had to contend, as we have seen, with the widespread copying [by hand] of books among friends, but the business of producing and marketing books must have been a profitable one; there were bookshops not only in Rome but also in Brindisi, Carthage… and other cities [in the Roman empire]."

This suggests to me that books and other writings today would be produced without copyright, which is after all a government granted monopoly and an enormous tax on the public. Think about it.

How bad could copyright on music get? If all the wealth on Earth is owed to copyright holders? That is not enough. What if all the wealth in the Universe is owed to music copyright holders on Earth?

This seems to be the premise of a Awork of fiction, where aliens get hold of our radio waves and promptly get hooked on our music, until they notice they owe a bazillion to the RIAA. Is it fiction or futuristic, though? As the recently deceased Rad Bradbury said, he is not predicting the future, he is trying to prevent it.

HT: io9.

Not possible without copyright, right?

The courts continue to get to make copyright and patent law. The latest involves Oracle which is suing Google over Oracle's Application Programming Interface (API) as well as other lesser elements.

The heart of the difference is whether the Java API can be copyrighted or not. Google has been using it in the belief that it was not protected, particularly for Android, Google's operating system for cell phones and tablets. Oracle which acquired the software from Sun Microsystems two years ago, has much to gain if it wins rumored to be as much as a billion dollars.

Oracle's case is that its API is copyrighted along with the underlying software code. Google argues that it can't be copyrighted because the elements of an API are like words, in free and common use.

If it loses, Google would have to eliminate the API or pay Oracle's price (or find a substitute to run the small free apps that are already widely used in Android gadgets).

The case took an odd turn last week, when the judge instructed the jury hearing the suit to assume that the copyright does cover the API but that he would issue his final ruling later in the proceedings. I suspect the jurors will take this to mean the judge has already intervened and made their efforts irrelevant. But that possibility will provide Google a basis to appeal.

Then on Friday, the judge sent aspects of the case to the jury link here. The best current status of the suit is described there in detail. For all the twists and turns, go to Groklaw link here for a daily account in extenso of the arguments.

Then today, a European court ruled in another case that an API is not copyrightable link here. Good for it, blocking the steady expansion of the reach of copyright.

Steve Pearlstein writes in the Washington Post about competition in the book selling business link here. He boils the policy issue down to picking your monopolist, Apple or Amazon. That doesn't really frame the choices consumers face.

His frame is either control of the ebook market by Amazon which priced them at $9.99 or by Apple, which raised prices by 30-40 percent through setting a wholesale price and letting retailers set the retail price, incidentally restoring the market in printed books to profitability.

The issue is moot for the moment, since the government has weighed in on the side of low prices but various interests have now gone to court.

Pearlstein leaves out the whole issue of copyright, in the absence of which none of this could have occurred. It is the original monopoly, on the basis of which any other associated monopolies rest. While it is unlikely that Congress will change copyright any time soon, it is important for consumers to know that competitive pricing of books depends on substantially reducing the term of copyright to somewhere between 10 and 20 years.