A claim arguing both copyright infringement and moral rights infringement looked for $27 million in damages. (Plus, amongst other things, the goods and services tax on the monetary awards.) By the end, the Honourable Mr. Justice Russell of the Federal Court of Canada determined that the defendants' copyright misdemeanor was confined to posting the plaintiff's work on their website, without his consent. Justice Russell did not conceal his opinion of the plaintiff's conduct; "The evidence adduced concerning infringement of copyright suggests that the Plaintiff's claims are disproportionate and opportunistic."

It reads like a work of fiction; a long-time business association that went sour, third parties caught in the crossfire, and a proposed corrective that involved transacting funds in a Caribbean country of the plaintiff's choice. The effort to secure significant statutory damages earned some choice words from Justice Russell, "There is no evidence of any market for the Report and the conduct of the Defendants during the proceedings has been consistent with parties simply trying to resist the Plaintiff's inflated demands for $27,000,000.00."

The $500 awarded to the plaintiff is the minimum permitted for statutory damages by Canadian law. The claims for punitive and aggravated damages were unsuccessful.

It's official. The Federal Government of Canada unveiled Bill C-32 this afternoon; it places emphasis upon the sanctity of technological protection measures (TPMs). Michael Geist gives the Reader's Digest version. He points to some good news, including: ISPs retain the notice-and-notice system (that they have informally been working under for years); fair dealing has broadened modestly (parodic and some educational uses would be included); and some other consumer-friendly provisions are proposed (I think it will finally be lawful to video-tape a television program and watch it later.) However, if circumventing a TPM is involved, all bets are off.

For those of you who have been counting, this is the third effort, in the past five years, by Canada to amend the Copyright Act. The previous two each died on their order papers - victims of Parliamentary instability. That is unlikely to happen this time. It appears the government will endeavor to fast-track the bill into law.

The Statute of Anne makes for interesting reading.

For instance, if books were perceived as overpriced, any individual could make a complaint to the authorities (among them the Lord Archbishop of Canterbury, the Lord Chief Justice of the Common Court, the Vice-Chancellors of the Universities of Oxford and Cambridge). Booksellers and printers could be summoned to justify the "reason of dearness." If the price was found to be excessive, the authorities could, "limit and settle the price for every such printed book."

And for each book printed, "nine copies upon the best paper," were to be reserved for "the Royal Library, the Libraries of the Universities of Oxford and Cambridge, the Libraries of the Four Universities in Scotland, the Library of Sion College in London, and the Library commonly called the Library belonging to the Faculty of Advocates at Edinburgh." If delivery of books did not take place within ten days after receiving a demand from a library, the offender was fined five pounds (per book).

What would five pounds in 1710 be equivalent to today?

Canada has permanent-residency on the 301 Watch Lists prepared by the Office of the United States Trade Representatives. A disgrace earned by the state of our domestic copyright law. As Michael Geist revealed this week, the EU has an equally dismal view of Canada. Ongoing efforts to negotiate a trade agreement between Canada and the EU came with a scolding. Here are some of our sins:

1) We provide a copyright term of life plus fifty years, instead of life plus seventy.

2) We insist that ISPs are not liable for the conduct of their users.

3) Our law is antiquated (last major revision was in 1997, as compared to the DMCA of 1998).

4) We have not acceded to WIPO Internet Treaties (which obscures the mundane detail that Canada is compliant with international obligations.)

5) Our current law is precise on one disturbing point: copyright is a set of limited rights. So said our Supreme Court (four times).

6) Instead of listening to our trading partners (current and potential) with respect to changing Canadian law, our Federal Government chose to engage with Canadians. In summer 2009 Ministers James Moore (Heritage) and Tony Clement (Industry) embarked upon a national consultation. 8,000 letters later we are still waiting to see what shape the next law will take, but in the meantime Canadian media industries are holding their own.

PricewaterhouseCoopers recently published their 2009-2013 projections of global media and entertainment industries. In their comparison of consumer spending on media and entertainment in North America, PWC writes:

Canada will be the fastest-growing country, with projected 2.2 percent compound annual increase compared with 1.2 percent compound annual growth for the United States.

Notably, in the category of recorded music (the realm of active copyright lobbyists) both countries show a declining compounded annual growth rate. But Canada's decline is projected to -1% whereas its American counterpart shows -4.7%. Similar comparisons to U.K (-3.9%), France (-7.4%), and Germany (-1.9%) all place the Canadian music scene as more stable. This, despite the state of our copyright law.

As was noted here in August, Canadians were offered a chance to express their wishes for the next version of the Copyright Act of Canada. The volume of submissions (estimated to be over 8,000) may have caught the Federal Government off guard; the consultation period is now closed, but many submissions have not yet been posted.

My favorite might well be the remarks of David Allsebrook, submitted August 10, who observed that the protection of copyright should require adherence to the prevailing legal limitations of copyright - those who deny the public legitimate access to copyrighted materials through "restrictive license terms, technical protection means, or abuse through collective administration," should have the their entire protection revoked!

I am less enthusiastic about the request from the Association of Universities and Colleges of Canada, for a special exception so that students and faculty may utilize publicly available works from the Internet (as discussed in the Gatineau roundtable of July 29). To give the Association the benefit of the doubt, I must say that Canadian education operates under tightly constrained and cumbersome educational exceptions to copyright. That said, it's a little hard to overlook the fact that this request is being made in the name of works that are "publicly available." The Association is conceding infringement where none has happened, which raises concerns of liability to all those who will not be sheltered within an educational institution.

Moreover, once published, all material is available for the good-faith productive uses that are specified under fair dealing (private study, research, criticism, review, and news reporting) provided that the conditions of fair dealing are met (citation, appropriateness of use, etc.) Unlike fair use, fair dealing is this closed set of activities. However, in 2004, a unanimous Canadian Supreme Court described fair dealing as an integral part of copyright law, stated that it should be interpreted liberally, and offered considerable guidance regarding how to use fair dealing.

One advocate of the Association's proposal informed me that other jurisdictions are considering similar schemes. But, there was no mention of which jurisdictions. If anyone has information to share, please do.

More information on the Association's proposal can be found in my submission.

Belated congratulations to Gunther Eysenbach of the University of Toronto. Ten years ago he started the Journal of Medical Internet Research (JMIR); last month it became the leading peer-reviewed journal in the area of e-health. JMIR has displaced a longstanding incumbent, the Journal of the American Medical Informatics Association (JAMIA).

JAMIA is of Elsevier ancestry; JMIR is a small-budget, open access publication created via Open Journal Systems (OJS). For complete details see Eysenbach's blog, and for more about OJS, see the Public Knowledge Project.

Following the opening remarks by the Right Honourable Gordon Brown, MP Prime Minister, the report declares its ambition, "To secure the UK's position as one of the world's leading digital knowledge economies (p.7)."

The scale of the report is vast; it is about much more than intellectual property rights. That said, on the subject of IP, there is one sentence which is quaintly insightful. "A recent study in Scandinavia has shown that the biggest users of unlawful peer-to-peer material are also the biggest paid-for consumers of music (p.110)."

But, the correlation is unexplored. The next sentence is, "Where there are easy, affordable and lawful routes consumers will take them."

The Conference Board of Canada has released a series of reports concerning Canada's state of intellectual property protection. According to this theoretically non-partisan group, "Canada's failure to strengthen intellectual property rights in the face of digital technology has given it an unwelcome reputation as the file-swapping capital of the world."

Michael Geist posted an assessment of the reports, drawing attention to the questionable methodology employed. The conclusions were drawn through a selective reading of data, with some data prepared by copyright industry associations. One of the reports, National Innovation Performance and Intellectual Property Rights, states that Canada ranks 19th worldwide. As Prof. Geist writes, "...the report fails to mention that Canada was actually tied with four other countries ranked 15th to 19th including the United States, which in the same paragraph is heralded as a leader in innovation whereas Canada is described a laggard."

Prof. Geist takes no prisoners and ably shows that the Digital Economy report borrowed heavily from the work of the International Intellectual Property Alliance without paying much attention to the courtesy of proper citation. In their rebuttal the Conference Board attempts to distance themselves from the charge of plagiarism. Moreover, they state "This report was produced as contract research. The Conference Board does not disclose the terms of its contracts without permission of the client." An ironic remark, given that Ontario taxpayers provided part of the funding for this venture.

My comments to the debate...

Professors Fischer and Hughes each identify the rationale for the system of copyright as its capacity to encourage creative effort, as well as promote respect for creative people. Both are laudable goals, but a dispassionate analysis should note the oddity of the situation we find ourselves in - copyright laws focus more upon the distribution of creative works, and less upon the creation of those works.

Guest speaker John Kennedy made perhaps the most trenchant observation, "Copyright influences behaviour." This has manifested in two equally undesirable ways. The speakers and various individuals have spoken of the challenges caused by those who engage in unauthorized distribution of copyrighted content. At the other end of the spectrum is the self-censoring of creative effort that occurs when individuals believe that copyright is a grant of absolute property.

Copyright is not, and has never been, a measure of complete control. Since its emergence into Western law, it has remained a limited right; limited not only in time, but also in its reach. Eighteenth century English courts recognized fair dealing (rooted in the doctrine of fair abridgement); likewise, early American courts recognized the practice of fair use to varying degrees. While there are differences between the two exceptions, each allows for the unauthorized reproduction of copyrighted material for certain uses (i.e. private study, research, criticism, review and news reporting). Conditions apply to any exercise of fair dealing or fair use; neither exception is an invitation to copy without restriction.

Fair use has made a brief appearance in this debate. Professor Fischer describes the doctrine as helpful, but ambiguous and unpredictable. Professor Hughes states, "... to historians, novelists, archivists and documentary filmmakers... the fair use doctrine provides substantial protection against infringement claims." Fair use and fair dealing apply to all individuals engaged in creative effort. Yet, individuals who exercise these rights risk a charge of infringement, a litigation few people can afford. However, financial expense is not the worst of the difficulty; the real problem is that many people do not understand the limits of copyright and shape their behaviour accordingly. They are unaware that, in lay-man's terms, a good-faith productive use of copyrighted material is very likely to be legitimate. Granted, my position is shaped by a very progressive Canadian Supreme Court.

Guest speaker Ms. Dale Cendali writes, "Yet despite the overwhelming evidence of the success of the current incentive system, there have been calls to revise dramatically copyright law, including drastically shortening the current copyright term and greatly expanding fair use." From this, it appears that she finds expanding fair use a threat to the success of copyright, a threat to the promotion of creativity. If we believe that copyright is all about creativity, both encouraging it and respecting creators, then it would be prudent to pay more attention to the only measure within the law that directly addresses creativity.

Read the whole debate here

This past week the Office of the United States Trade Representative released its annual 301 report, and once again named Canada for failing to develop more stringent intellectual property laws. This time, however, Canada has been placed on the Priority Watch 301 list along with China, Russia, Algeria, Argentina, Chile, India, Indonesia, Israel, Pakistan, Thailand, and Venezuela.

Eric H. Smith of the International Intellectual Property Alliance (IIPA) seems particularly pleased that Canada has been elevated in its disgrace. According to Smith, "Canada remains woefully behind the rest of the developed world (and many countries in the developing world as well) in adopting critical legislation that will facilitate the development of a healthy online marketplace for copyright materials."

The USTR Report states, "The United States continues to have serious concerns with Canada's failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties."

At the heart of this grievance lies Canada's unwillingness to adopt the measures implemented by the United States in 1998, namely the Digital Millennium Copyright Act (DMCA). That the DMCA exceeds the requirements of the WIPO treaties is left unsaid, along with the inconvenient detail that Canadian law continues to meet its international obligations.

As is always the case, there are many Canadians quite competent to dispute the allegations of the USTR: for example, Howard Knopf and Michael Geist. Yet my favourite rebuttal came two years ago, from Bruce Lehman, chief architect of the DMCA. Speaking at a conference at McGill University in March 2007, he said, "Canada has the benefit of the soon-to-be decade of experience of the U.S. ... in some areas our policies have not worked out too well... Attempts at copyright control have not been successful; at least with regards to music."

Lehman placed the development of the DMCA as, in part, a consequence of President Bill Clinton's campaign promise to capture the economic benefits of the Information Superhighway. The phenomenon that is the Internet has changed considerably over the last decade, and business models previously unimagined have taken root. Current Canadian policy makers would be showing a lack of judgement if they mindlessly patterned Canadian law on the DMCA.