World IP Day: Time to Forge a Global Solution to a Global Problem (Blocking of Pirate Streaming Sites)

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I am writing today to mark World IP Day, April 26 and, as part of this salute to the work being done in protecting IP rights around the world, to highlight a growing global problem affecting IP stakeholders, streaming piracy. While the World Intellectual Property Organization (WIPO) does a great job of promoting an awareness of IP and in moving forward (usually slowly) with international remedies, the technological revolution has been changing the landscape for IP rights-holders at break-neck speed, in the process often benefiting those who make a business model out of free-riding. A recent study in the US indicated that streaming piracy in 2019 cost Over the Top (OTT) providers (i.e. content platforms like Netflix that deliver content through the backbone of the internet) and pay-TV companies $9.1 billion (USD) in losses from piracy and illicit account sharing. The report appears to be limited to the US and it is not clear what percentage of the losses come from piracy and what is from account sharing (if you want to pay $7,500 to acquire the report, you can get this information), but there is no question that streaming piracy is a major source of income loss for content distributors and forms a significant part of the estimated cost of overall piracy and counterfeiting. Continue reading “World IP Day: Time to Forge a Global Solution to a Global Problem (Blocking of Pirate Streaming Sites)”

Holding Google to Account: France Takes a Stand

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The French Competition Bureau (l’Autorité de la Concurrence) struck a strong blow in the global effort to hold Google to account under national laws when it issued an order on April 9 requiring Google to negotiate with French press publishers and news providers regarding licensing fees for news content appearing in Google search listings in France. The Authority gave Google three months to negotiate “in good faith” (de bonne foi) and come up with an agreement that results in payment to publishers. This marks an escalation in the wrestling match between Google and European regulators over a new requirement in the EU Copyright Directive requiring search engines and news aggregators to compensate news content providers for excerpting snippets of their content when providing search results. Under Article 15 of the Directive a new “neighbouring right” has been given to press publishers expanding their ability to control the reproduction and communication of their work to the public. Continue reading “Holding Google to Account: France Takes a Stand”

COVID is Not an Excuse to Throw the Accepted Rules Out the Window: Copyright as the Canary in the Coalmine.

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As I write we are in the depths of the COVID pandemic. Each day brings new and more frightening predictions of what is to come, what we all need to do to “bend the curve”, and how it is affecting people globally from both a health and economic perspective. The pandemic is a once-in-a-lifetime challenge to the increasingly globalized world in whiche have grown up, and could have long-term ramifications for the way we conduct ourselves and interact in future. Thus it is all the more important that the accepted and established rules governing our behaviour be respected. Continue reading “COVID is Not an Excuse to Throw the Accepted Rules Out the Window: Copyright as the Canary in the Coalmine.”

A Fairy Tale with an Unhappy Ending: Could it Happen in Real Life?

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Friends, gather round and let me tell you a fairy tale about the imaginary Kingdom of Nonesuch, and recount something quite surprising and unfair that happened there. Nonesuch is a progressive place, endowed with a well-developed governance and legal system, and a vibrant cultural, technological and educational infrastructure. It is a large country governed through a federal structure, and composed of a number of constituent principalities. North Begonia is one of these sub-national principalities, but there are a number of others. Being a Kingdom, it naturally has a King. Sometimes the Kings have been wise and widely respected, even though they slept a lot; at other times the King has been vain and foolish, and spent all his time watching television. But that is the problem with being a Kingdom. You get what you get. Continue reading “A Fairy Tale with an Unhappy Ending: Could it Happen in Real Life?”

Copyright Industries and Creators in the Age of COVID-19: The Impact and the Response

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As I sit here looking out my window at fresh daffodils and cherry blossoms, it is hard to imagine that a potentially deadly virus is stalking the land. Of course I am lucky to be where I am, on Vancouver Island where spring has arrived; in other parts of Canada and the world spring flowers are still a few weeks away, but they will come, COVID-19 or not. And that is important to remember; nature’s cycle goes on and we want to ensure that we take all necessary measures now so that we enjoy many more springs to come. Continue reading “Copyright Industries and Creators in the Age of COVID-19: The Impact and the Response”

AI, Ethics and Copyright

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The intrusion of Artificial Intelligence (AI) into our daily lives has raised major questions of ethics among researchers, companies that are developing and using AI, and of course consumers. Already algorithms play an important if largely invisible role in our daily affairs, controlling everything from how our tax returns are assessed, to the ads that we receive online, to our insurability and calculation of life expectancy….and of course many, many more applications. Efforts to combat COVID-19 is the latest manifestation of this, from self-assessment tools put online by various jurisdictions in North America to the app used in some Chinese cities that assigns a green/yellow/red code to personal cellphones.  Without a green code, free movement is impossible. The app is apparently linked to police databases and tracks movements, yet another example of algorithm “mission creep”, even if the goal on this occasion is understandable. But algorithms, seemingly ubiquitous these days, are only a stepping stone on the way to Artificial Intelligence. Continue reading “AI, Ethics and Copyright”

Implementing the USMCA/CUSMA: What Copyright-Related Constraints (and Costs) Does it Impose on Canada—and the US?

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The USMCA (called the CUSMA in Canada—just because we like to be different—I will use the two terms interchangeably) has passed in the US Congress and been signed by President Trump. It has also completed the ratification process in Mexico. But in Canada, where Justin Trudeau heads a minority Liberal government, it is still undergoing review in Parliament. To be completely accurate, the implementing legislation is undergoing review, since Parliamentary approval is not required for an international treaty, but when that treaty requires changes to legislation, those changes must be approved by Parliament. While it is a given that this will sail through when a vote finally comes, the opposition parties are making the Liberals jump through hoops by demanding hearings on the legislation, known as Bill C-4. The Bill will amend 24 disparate pieces of legislation ranging from the Copyright Act and Broadcasting Act to the Bank Act, the Canada Grain Act, the Fertilizers Act, the Importation of Intoxicating Liquors Act and on and on. This amalgam of various legislative amendments is required for Canada to be in compliance with its USMCA commitments. Continue reading “Implementing the USMCA/CUSMA: What Copyright-Related Constraints (and Costs) Does it Impose on Canada—and the US?”

Fair Use by Stealth: The “Such As” Proposal in Canada

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Last week (February 24-28) was “Fair Use/Fair Dealing” week in the US, Canada and some other countries. Many libraries, such as the Association of Research Libraries in the US (ARL has a few Canadian members) and a number of universities in Canada are active in promoting fair use and fair dealing week. It is the occasion to remind ourselves that an integral part of the copyright system is the fair use and fair dealing exceptions built into copyright law. As I have commented in the past, anyone who is an author almost certainly uses the flexibility offered by fair use or fair dealing to enable the creation of new works. Under fair dealing in Canada there are legitimate exceptions to copyright for a number of purposes. These include research, private study, education, parody, satire, criticism, review, or news reporting. For criticism, review, and news reporting, the source and author must be named to constitute fair dealing. (In addition there are other specified exceptions such as “non-commercial user-generated content”, “reproduction for private purposes” and “recording programs for later listening or viewing”, and so on.) Continue reading “Fair Use by Stealth: The “Such As” Proposal in Canada”

Exporting the US “Fair Use” Doctrine to South Africa: The Battle Lines are Drawn

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An interesting battle between pro and anti-copyright industries in the US is being played out in submissions to the US Trade Representative’s Office (USTR) regarding whether South Africa should be stripped of its GSP (Generalized System of Preferences) status. According to USTR, “The GSP program provides for the duty-free importation of designated articles when imported from designated beneficiary developing countries.” GSP status can be challenged by US industries on various grounds. For example, the current GSP review is looking at a number of countries beside South Africa, including Azerbaijan and Uzbekistan for alleging denying worker rights, Ecuador for not acting in good faith in implementing arbitral awards and South Africa (and Indonesia) for allegedly failing to provide adequate and effective protection of intellectual property rights. It is the South African case that is of interest here. Continue reading “Exporting the US “Fair Use” Doctrine to South Africa: The Battle Lines are Drawn”

EU “Third Country” IP Report Targets China (Again), adds Saudi Arabia to Priority List, and drops USA

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The European Commission recently issued its biannual report on the protection and enforcement of intellectual property rights in “third countries”. (I was a bit confused about this terminology, wondering which nations constitute “second countries” but apparently it is standard EU parlance used to describe any country not part of the EU, the assumption being that at least two countries form the EU so any country not within the Union must be a “third country”. Britain now qualifies as a third country so I wonder if it will figure in the EU’s next report.) The report has been issued since 2006 although two years ago the EU added a new “Watch List” report covering notorious online and offline markets for pirated and counterfeit goods, similar to the Notorious Markets Report issued periodically by the US Trade Representative’s Office (USTR). That EU report can be found here. Continue reading “EU “Third Country” IP Report Targets China (Again), adds Saudi Arabia to Priority List, and drops USA”