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The Daily Digital Lock Dissenter, Day 1: The Provincial Resource Centre for the Visually Impaired

The Daily Digital Lock Dissenter, Day 1: The Provincial Resource Centre for the Visually Impaired
With the introduction of Bill C-11 last week, the government plans to move swiftly to pass its copyright reform bill, including restrictive digital lock rules that have been roundly criticized by many consumer, education, and business groups from across the country. As the bill winds its way through the legislative process, I thought it would be useful to provide a daily reminder of what Canadians have told the government about the digital lock issue. Over the next few months, I plan a daily digital lock post that quotes from a submission to the Bill C-32 legislative committee or the 2009 national copyright consultation. The posts will begin with group submissions but I'll feature individual submissions later in the series as well. The series begins with the Provincial Resource Centre for the Visually Impaired (PRCVI) British Columbia, which works to assist blind and visually impaired students: The exception that permits circumvention of technological protection measures (TPMs) and the means to circumvent these measures for the purpose of producing alternate formats (Section 41.16(1)) may be largely nullified by the condition “to not unduly impair the technological protection measure.” According to the Canadian Library Association there is no effective technical way to remove the TPMs and to restore them after an alternate format has been created. The TPMs would in all likelihood, interfere with the use of some, if not all, of the adaptive technologies used by students with perceptual disabilities to access educational materials.
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NDP MP Charlie Angus Responds to Moore's Attacks

NDP MP Charlie Angus Responds to Moore's Attacks
The House of Commons is shut down due to today's earthquake, but I have received a copy of a release from the office of NDP MP Charlie Angus which responds to Canadian Heritage Minister James Moore's attack on fair copyright.  The NDP planned to issue the release today, but cannot due to the office closure.  I was given permission to post the release in its entirety. FOR IMMEDIATE RELEASEJUNE 23, 2010 NEW DEMOCRATS CALL MOORE OFFSIDE FOR ATTACKING FAIR COPYRIGHT ADVOCATESMinister’s description of ‘radical extremists’ shows he’s in need of a time-out  
TIMMINS – Speaking at a G20 Chamber of Commerce event, Heritage Minister James Moore inexplicably lashed out at those who have raised concerns with his new copyright bill, C-32. Moore characterised fair copyright advocates as “babyish” and enemies of any copyright reform whatsoever. He called them “radical extremists” who must be “confronted every step of the way until they are defeated.” New Democrat Digital Affairs Critic Charlie Angus (Timmins-James Bay) said Moore’s comments are reminiscent of a war-time call-to-arms and are way out of line.

“Attacking teachers, students, artists and consumers who have legitimate questions about this legislation is ridiculous,” said Angus. “Instead of understanding and appreciating the nuances of balanced copyright, the Minister is appearing hyper-defensive and bombastic. I think he needs a time out.”

In his speech to the conference, Moore claimed the government’s attack on consumer rights are necessitated by Canada’s international obligations under the World Intellectual Property Organization (WIPO) treaties.  Angus says Moore simply has his facts wrong.

“James Moore shouldn’t hide behind international treaties to excuse the significant stumbling blocks he has put into the bill. All the experts, including those civil servants who drafted the bill, agree that it could be WIPO-compliant without his push for American-style protection for digital locks,” said Angus. “The Tories are pushing this failed agenda that will criminalize perfectly reasonable behaviour and deny educators legal access to works which they should logically have.”

Angus says Moore needs to tone down the rhetoric and get down to the serious business of working with all stakeholders on amendments that will improve the legislation.

“A Minister shouldn’t resort to name calling or start a war with fair-copyright advocates just because he doesn’t like the feedback he’s getting on Twitter,” said Angus.  “If Moore spent more time listening to the educators, experts, academics and artists who have serious issues with this bill, maybe his public statements wouldn’t be so out of line with everyday Canadians who simply want balanced legislation.”

-30-

For more information please contact:

George Soule, Caucus Press Secretary: 613-850-3448 or souleg@parl.gc.ca

ACTA Emergency Communique: Add Your Name Today

ACTA Emergency Communique: Add Your Name Today
Last week, I had the honour of delivering the opening keynote address at a conference on the Anti-Counterfeiting Trade Agreement held in Washington.  The event brought together over 90 academics, practitioners and public interest organizations from five continents at American University Washington College of Law.  The resulting papers are among the most comprehensive anywhere on the implications of ACTA for countries around the world.

Last week, I had the honour of delivering the opening keynote address at a conference on the Anti-Counterfeiting Trade Agreement held in Washington.  The event brought together over 90 academics, practitioners and public interest organizations from five continents at American University Washington College of Law.  The resulting papers are among the most comprehensive anywhere on the implications of ACTA for countries around the world.

I plan to post my presentation shortly, but with negotiations scheduled to resume next week of greater urgency is a draft statement the reflects the conclusion of the meeting.  The statement is now open to endorsements.  Please read and consider adding your name to it by the deadline of Wednesday, June 23rd at 9:00 am by visiting the PIJIP site or emailing acta.declaration@gmail.com.  A draft is posted below:

This DRAFT statement reflects the conclusions reached at a meeting of over 90 academics, practitioners and public interest organizations from five continents gathered at American University Washington College of Law, June 16-18, 2010. In the days following the meeting, the statement received the individual and organizational endorsements listed below, and is still open for further endorsements at www.pijip.org

The meeting, convened by American University's Program on Information Justice and Intellectual Property, was called to analyze the official text of the Anti-Counterfeiting Trade Agreement (ACTA), released for the first time in April, 2010, after years of secretive negotiations. The text was released in the context of public criticism of the process and presumed substance of the negotiations (see Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations). Negotiators claim that ACTA will not harm significant public interests.


We find that the terms of the agreement threaten numerous public interests, including nearly every concern specifically disclaimed by the negotiators in their announcement.
The proposed agreement is a deeply flawed product of a deeply flawed process.

What started as a proposal to coordinate customs enforcement offices has morphed into a massive new international intellectual property (IP) and internet regulation with grave consequences for the global economy and governments' ability to promote and protect public interests.

Any agreement of this scope and consequence must be based on a broad and consultative process and reflect a full range of public interest concerns. As detailed below, this text fails to meet these standards.

Recognizing that the terms of the agreement are under negotiation, a fair reading of the proposed text as a whole leads to our conclusions that ACTA:

THE INTERNET
-Encourages internet service providers to police users of the internet without adequate court oversight or due process;

-Globalizes 'anti-circumvention' provisions which threaten innovation, competition, open source business models, interoperability, copyright exceptions, and user choice;

FREE TRADE AND ACCESS TO MEDICINES
-Disrupts the free trade in legitimate generic medicines and other goods, and sacrifices the foundational principle that IP rights are territorial, by requiring customs authorities to seize goods in transit countries even when they do not violate any law of the producing and importing countries;

-Does little or nothing to address the problem of medicines with insufficient or wrong ingredients as the majority of these are not IP but regulatory system problems.

-Extends the powers of custom officials to search and seize a wide range of goods, including computers and other electronic devices, without adequate safeguards against unwarranted confiscations and privacy invasions;

-Extends 'ex officio' border search and seizures from willful, commercial scale trademark counterfeiting to a broad range of intellectual property infringements, including “confusingly similar” trademark violations, copyright infringement standards that require interpretation of "fair use" or similar user rights, and even to patent cases which frequently involve complex questions of law and fact that are difficult to adjudicate even by specialist courts after full adjudicative processes;
FUNDAMENTAL RIGHTS AND FREEDOMS
-Will curtail full enjoyment of fundamental rights and liberties, including rights to privacy and the protection of personal data, health, access to information, free expression, due process and presumptions of innocence, cultural participation, and other internationally protected human rights;

SCOPE AND NATURE OF IP LAW
Distorts the balance fundamental to IP law between the rights and interests of proprietors and users, including by

* introducing very specific rights and remedies for rights holders without correlative requirements to provide exceptions, limitations, and due process safeguards for users;
* shifting enforcement from private civil mechanisms to public authorities and third parties, including to customs officials, criminal prosecutors and internet service providers -- in ways that are likely to be more sensitive to proprietary concerns and less sensitive to user concerns;
* omitting liability and disincentives for abuses of enforcement processes by right holders; and
* requiring the adoption of automatic damages assessments unrelated to any proven harm;

-Alters the traditional and constitutionally mandated law making processes for IP by:

* locking in and exporting controversial aspects of US and EU enforcement practices whcih have already proven problematic, foreclosing future legislative improvements in response to changes in technology or policy;
* requiring substantive changes to intellectual property laws of a large number of negotiating countries.

INTERNATIONAL TRADE AND DEVELOPMENT
-Will disproportionately harm development and social welfare of the poor, particularly in developing countries, including through raising unjustifiable trade barriers to imports and exports of needed medicines and other knowledge embedded goods;

-Contains provisions inconsistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement);

-Conflicts with the World Trade Organization Doha Declaration on TRIPS and Public Health and World Health Assembly Resolution 61.21 by limiting the ability of countries to exercise to the full flexibilities in the TRIPS agreement that can promote access to needed medicines;

-Circumvents and undermines the commitments agreed to under the World Intellectual Property Organization development agenda, particularly recommendation 45 committing to “approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns," and "in accordance with Article 7 of the TRIPS Agreement";

INSTITUTIONAL ISSUES
-Creates a new and redundant international administration for IP issues outside of WIPO or the WTO with broad powers but limited transparency, threatening multilateralism in international IP norm setting;

-Encourages technical assistance, public awareness campaigns, and partnerships with the private sector that appear designed to promote only the interests of IP owners;

CONCLUSIONS ABOUT THE DEMOCRATIC PROCESS

The current process for considering public input into ACTA is fundamentally flawed in numerous respects. In many countries, the only consultations taking place are with select members of the public, off-the-record and without benefit of sharing the latest version of the rapidly changing text. There is little possibility that a fair and balanced agreement that protects and promotes public interests can evolve from such a distorted policy making process.

Governments, right holders and civil society should have an open and evidence-based discussion on the right strategy to confront willful commercial scale trademark counterfeiting and commercial scale copyright piracy. This discussion should take place in multilateral and national open and on-the-record forums with access to current negotiating text so that all interested stakeholders can participate.

Last week, I had the honour of delivering the opening keynote address at a conference on the Anti-Counterfeiting Trade Agreement held in Washington.  The event brought together over 90 academics, practitioners and public interest organizations from five continents at American University Washington College of Law.  The resulting papers are among the most comprehensive anywhere on the implications of ACTA for countries around the world.

I plan to post my presentation shortly, but with negotiations scheduled to resume next week of greater urgency is a draft statement the reflects the conclusion of the meeting.  The statement is now open to endorsements.  Please read and consider adding your name to it by the deadline of Wednesday, June 23rd at 9:00 am by visiting the PIJIP site or emailing acta.declaration@gmail.com.  A draft is posted below:

This DRAFT statement reflects the conclusions reached at a meeting of over 90 academics, practitioners and public interest organizations from five continents gathered at American University Washington College of Law, June 16-18, 2010. In the days following the meeting, the statement received the individual and organizational endorsements listed below, and is still open for further endorsements at www.pijip.org

The meeting, convened by American University's Program on Information Justice and Intellectual Property, was called to analyze the official text of the Anti-Counterfeiting Trade Agreement (ACTA), released for the first time in April, 2010, after years of secretive negotiations. The text was released in the context of public criticism of the process and presumed substance of the negotiations (see Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations). Negotiators claim that ACTA will not harm significant public interests.


We find that the terms of the agreement threaten numerous public interests, including nearly every concern specifically disclaimed by the negotiators in their announcement.
The proposed agreement is a deeply flawed product of a deeply flawed process.

What started as a proposal to coordinate customs enforcement offices has morphed into a massive new international intellectual property (IP) and internet regulation with grave consequences for the global economy and governments' ability to promote and protect public interests.

Any agreement of this scope and consequence must be based on a broad and consultative process and reflect a full range of public interest concerns. As detailed below, this text fails to meet these standards.

Recognizing that the terms of the agreement are under negotiation, a fair reading of the proposed text as a whole leads to our conclusions that ACTA:

THE INTERNET
-Encourages internet service providers to police users of the internet without adequate court oversight or due process;

-Globalizes 'anti-circumvention' provisions which threaten innovation, competition, open source business models, interoperability, copyright exceptions, and user choice;

FREE TRADE AND ACCESS TO MEDICINES
-Disrupts the free trade in legitimate generic medicines and other goods, and sacrifices the foundational principle that IP rights are territorial, by requiring customs authorities to seize goods in transit countries even when they do not violate any law of the producing and importing countries;

-Does little or nothing to address the problem of medicines with insufficient or wrong ingredients as the majority of these are not IP but regulatory system problems.

-Extends the powers of custom officials to search and seize a wide range of goods, including computers and other electronic devices, without adequate safeguards against unwarranted confiscations and privacy invasions;

-Extends 'ex officio' border search and seizures from willful, commercial scale trademark counterfeiting to a broad range of intellectual property infringements, including “confusingly similar” trademark violations, copyright infringement standards that require interpretation of "fair use" or similar user rights, and even to patent cases which frequently involve complex questions of law and fact that are difficult to adjudicate even by specialist courts after full adjudicative processes;
FUNDAMENTAL RIGHTS AND FREEDOMS
-Will curtail full enjoyment of fundamental rights and liberties, including rights to privacy and the protection of personal data, health, access to information, free expression, due process and presumptions of innocence, cultural participation, and other internationally protected human rights;

SCOPE AND NATURE OF IP LAW
Distorts the balance fundamental to IP law between the rights and interests of proprietors and users, including by

* introducing very specific rights and remedies for rights holders without correlative requirements to provide exceptions, limitations, and due process safeguards for users;
* shifting enforcement from private civil mechanisms to public authorities and third parties, including to customs officials, criminal prosecutors and internet service providers -- in ways that are likely to be more sensitive to proprietary concerns and less sensitive to user concerns;
* omitting liability and disincentives for abuses of enforcement processes by right holders; and
* requiring the adoption of automatic damages assessments unrelated to any proven harm;

-Alters the traditional and constitutionally mandated law making processes for IP by:

* locking in and exporting controversial aspects of US and EU enforcement practices whcih have already proven problematic, foreclosing future legislative improvements in response to changes in technology or policy;
* requiring substantive changes to intellectual property laws of a large number of negotiating countries.

INTERNATIONAL TRADE AND DEVELOPMENT
-Will disproportionately harm development and social welfare of the poor, particularly in developing countries, including through raising unjustifiable trade barriers to imports and exports of needed medicines and other knowledge embedded goods;

-Contains provisions inconsistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement);

-Conflicts with the World Trade Organization Doha Declaration on TRIPS and Public Health and World Health Assembly Resolution 61.21 by limiting the ability of countries to exercise to the full flexibilities in the TRIPS agreement that can promote access to needed medicines;

-Circumvents and undermines the commitments agreed to under the World Intellectual Property Organization development agenda, particularly recommendation 45 committing to “approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns," and "in accordance with Article 7 of the TRIPS Agreement";

INSTITUTIONAL ISSUES
-Creates a new and redundant international administration for IP issues outside of WIPO or the WTO with broad powers but limited transparency, threatening multilateralism in international IP norm setting;

-Encourages technical assistance, public awareness campaigns, and partnerships with the private sector that appear designed to promote only the interests of IP owners;

CONCLUSIONS ABOUT THE DEMOCRATIC PROCESS

The current process for considering public input into ACTA is fundamentally flawed in numerous respects. In many countries, the only consultations taking place are with select members of the public, off-the-record and without benefit of sharing the latest version of the rapidly changing text. There is little possibility that a fair and balanced agreement that protects and promotes public interests can evolve from such a distorted policy making process.

Governments, right holders and civil society should have an open and evidence-based discussion on the right strategy to confront willful commercial scale trademark counterfeiting and commercial scale copyright piracy. This discussion should take place in multilateral and national open and on-the-record forums with access to current negotiating text so that all interested stakeholders can participate.

Agenda For Round Nine of ACTA Talks Posted

Agenda For Round Nine of ACTA Talks Posted
The agenda for the ninth round of ACTA talks scheduled for Lucerne, Switzerland from June 28 - July 1st.  All the major issues - civil enforcement, criminal provisions, Internet issues, and border measures - are on the agenda.  The agenda includes two elements that suggest considerable progress has been made.

The agenda for the ninth round of ACTA talks scheduled for Lucerne, Switzerland from June 28 - July 1st.  All the major issues - civil enforcement, criminal provisions, Internet issues, and border measures - are on the agenda.

The agenda includes two elements that suggest considerable progress has been made.  First, the morning of the first day is devoted to a report on "intersessional work." This confirms rumours that there have been considerable negotiations (and progress) since New Zealand.  Second, the international cooperation chapter makes the agenda for the first time.  Its inclusion similarly suggests that countries are nearing agreement on the substantive areas and beginning to think about the rest of the text.  While ACTA won't be finalized in Switzerland, real progress would not be a surprise.  Finally, transparency is included toward the end of the final day, meaning that questions about whether an updated draft will be released should be addressed before concluding the round of talks.

The agenda for the ninth round of ACTA talks scheduled for Lucerne, Switzerland from June 28 - July 1st.  All the major issues - civil enforcement, criminal provisions, Internet issues, and border measures - are on the agenda.

The agenda includes two elements that suggest considerable progress has been made.  First, the morning of the first day is devoted to a report on "intersessional work." This confirms rumours that there have been considerable negotiations (and progress) since New Zealand.  Second, the international cooperation chapter makes the agenda for the first time.  Its inclusion similarly suggests that countries are nearing agreement on the substantive areas and beginning to think about the rest of the text.  While ACTA won't be finalized in Switzerland, real progress would not be a surprise.  Finally, transparency is included toward the end of the final day, meaning that questions about whether an updated draft will be released should be addressed before concluding the round of talks.

WTO Report on TRIPS Council and ACTA

WTO Report on TRIPS Council and ACTA
The World Trade Organization has posted further information on last week's Council meeting where India, China, and other developing countries raised concerns with the Anti-Counterfeiting Trade Agreement.

The World Trade Organization has posted further information on last week's Council meeting where India, China, and other developing countries raised concerns with the Anti-Counterfeiting Trade Agreement.  The report notes the following:

Briefly, China’s and India’s lengthy statements argued that ACTA and other agreements could:

  • Conflict with TRIPS Agreement (a reference to TRIPS Art.1.1) and other WTO agreements, and cause legal uncertainty
  • Undermine the balance of rights, obligations and flexibilities that were carefully negotiated in the various WTO agreements
  • Distort trade or create trade barriers, and disrupt goods in transit or transhipment
  • Undermine flexibilities built into TRIPS (such as for public health, and trade in generic medicines)
  • Undermine governments’ freedom to allocate resources on intellectual property by forcing them to focus on enforcement
  • Set a precedent that would require regional and other agreements to follow suit. (One example cited was negotiations involving CARIFORUM, the group of Caribbean states. However, a delegation representing CARIFORUM said it understood the concerns but denied that CARIFORUM would have to apply ACTA’s provisions.)

They also argued that the focus on enforcement did not take into account a country’s level of development. A number of developing countries broadly supported the concern.

Reaction: ACTA participants voiced their concerns about what they saw as a steadily increasing level of counterfeiting and piracy. They countered that the draft ACTA agreement will not conflict with TRIPS and other WTO provisions. They denied it would upset the negotiated balance, distort legitimate trade or undermine TRIPS flexibilities. One said generic medicines would not be affected since ACTA does not deal with patents.

They said that ACTA was necessary because counterfeiting is no longer a question of products such as fake luxury watches, but involves commercial scale production of fake medicines, car and aircraft parts and other products, which are dangerous to health and safety, and that developing countries are particularly vulnerable.

Some of them also said they had to get together outside the WTO because countries had opposed discussing enforcement substantively in the TRIPS Council.

Conclusion: The TRIPS Council took note of the comments. (This is not a permanent agenda item and whether or not it is discussed in future meetings depends on what members propose.)

The World Trade Organization has posted further information on last week's Council meeting where India, China, and other developing countries raised concerns with the Anti-Counterfeiting Trade Agreement.  The report notes the following:

Briefly, China’s and India’s lengthy statements argued that ACTA and other agreements could:

  • Conflict with TRIPS Agreement (a reference to TRIPS Art.1.1) and other WTO agreements, and cause legal uncertainty
  • Undermine the balance of rights, obligations and flexibilities that were carefully negotiated in the various WTO agreements
  • Distort trade or create trade barriers, and disrupt goods in transit or transhipment
  • Undermine flexibilities built into TRIPS (such as for public health, and trade in generic medicines)
  • Undermine governments’ freedom to allocate resources on intellectual property by forcing them to focus on enforcement
  • Set a precedent that would require regional and other agreements to follow suit. (One example cited was negotiations involving CARIFORUM, the group of Caribbean states. However, a delegation representing CARIFORUM said it understood the concerns but denied that CARIFORUM would have to apply ACTA’s provisions.)

They also argued that the focus on enforcement did not take into account a country’s level of development. A number of developing countries broadly supported the concern.

Reaction: ACTA participants voiced their concerns about what they saw as a steadily increasing level of counterfeiting and piracy. They countered that the draft ACTA agreement will not conflict with TRIPS and other WTO provisions. They denied it would upset the negotiated balance, distort legitimate trade or undermine TRIPS flexibilities. One said generic medicines would not be affected since ACTA does not deal with patents.

They said that ACTA was necessary because counterfeiting is no longer a question of products such as fake luxury watches, but involves commercial scale production of fake medicines, car and aircraft parts and other products, which are dangerous to health and safety, and that developing countries are particularly vulnerable.

Some of them also said they had to get together outside the WTO because countries had opposed discussing enforcement substantively in the TRIPS Council.

Conclusion: The TRIPS Council took note of the comments. (This is not a permanent agenda item and whether or not it is discussed in future meetings depends on what members propose.)

Setting the Record Straight: 32 Questions and Answers on C-32's Digital Lock Provisions, Part Four

Setting the Record Straight: 32 Questions and Answers on C-32's Digital Lock Provisions, Part Four
The first three posts on the 32 Questions and Answers on Bill C-32's digital lock provisions focused first on general issues in the bill, second on C-32's circumvention exceptions, and third on the missing exceptions.  Today's post discusses the consumer-focused provisions in the bill. For those that want it all in a single package, I've posted the full series as PDF download. The Consumer Provisions This section features answers to the following questions: Bill C-32 purports to allow consumer to legally shift music from CDs to their iPods or other devices.  Do they lose that right if there are digital locks on their CD? Does Bill C-32 allow consumers to make legal backup copies of most commercial DVDs? Does Bill C-32 allow consumers to shift content from a DVD to a portable video player such as an iPad? C-32 purports to allow consumer to legally record television shows, yet cable companies are increasingly inserting anti-copying technologies into some broadcasts?  Does C-32 allow for those programs to be recorded? C-32 includes an exception for unlocking cellphones.  Isn't that a positive new development? Does C-32 require businesses to notify consumers about the presence of digital locks? Isn't there an "analog hole" that would allow someone to record a DVD without circumventing the digital lock?
Bill C-32 purports to allow consumer to legally shift music from CDs to their iPods or other devices.  Do they lose that right if there are digital locks on their CD?

Yes. The new right to legally shift music is subject to an anti-circumvention limitation.  In other words, the right to shift music to your iPod is not a right that you control.  It is a right that is effectively dictated by the record label who can easily remove the right by including copy-controls on the CD release (there are thousands of these kinds of CDs owned by Canadians).  In fact, the anti-circumvention limitation even applies to private copies onto blank CDs.  This means that consumers pay for the CD and pay the levy on a blank CD that nominally gives them the right to make a personal copy, yet violate the law if they circumvent a copy-control in order to do so. 

Does Bill C-32 allow consumers to make legal backup copies of most commercial DVDs?

No.  The new backup copy provision are subject to an anti-circumvention limitation.  Since most commercial DVDs currently contain several TPMs, consumers would not be able to legally make a backup copy of their own personal DVDs.

Does Bill C-32 allow consumers to shift content from a DVD to a portable video player such as an iPad?

No. The format shifting provision is subject to an anti-circumvention limitation.  Since most commercial DVDs currently contain several TPMs, consumers would not be able to legally make a backup copy of their own personal DVDs.

C-32 purports to allow consumer to legally record television shows, yet cable companies are increasingly inserting anti-copying technologies into some broadcasts?  Does C-32 allow for those programs to be recorded?


No.  If there is a digital lock (often referred to as a broadcast flag) included with the broadcast, you can't legally circumvent it in order to record the program.  Note that the U.S. has established limits on the use of the broadcast flag, but no such limits exist in Canada.  As Canada transitions to digital, it is possible that broadcasters will increasingly institute anti-copying notices to stop the very recording rights that C-32 purports to provide. 
 
C-32 includes an exception for unlocking cellphones.  Isn't that a positive new development?


The inclusion of a circumvention exception for unlocking cellphones is certainly a good thing, yet the net effect is merely to retain the status quo.  It is currently legal in Canada to unlock a cellphone, with the primary barriers being carrier contracts and technical inability to do so.  The new exception does not create any new rights to unlock the cellphone, but rather merely retains the current right to do so.

Does C-32 require businesses to notify consumers about the presence of digital locks?

No.  Bill C-32 does not contain any notice requirement regarding the limitations imposed by DRM on a consumer product. Most consumers know little if anything about DRMs and the limitations that may be placed on consumer entertainment products such as CDs, DVDs, video games, or digital download services.  While there may some limited disclosures - DVDs indicate the region code, if your eyesight is good enough you might notice that some copy-controlled CDs warn on the back corner that they may not play on all computers, and digital download services all feature lengthy user agreements that few consumers will ever read - they are plainly insufficient and the government should not support the legal fiction that "informed" consumers are knowingly purchasing products that contain a host of limitations.

For many consumers, these DRM products are simply not fit for purpose - they often won't play on your DVD player, on your iPod, or permit usage that most would expect is permissible.  Moreover, consumers frequently can't obtain a refund for their purchases as many retailers won't accept returns on opened CDs and DVDs and digital download services do not offer refunds to disgruntled downloaders.

The federal government might argue that this is provincial problem, since consumer protection issues typically fall under provincial jurisdiction.  The reality, however, is that the federal government can and should play its part to address the issue given the manner it which it is supporting the use of DRM through Bill C-32.  It should consider establishing DRM labeling requirements (an approach also advocated by the Society for Law and Computers in the UK) so that consumers will be able to quickly identify capabilities, compatibilities, and limitations.  The Competition Bureau is currently responsible for two labelling statutes - the Consumer Packaging and Labelling Act and the Textile Labelling Act.  If labelling is required for upholstered furniture, surely it can be added for consumer entertainment products.

Isn't there an "analog hole" that would allow someone to record a DVD without circumventing the digital lock?

Yes.  It is true that rather than picking a digital lock on DVD, a person could try to camcord an analog version of a film.  In fact, this is precisely what the MPAA argued last year, claiming that there was no need for a film studies exemption in the DMCA since there is an analog way to create film clips.  Rather than break the encryption on a DVD, teachers could camcord the same film clips.  In fact, the organization showed a video demonstrating how to effectively camcord clips of DVDs without breaking the encryption on the DVD. 

Leaving aside how surreal it is to see the same organization that travels the world demanding anti-camcording legislation now citing it as a solution, the analog hole is not a solution for making backup copies of DVD or format shifting.  It might only be used for a very brief clip, but given the government's stated goal of modernizing Canadian copyright law, it is worth asking whether a law that proposed using camcording films to preserve basic copyright rights has struck the right balance.  Note that the Film Studies Association of Canada was outspoken on C-61.

India Comes Out Swinging Against ACTA at WTO

India Comes Out Swinging Against ACTA at WTO
The Government of India came out forcefully against ACTA this week in an intervention at the World Trade Organization.  The India position, which may well reflect the views of other ACTA-excluded countries, demonstrates that ACTA is emerging as a contentious political issue that extends well beyond civil society and business groups concerned with the agreement.  Countries excluded from the ACTA process have to come to recognize the serious threat it represents both substantively as well as for the future of multilateral organizations.

The Government of India came out forcefully against ACTA this week in an intervention at the World Trade Organization.  The India position, which may well reflect the views of other ACTA-excluded countries, demonstrates that ACTA is emerging as a contentious political issue that extends well beyond civil society and business groups concerned with the agreement.  Countries excluded from the ACTA process have to come to recognize the serious threat it represents both substantively as well as for the future of multilateral organizations.

This growing concern from countries such as India represents a major new pressure point on the ACTA discussions.  The notion that ACTA countries could negotiate an agreement that would ultimately be used to pressure non-ACTA countries to conform without attracting opposition from those very countries was always unrealistic.  If the April ACTA round of talks was marked by the mounting pressure for greater transparency, the late June ACTA round of talks will undoubtedly have developing country opposition as its core concern.

India's intervention includes the following comments:

ACTA could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers. They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals.

Another systemic concern is that IPR negotiations in RTAs and plurilateral processes like ACTA completely bypass the existing multilateral processes.

A systemic impact Members should be aware of is that even if some Members are not a party to plurilateral initiatives like ACTA, they could still have to enforce ACTA provisions due to cross referencing.

The released ACTA text shows a general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure.

The intervention also focused on the specific substantive concerns with the border measure provisions:

Let me now turn Members specific attention to ACTA provisions relating to transit which are now public knowledge. We are aware that several provisions are still in square brackets, which actually means that their inclusion is well within the realm of possibility. The ACTA text requires that countries provide procedures for the customs seizure of goods “suspected” of infringing trademarks, copyrights and other IPRs against goods “in-transit”. According to the ACTA text, “In-transit” includes “customs transit” and “transhipment”. Seizures would be allowed even where there is a mere “prima facie” case of IPR infringement. In view of the recent seizures of generic drug consignments, provisions relating to ‘in-transit’ in all likelihood would create barriers to access to essential generic medicines,  as well  as access to critical climate change technologies. These provisions could concretise the legal framework the European Union has already instituted through its Council Regulation 1383/2003, which has been responsible for empowering customs and border officials to seize legitimate generic medicines exported by India to several developing countries, including LDCs. Let me remind Members that the EU has so far not provided us any legally satisfactory solution to recurring drug seizures leaving us with no option but to request for consultations under the WTO DSM on 11th May.

Turning to how the draft ACTA provisions can constrain TRIPS flexibilities, let me give an example. India's right to exercise flexibilities, such as granting compulsory licenses, would be interfered with by the mandatory application of border measures to goods in transit. Indian exporters could be constrained from shipping goods produced under its own exception to countries where there is no applicable IPRs protection because transit may be blocked by an intervening transit country’s application of domestic IPRs. Similarly, under the draft ACTA data exclusivity could be invoked by a transit country’s customs authorities as a basis for seizing pharmaceutical products in transit, even if there is no data exclusivity in the exporting and importing countries. This would obviously act as a significant constraint on exporting countries such as India.

The intervention concludes by emphasizing the need for multilateral approaches to addressing these issues and for greater involvement of the WTO.

Let me conclude by saying that these are not the concerns of India or the developing countries alone. Politicians, civil society and IP experts in ACTA members countries, have expressed concern regarding the substance and modus operandi of ACTA negotiations. It is a well known fact that 633 Members of European Parliament supported a Resolution in the European Parliament (Mar 10, 2010) deploring ACTA negotiations for bypassing the multilateral framework provided by the WTO and WIPO. Several such MEPs have written to DG, WTO and DG, WIPO requesting an impact assessment of the extent to which ACTA, as proposed, exceeds obligations in the current IP instruments and excludes flexibilities and exceptions contained in them. Even the US Government Accountability Office (GAO) has recently raised serious questions concerning the data that has been relied on by proponents of the ACTA to support the effort. IPR experts are increasingly challenging the concept of minimum standards concept and calling for setting maximum standards or ceilings so that there is (i) legal security and predictability about the boundaries of IP protection, (ii) protection of user’s rights and (iii) free movement of goods, services and information.

While India is committed to dealing with IPR enforcement issues in line with its TRIPS obligations, the introduction of intrusive IPRs enforcement rules applicable to goods and services in international trade does not represent a reasonable or realistic response. A response, if required, has to emerge from a multilateral and transparent process, as is available in the WTO TRIPS Council, and should fully conform to the objectives and principles (Art 7, 8 ) of TRIPS agreement and the balance of rights and obligations enshrined in the Agreement. As goods and services of developing countries are becoming competitive with those of developed country producers, TRIPS plus measures, like the ACTA, seek to introduce a new set of "non-tariff" barriers to trade that will preponderantly hinder developing country exporters. We urge developed country Members to keep these concerns in mind while dealing with IPR enforcement issues. Agreements such as ACTA have the portents to completely upset the balance of rights and obligations of the TRIPS Agreement. WTO cannot remain a silent observer to such a development. It is important that the issue is deliberated in this Council in detail.

The Government of India came out forcefully against ACTA this week in an intervention at the World Trade Organization.  The India position, which may well reflect the views of other ACTA-excluded countries, demonstrates that ACTA is emerging as a contentious political issue that extends well beyond civil society and business groups concerned with the agreement.  Countries excluded from the ACTA process have to come to recognize the serious threat it represents both substantively as well as for the future of multilateral organizations.

This growing concern from countries such as India represents a major new pressure point on the ACTA discussions.  The notion that ACTA countries could negotiate an agreement that would ultimately be used to pressure non-ACTA countries to conform without attracting opposition from those very countries was always unrealistic.  If the April ACTA round of talks was marked by the mounting pressure for greater transparency, the late June ACTA round of talks will undoubtedly have developing country opposition as its core concern.

India's intervention includes the following comments:

ACTA could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers. They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals.

Another systemic concern is that IPR negotiations in RTAs and plurilateral processes like ACTA completely bypass the existing multilateral processes.

A systemic impact Members should be aware of is that even if some Members are not a party to plurilateral initiatives like ACTA, they could still have to enforce ACTA provisions due to cross referencing.

The released ACTA text shows a general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure.

The intervention also focused on the specific substantive concerns with the border measure provisions:

Let me now turn Members specific attention to ACTA provisions relating to transit which are now public knowledge. We are aware that several provisions are still in square brackets, which actually means that their inclusion is well within the realm of possibility. The ACTA text requires that countries provide procedures for the customs seizure of goods “suspected” of infringing trademarks, copyrights and other IPRs against goods “in-transit”. According to the ACTA text, “In-transit” includes “customs transit” and “transhipment”. Seizures would be allowed even where there is a mere “prima facie” case of IPR infringement. In view of the recent seizures of generic drug consignments, provisions relating to ‘in-transit’ in all likelihood would create barriers to access to essential generic medicines,  as well  as access to critical climate change technologies. These provisions could concretise the legal framework the European Union has already instituted through its Council Regulation 1383/2003, which has been responsible for empowering customs and border officials to seize legitimate generic medicines exported by India to several developing countries, including LDCs. Let me remind Members that the EU has so far not provided us any legally satisfactory solution to recurring drug seizures leaving us with no option but to request for consultations under the WTO DSM on 11th May.

Turning to how the draft ACTA provisions can constrain TRIPS flexibilities, let me give an example. India's right to exercise flexibilities, such as granting compulsory licenses, would be interfered with by the mandatory application of border measures to goods in transit. Indian exporters could be constrained from shipping goods produced under its own exception to countries where there is no applicable IPRs protection because transit may be blocked by an intervening transit country’s application of domestic IPRs. Similarly, under the draft ACTA data exclusivity could be invoked by a transit country’s customs authorities as a basis for seizing pharmaceutical products in transit, even if there is no data exclusivity in the exporting and importing countries. This would obviously act as a significant constraint on exporting countries such as India.

The intervention concludes by emphasizing the need for multilateral approaches to addressing these issues and for greater involvement of the WTO.

Let me conclude by saying that these are not the concerns of India or the developing countries alone. Politicians, civil society and IP experts in ACTA members countries, have expressed concern regarding the substance and modus operandi of ACTA negotiations. It is a well known fact that 633 Members of European Parliament supported a Resolution in the European Parliament (Mar 10, 2010) deploring ACTA negotiations for bypassing the multilateral framework provided by the WTO and WIPO. Several such MEPs have written to DG, WTO and DG, WIPO requesting an impact assessment of the extent to which ACTA, as proposed, exceeds obligations in the current IP instruments and excludes flexibilities and exceptions contained in them. Even the US Government Accountability Office (GAO) has recently raised serious questions concerning the data that has been relied on by proponents of the ACTA to support the effort. IPR experts are increasingly challenging the concept of minimum standards concept and calling for setting maximum standards or ceilings so that there is (i) legal security and predictability about the boundaries of IP protection, (ii) protection of user’s rights and (iii) free movement of goods, services and information.

While India is committed to dealing with IPR enforcement issues in line with its TRIPS obligations, the introduction of intrusive IPRs enforcement rules applicable to goods and services in international trade does not represent a reasonable or realistic response. A response, if required, has to emerge from a multilateral and transparent process, as is available in the WTO TRIPS Council, and should fully conform to the objectives and principles (Art 7, 8 ) of TRIPS agreement and the balance of rights and obligations enshrined in the Agreement. As goods and services of developing countries are becoming competitive with those of developed country producers, TRIPS plus measures, like the ACTA, seek to introduce a new set of "non-tariff" barriers to trade that will preponderantly hinder developing country exporters. We urge developed country Members to keep these concerns in mind while dealing with IPR enforcement issues. Agreements such as ACTA have the portents to completely upset the balance of rights and obligations of the TRIPS Agreement. WTO cannot remain a silent observer to such a development. It is important that the issue is deliberated in this Council in detail.

Australian Senator Kate Lundy on ACTA

Australian Senator Kate Lundy on ACTA
Australian Senator Kate Lundy has posted a critique of ACTA, expressing concern about both its scope and secrecy.  Lundy endorses the Wellington Declaration as a good standard to apply to any IP trade policy consideration.

Australian Senator Kate Lundy has posted a critique of ACTA, expressing concern about both its scope and secrecy.  Lundy endorses the Wellington Declaration as a good standard to apply to any IP trade policy consideration.

Australian Senator Kate Lundy has posted a critique of ACTA, expressing concern about both its scope and secrecy.  Lundy endorses the Wellington Declaration as a good standard to apply to any IP trade policy consideration.

Reuters Reports Interim ACTA Meeting on Friday

Reuters covers the growing clash over ACTA with countries such as India and China increasingly concerned with the proposed agreement.  The report indicates that an interim ACTA meeting is planned for this Friday in Geneva.

If C-32 Becomes Law: Redline Version of the Copyright Act

If C-32 Becomes Law: Redline Version of the Copyright Act
Thanks once again to the hard work of my research assistant Keith Rose, posted below is a redline version of the Copyright Act with Bill C-32 incorporated into the law. 

Thanks once again to the hard work of my research assistant Keith Rose, posted below is a redline version of the Copyright Act with Bill C-32 incorporated into the law.