INNOVATE! HAMILTON

CDN Copyright Law Stronger than US

In his blog, Howard Knopf recently compiled a list of 21 fairly compelling reasons why CDN Copyright law is already stronger than the US copyright law.

This is relevant since the US repeatedly includes Canada on a list of "naughty" countries with allegedly weak copyright laws. For some, the resulting public perception that Canada's copyright law is wholly deficient is infuriating.

THE DOWNLOAD DECADE

The Globe & Mail has started publishing an ambitious series of articles and multi-media publications documenting the growth of music sharing on the internet and the tangled copyright conundrums raised by this activity.

The series is entitled "The Download Decade". Ironically enough, its available for download from the Internet. Check it out. 

Copyright in Baseball Card Designs

LARRY NEUMEISTER of the Associated Press has an article recently published on salon.com about a new copyright lawsuit alleging infringement of the format of baseball cards. Take a look at it.

The interesting aspect of this case is that the alleged copyright infringement reportedly relates only to the certain elements in the layout for the baseball cards, including:

"a colorful, divided two-tone border, the player's photograph superimposed on a thin white border, the player's autograph toward the bottom of the picture and the use of an image of a baseball on a bottom corner of the card".

Unfortunately, it is not uncommon for businesses to copy design elements from their competitors' advertisements, forms, labels, etc. as a shorthand to getting their products to market. Given the sometimes simple or even obvious nature of these designs, copyright is rarely considered. However, there is no litigant more motivated than a business competitor and the consequences (ie. legal costs and lost profits) are rarely worth the savings on the cost of developing original materials.

US Releases Some Details on ACTA Negotiations

As some may recall from earlier posts, the US, Canada and several other countries have been negotiating an international agreement concerning intellectual property for several years under a cloud of secrecy.

Apparently, the US has taken the position in the past that the agreement related to issues of national security since the subject matter included controlling the piracy at international borders. As a consequence, public disclosure of the details was discouraged.

In any event, the US has now put out a six page summary outlining the purpose of the negotiations, but providing few other details. In particular, there is no information as to the status of the negotiations or copies of any draft text.

Copyright & Excerpting

Ironically, this is a topic of special interest to bloggers.

Some may recall that the Associated Press (AP) sent a few ill-considered letters last year to some bloggers to complain about excerpts of their articles published online without permission. In this regard, AP also proposed a fee schedule for excerpts of as little as 5 words. There was a HUGE online backlash amongst bloggers - some complained that AP's behaviour threatened their rights to "fair use" and "free speech" , some threatened to send invoices to AP for quoting their own articles and some determined to "boycott" AP by refusing to cite AP as a source or to link to AP articles on their blogs. [Note that not all of these complaints would apply in Canada as we have different standards for "fair dealing" and "freedom of expression"].

Although AP apparently never withdrew the initial "demand letter" that started all the fuss, it did subsequently announce that it was reconsidering its position with respect to blogs and it is my understanding that the proposed fee schedule was therefore withdrawn. Nevertheless, their position appears to be that it is more appropriate for blogs to use short summaries of articles written by others instead of direct quotations, even short ones, and then provide a hyperlink so that readers can view the original article in context.

It appears that AP has now refined its approach. It has reportedly launched a lawsuit in New York State against a so-called on-line news aggregator, All Headline News (AHN), alleging that AHN had improperly copied its articles and/or simply rewritten its articles for publication via its online news service. In doing so, AP is relying on copyright and an obscure US legal doctrine known as "hot news misappropriation". This legal doctrine apparently recognizes a "quasi-property" right in time-sensitive facts reported by one publisher where they are gathered at a cost to the publisher and "copied" by a competitor. There is some interesting commentary by other bloggers on this case here and here.

At the end of the day, the real issue is whether and how "real" news gatherers like AP can continue to pay journalists to gather such news for publication and make a profit if a competitor can simply "rewrite" it at minimal cost. Frankly, I suspect that AP would like to sell its headlines and articles to news aggregation services, but it can't sell what seems to be free.

The New York Times had an interesting article on March 2, 2009 about the issues and options facing the newspaper industry in this regard. [I understand that The New York Times is a member of AP].

Update: April 13, 2009

The New York Times has published a further article on this issue and the concerns of the Associated Press about news aggregators on the Internet. 

Update: July 20, 2009

AP and AHN have reportedly settled this dispute out of court for an undisclosed sum and consent to an injunction against copying/summarizing AP articles in future.

Google Library Project - Implications for Canadians

As some may already be aware, Google has undertaken to scan all the books ever published and make them available online. So far, it has apparently scanned over 7 million books, including 6 million books that are still protected by copyright under US law. Of course, this attracted a couple of class action lawsuits which have apparently been settled, subject to court approval in June.

A FABULOUS article published in the Globe & Mail on February 20, 2009 provides a summary of the implications for Canadian authors. If you're such an author or an avid reader of books (like me), its a highly recommended read.

Deadline for authors to opt out of the Google settlement has reportedly been extended to September 2009 and the hearing for court approval of the settlement has been rescheduled to October 2009.

Counterfeiters in our own backyard!

In late January, the Hamilton Niagara Regional Detachment of the Royal Canadian Mounted Police announced that it had arrested four individuals on allegations relating to the illegal distribution of counterfeit DVD's at Hamilton area flea markets.

US & China Copyright Dispute at WTO

On January 26, 2009, the WTO released its decision in a copyright dispute between China and the United States (with supported from Canada) in which the US complained that China was not fulfilling its treaty obligations as a signatory to the Berne Convention for the enforcement of copyright. In summary, it appears that although the US claimed victory, it was only successful on two significant points:

1. copyright protection cannot be denied in China to works that have not been pre-approved by censors; and

2. officials cannot auction seized counterfeit goods with only the fake brand name removed.

The US lost in its bid to force China to lower its threshold for criminal prosecution of copyright infringement on a "commercial scale" (ie. counterfeit goods).

The New York Times commented on the WTO decision in an article on January 27, 2009 and Michael Geist's blog entry can be found here.

Another Parody Case

According to the Globe & Mail, CanWest is suing some political activists in the BC courts for copyright and trademark infringement over a four-page paper published in 2007 which bore the banner headline "Seriously Zionist since 2001," a reference to the Vancouver Sun's motto of "Seriously Westcoast since 1912."

The defendants have apparently argued that this is a freedom of expression fight dressed up as copyright and trademark infringement. It will be interesting to see if the defendants have the legal resources to vigorously pursue the argument all the way to trial and then to see how the court reacts. So far, the precedents are against them...

Recording Industry Focuses on Internet Service Providers

It appears that the North American recording industry is taking a page out of the copyright enforcement book of their European counterparts. See recent CBC report.

The Recording Industry Association of America (RIAA) announced that it is going to shift away from suing file sharers and work toward working out deals with internet service providers (ISP's) that could see habitual downloaders have their internet access restricted or cut off completely. This is a controversial tactic that Europe has been considering for several years now.

In Canada, however, the prospect of working out deals with ISP's is unlikely as long as our copyright law remains muddy because of the levy on CD's and other recording media that many argue authorizes the downloading (if not uploading) of music via the Internet.