To most readers of this blog outside Canada, to lump the Super Bowl and the future of Canadian broadcasting into one sentence must seem like a total non sequitur. Except that it’s not really such a stretch. The issue is not the actual Super Bowl game itself but the ads that will accompany it, broadcast on US host network Fox. For some stakeholders in Canada, the Super Bowl ads are the tip of the iceberg, signalling the first step in unravelling a longstanding policy that has been important economically to the broadcast and creative sector in Canada. The core issue is all about the simultaneous substitution (so-called simsub) of Canadian ads into US programs distributed in Canada by Canadian broadcast platforms (i.e. cable and satellite providers). If this all sounds a bit arcane and complicated, it is– so let me explain. Continue reading “The Super Bowl and the Future of Canadian Broadcasting”
It was a classic case. Canadian graphic artist Jody Edwards, noted for her realistic and original feather watercolours, spotted some of her artwork printed on shirts for sale at the retail clothier Winners. It turned out that some of the same shirts were also for sale in Canada at Marshalls and Nordstroms, via online retailer Nordstrom Rack. When she contacted both companies, Marshalls said they would stop selling the merchandise while Nordstroms said they were sold out and would not restock. However, if she wanted to pursue payment for her copyrighted work, she was told she would have to go after the supplier, a company called Bella M Inc., based in Los Angeles, and marketing under brand name Vanilla Sugar. Her story was publicized by a CBC “Go Public” report. She had turned to the program for help in tracking down the L.A. supplier, which had as many as eight different company names and thirteen different addresses. Continue reading “The Artist as Underdog”
It was inevitable. Sooner or later an infringement notice would arrive in the inbox of someone’s granny accusing her of illegally downloading an online warfare video game/hip hop music video/22nd Century rogue robot movie (take your pick). In this case it was the warfare game, a game which our grandmother had never heard of and would have no reason to download. In May of 2016, eighty-six year old Christine McMillan reportedly received such a notice for downloading Metro 2033, an “apocalyptic first person shooter” video. The notices, which came into effect in 2015 as part of revisions to Canada’s copyright act in 2012, are based on notification by content owners (rights holders) to ISPs of IP addresses identified as engaging in infringing behaviour. By law, the ISPs are required to forward the notice to the registered user of the IP address in question, drawing the alleged infringement to the subscriber’s attention. The purpose of the notices is to raise awareness about piracy, to educate consumers and to dissuade them from continuing infringing behaviour. It is commonly known as the “notice and notice” system, after the fact that the rights holder issues a notice to the ISP and the ISP then passes on that notice to the subscriber.
Without doubt most if not all infringement notices are accurate in terms of identifying where the infringing behaviour is taking place, but given the complexities of the internet one can never be sure which individual is actually engaging in the proscribed activity. In the case of our shocked grandmother, it is always possible that someone else had access to her computer at times, or perhaps an error was made in identifying the ISP address (just one digit can make a big difference), or maybe her wireless network was not secure and someone in the neighbourhood was poaching on her account. While there are many explanations for the occasional mistaken notice, when something like this goes wrong it feeds public perceptions that rights holders are persecuting “innocent” consumers. The media is quick to pounce. “It feels like blackmail” scream the headlines, detailing stories of “traumatized” students and others receiving notices demanding payment for illegal downloads.
The problems stem not just from potential errors in identifying the actual infringer, but largely from companies engaged by some rights holders to seek payment from alleged infringers, even though the “notice and notice” regime makes no provision for levying fines or requiring payment. The Government of Canada website set up to explain the process is very clear;
“The Notice and Notice regime does not impose any obligations on a subscriber who receives a notice and it does not require the subscriber to contact the copyright owner or the intermediary”.
There is provision under the law for sanctions, with a maximum liability of $5000 for all non-commercial infringements. Such an infringement would have to be pursued in a court of law, however, with a judicial determination as to the amount of penalty. This is unlikely to happen except in extreme cases.
What has attracted public attention is the inclusion of “settlement notices” issued by the collection companies which are attached to some notifications of infringement. This is what happened in the case of Christine McMillan. Typically these notices draw the attention of the recipient to the alleged infraction, and invite them to contact the representative of the rights holder to discuss a settlement. Depending on your point of view, this has been construed as stretching the law to frighten recipients into self-identifying and to coerce them into reaching a settlement, or as an effective means to combat piracy, as claimed by some of the firms sending the settlement letters. The “effectiveness argument” is based on the principle of making consumers aware that there is a cost to infringement while offering them a simple and relatively inexpensive way of settling without litigation. In Australia there has been talk of pursuing a “traffic fine” approach to get the message through to consumers accessing infringing content that there is a price to be paid for ignoring the law. Interestingly, the collected funds will be used for consumer education about piracy.
Like the half-full or empty glass, much depends on one’s perspective and how the message is sent and received when dealing with matters such as personal infringing behaviour. It is a delicate balancing act to make consumers aware that there is a potential cost to piracy, while not alienating the public and potentially painting the content industry as bullies harassing vulnerable parties, such as grandmothers. What is the right mix of carrot and stick, and to whom should the stick be applied? There are no easy answers, but too much stick applied to the wrong parties can be counter-productive, as was amply demonstrated by the lawsuits launched by some content owners in the early 2000s.
The focus of the Canadian “notice and notice” regime is on consumer awareness, education and dissuasion rather than punishment. To reinforce this message, the Motion Picture Association-Canada has put up the website “Respect Copyright in Canada” explaining the purpose of the “notice and notice” regime and offering clear and useful guidance to consumers regarding what to do if they receive an infringement notice. The most important message of course is, “stop illegal downloading” and then “take steps to secure your Internet account”. The website also makes it clear that if the alleged behavior stops, no additional notices will be sent. To supplement this warning system is another very useful website, “Where to Watch in Canada”, which guides consumers to legitimate online sources of movies and TV content in Canada.
Online piracy is an important issue, in Canada as elsewhere. Repeated infringers who express disdain for the law and who see nothing wrong in appropriating content without payment may be beyond the scope of education, and in such cases there may be a place for some form of penalty. However, I still believe that most consumers, if made aware of the consequences of infringement both for themselves and for the artists and industries that create the content they enjoy, and if pointed to easily accessible sources of legitimate content, will avoid the pirate websites. There can be legitimate debate about the best ways to deal with online piracy, and there are a number of methods that have proven effective—but picking on granny is surely not one of them!
It has been an “interesting” year for copyright down under in Australia; “interesting” in the sense of challenging and troublesome, but also with some glimmers of light and hope. It was the year in which the Productivity Commission brought out its destructive anti-copyright report, advocating a regime that if implemented as recommended by the Commission would undermine the foundations of creativity in Australia, but was also the year that saw the first successful application of Australia’s new site-blocking law. It was a year in which the creative community mobilized to explain why the seductively simplistic push for Australia to adopt a US-style “fair use” regime would not support artistic endeavour, and when the film industry determined to fight back against widespread online piracy through a five-point strategy led by Australian studio Village Roadshow. Continue reading “Copyright Down Under: The Year that Was, in the Land of “Oz””
At this time of year it is appropriate to blog on a seasonal theme. Copyright and Christmas. Now that has a nice ring to it—but how are the two connected? Perhaps I could blog on the need for only legitimate copyrighted goods to be found in Christmas stockings hung by the chimney with care, or the need to avoid any gifts with pirate themes under the tree? That’s a bit of a stretch. But wait—(as the TV commercials say)–what about this copyright story? The estate of Theodor S. Geisel (aka Dr. Seuss) has brought suit against comic book publisher ComicMix for copyright (and trademark) infringement over the publication of a book called “Oh, the Places You’ll Boldly Go” which the estate alleges infringes the copyright of the 1990 Dr. Seuss book, “Oh, the Places You’ll Go”. The defendants are claiming a parody “fair use” defence; ComicMix work apparently attempts “to merge the stylings of Dr. Seuss with that of Star Trek”(!). Continue reading “The Pirates Who Stole Christmas”
This sounds like a simple and straightforward question to which most people at first blush would instinctively say yes. However that question is the subject of an important case currently being heard by the Supreme Court of Canada. In Google Inc v Equustek Solutions, the Court is hearing an appeal by Google of a ruling by the Supreme Court in British Columbia (B.C.), upheld on appeal in the B.C. Court of Appeal, that issued an interim injunction requiring Google to de-index or delist (i.e. not return search results for) the website of a firm (Datalink Gateways) that was marketing goods online based on the theft of trade secrets from Equustek, a Vancouver, B.C., based hi-tech firm that makes sophisticated industrial equipment. Google wants to quash a decision by the lower courts on several grounds, primarily that the basis of the injunction is extra-territorial in nature and that if Google were to be subject to Canadian law in this case, this could open a Pandora’s box of rulings from other jurisdictions that would require global delisting of websites thus interfering with freedom of expression online, and in effect “break the Internet”. Google’s position is specious and contradictory, and I will explain why I think so below. Continue reading “Should Google Search be subject to the Rule of Law? Absolutely! (Google v Equustek)”
What do Alanis Morissette, Margaret Atwood, Bryan Adams, Marie Claire Blais, Michael Bublé, Sharon Pollock, Gordon Lightfoot and William Deverell have in common? Yes, they are all Canadian (eh?) But more important they are all signatories to a letter, now numbering over 1300 musicians, authors, songwriters, poets, composers, actors and other cultural creators, co-sponsored by Music Canada and the Writer’s Union of Canada and supported by The Canadian Independent Music Association (CIMA), The League of Canadian Poets, The Canadian Music Publishers Association, The Playwrights Guild of Canada, The Canadian Country Music Association and Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC), to Canada’s Minister of Canadian Heritage, Mélanie Joly. That is a pretty impressive array of cultural firepower. Continue reading “The “Focus on Creators” Campaign in Canada”
For all intents and purposes the Trans-Pacific Partnership (TPP) is dead—or at the very least it will be in a state of suspended animation for a considerable period to come— given that President-elect Trump has announced that he will initiate the process to have the US withdraw from the Agreement on Day 1 of his Presidency. And that will end the TPP as we know it because of the Agreement’s terms; it will come into effect two years after signature (which took place in February of 2016) provided that at least six of the twelve countries representing 85% of the total GDP of the partners ratify and bring it into force. Between them the US and Japan represent about 80% of the GDP total (US-62%) so in effect this gives both countries a veto, with the US alone being able to prevent the deal from coming into effect. It has been argued that if the Agreement isn’t implemented that it doesn’t die, but rather just sits on the shelf. Technically that is true, and under a future US Administration it could be dusted off and revived if all parties agreed, but by the time that happens it will be a different world and considerable renegotiation will be needed. Continue reading “The Demise of the TPP and its Impact on Copyright”
The Chairman of China’s Dalian Wanda Group, Wang Jianlin, has made no secret of his ambition to buy a major Hollywood studio. Horrors! What next? Will we have China controlling the green-lighting of Hollywood films? What will happen to the inscrutable karate-chopping Oriental bad guys? (Who will play the role of heavies?) No more films on Tibet? If all that sounds like a stretch, consider this. Eighteen members of the US Congress have raised concerns about investment in Hollywood by Dalian Wanda, a major Chinese conglomerate that has already acquired AMC Cinemas and Legendary Pictures. Continue reading “If Wanda buys a major Hollywood studio, will we all be brainwashed by Chinese propaganda?”