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.

There's been much talk lately of the imminent death of copyright, due in part to the increasing digitization of information and media, the Internet, large bandwidth, and encryption. Nora Ephron, for example, recently observed, "We're in the last days of copyright, if you want to be grim about it...." And see The Death of Copyright, Item #241, Encryption, Strong Privacy, and the Death of Copyright, The Death of Copyright, and many other such comments.

Imagine a world 150, 200, 500 years from now--when virtually every work of art, every novel, ever movie, song, and recording ever produced until today--and many years after--is public domain. Now imagine you want to play muzak in your elevators, or nice background music in your dental office, or car repair waiting room, or restaurant. Or imagine you want to publish a book (or website) of great paintings. If you want to do these things today, most of the works you'd be intersted in are still covered by copyright. Sure, there are older recordings on scratchy 78 rpm LPs, and musty tomes from the time of the Civil War or earlier--but modern stuff, in color, stereo, hi-fi, with modern acting and special effects--most is still subject to copyright. So to play muzak in your elevator or pipe in nice background music to the ceiling speakers of your waiting room, you have to pay annoying royalties each month.

But even now we are starting to see, with the advent of Google Books, The Internet Archive, and Gutenberg, and so on, increasingly modern books entering the public domain. Imagine 400 years from now, and every movie, song, painting, novel published from the dawn of time, every movie made in the 20th and 21st and 22nd centuries, plus hundreds of thousands or even millions of songs, photographs, paintings, ... and the last 100 years or so is still locked up. Now let's say you want to put up a website the 10,000 great paintings; or stream a music or movie station playing great songs and films--will you pay out the nose for the rights to publish the recent stuff? Well, maybe, but if you have an almost unending cornucopia of great, free stuff to choose from--methinks this might exert a strong downward pressure on the ability of copyright holders to extort much money from you. (And this is disregarding practical problems they face, such as some kid downloading all the world's media into his petabyte thumb drive in 17 seconds via a totally secure encrypted link.)

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

The Economist is organizing an online debate about Copyright and wrongs. It starts today with opening statements and will continue for about a week. "Comments from the floor" are allowed, too, so there is opportunity to participate.

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.

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.

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?

Ancient Books Go Online reports:

"The BBC is reporting that the United Nations' World Digital Library has gone online with an initial offering of 1,200 ancient manuscripts, parchments and documents. To no great surprise, Europe comes in first with 380 items. South America comes in second with 320, with a very distant third place being given to the Middle East at a paltry 157 texts. This is only the initial round, so the leader board can be expected to change. There are, for example, a lot of Sumerian and Babylonian tablets, many of which are already online elsewhere. Astonishingly, the collection is covered by numerous copyright laws, according to the legal page. Use of material from a given country is subject to whatever restrictions that country places, in addition to any local and international copyright laws. With some of the contributions being over 8,000 years old, this has to be the longest copyright extension ever offered. There is nothing on whether the original artists get royalties, however."

This excellent Slate piece, My Mythical Online Rental Service for Movies: Why Hollywood is so slow to catch up on offering all of its movies and shows online, provides a good explanation of why it's going to be AT LEAST 10 YEARS before we have decent online movies on demand--and why bittorrent and movie pirating will only continue in popularity.

The article explains that, due to the incredibly confusing, complex, and slow-to-change contractual system that locks up and segments movie rights, "Reed Hastings, Netflix's founder, told the Hollywood Reporter last month that it'll be 10 years before we see a streaming service that offers any movie at any time."

This is all due to a byzantine web of contracts, build up on the foundation of copyright. It's truly stunning. I would not be surprised if it's 20 years, or more.

Update: See also Mike Masnick's excellent post, Would You Rather Renegotiate Your Contracts... Or See Your Business Collapse?

[Cross-posted on Mises Blog.]

Google Books On The iPhone and G1 Is Almost Kindle-Like (And Real Mobile Kindle May Be Coming Soon) rightly raves about about the mobile version of Google Books. It works great on an iPhone (and it turns out the rumors about Kindle coming to the iPhone were right; see also my LRC post Kindle v. Netbook v. ePub, Bookworm and Stanza).

However, it turns out that you can only see "free" google books in mobile site. For example, on my iPhone I cannot see the 1907 Edith Nesbit book The Enchanted Castle in the mobile-optimized version of Google Books. (Try it even from a regular browser, from that mobile site, you'll see what I mean.) However, if you go to the regular Google Books site, you can find and read the whole thing--even on an iPhone. You just can't use the mobile-optimized version of Google Books to view it--even on a computer. So you can read the book on an iPhone, but not in a mobile-optimized format.

I suspect that Google did this because of copyright concerns, as part of their deal with publishers--perhaps it made them carve out something for mobile phones or platforms. It's amazing how much copyright law distorts our entire economy.

[Cross-posted at Mises Blog.]