Author: Michael Geist

Canadian Copyright, OA, and OER: Why the Open Access Road Still Leads Back to Copyright

Reposted from michaelgeist.ca, Link (CC-BY) It is open access week and this year I had the honour of delivering the keynote address at a terrific open access event co-sponsored by the Ryerson University Library and Archives and the University of Toronto Libraries. My talk – which can be viewed in full here or from the embed below – starts with a review of the remarkable success of open access over the past 15 years, but quickly shifts toward the continuing connection between balanced copyright and open access. I focus on emerging challenges for open access such as the enclosure efforts by publishers, which has led to a growing number of takedowns and the use of digital rights management to lock down publications. With the Canadian Copyright Act review slated to commence shortly, I emphasize the connection between open access, open educational resources and copyright, with some of the key issues involving term extension, notice-and-notice, statutory damages, and fair dealing. The fair dealing discussion attracted considerable attention as it included new data that demonstrates how educational spending on copyrighted works has increased significantly since the 2012 Supreme Court of Canada decisions and copyright reforms. While critics point to the decline in Access Copyright licensing revenues, data from Canadian universities conclusively shows that this represents a shift (not a decline) in spending, with more dollars are being spent on licensing as schools invest heavily in access that can...

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Canada’s NAFTA IP and E-commerce Priorities: My Appearance Before the Standing Committee on International Trade

[Originally posted on michaelgeist.ca, Link (CC-BY)] The House of Commons Standing Committee on International Trade has been conducting hearings on the NAFTA negotiations. I appeared before the committee yesterday on a panel that included the dairy industry, food and beverage sector, and my comments on IP and e-commerce. The MPs showed considerable interest in both IP and e-commerce, asking questions about notice-and-notice, fair use, copyright balance, the public domain, and the privacy implications of the e-commerce chapter. My opening remarks are posted below. Appearance before the House of Commons Standing Committee on International Trade, September 18, 2017 Good afternoon. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I appear today in a personal capacity representing only my own views. There is much to say about NAFTA – I have written numerous articles and posts on the agreement – but I have limited time so I’ll focus on the intellectual property chapter with a brief additional comment on the e-commerce chapter. While Canada is accustomed to “playing defence” to U.S. intellectual property demands in trade talks, this round of renegotiation offers the chance to pro-actively ensure that Canadian IP priorities and policies are reflected in the agreement. To place the IP issue in context, over the past five years, Canada has implemented anti-circumvention...

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Global Internet Takedown Orders Come to Canada: Supreme Court Upholds International Removal of Google Search Results

[Reposted from MichaelGeist.ca, Link (CC-BY)] The Supreme Court of Canada released its much-anticipated Google v. Equustek decision today, upholding the validity of an injunction requiring Google to remove search results on an international basis.  The 7-2 decision (Justices Côté and Rowe dissented, finding that there were alternatives available, the order is ineffective, and expressing concern that the “temporary” injunction was effectively permanent) is not a surprise – last week’s Facebook’s decision suggested a willingness to side with the weaker Canadian litigant against Internet giants – but the decision will ultimately grant Google more power, not less. Google will obviously abide the ruling, but as I noted last year, what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow. The Supreme Court of Canada did not address the broader implications of the decision, content to limit its reasoning to the need to address the harm being sustained by a Canadian company, the limited harm or burden to Google, and the ease with which potential conflicts could...

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U.S. Lobby Groups Take Aim At Canadian Copyright Law in NAFTA Comments: No Balance, No Fair Use, & No Cultural Exception

[Reposted from michaelgeist.ca, Link (CC-BY)] The U.S. just completed its consultation on negotiating objectives in the upcoming NAFTA re-negotiations (the Canadian consultation is open until July 18, 2017). There are well over a thousand comments, but a review of the lobby groups who pay attention to copyright reveals that they hope to use the talks to make significant changes to Canadian copyright law. This was expected – I touched on the trade dimension of domestic reforms in my recent Policy Options piece on the 2017 copyright review – but the extent to which many groups want to toss aside foundational elements of Canadian copyright law may still surprise. For example, the Copyright Alliance, which represents a wide array of lobby group associations and Hollywood type interests, rejects the inclusion of balance as an objective in copyright law. It notes that the TPP included a balance provision and warns against something similar in NAFTA. Ironically, the TPP provision was non-enforceable, stating only: Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print...

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Why Copyright Law Poses a Barrier to Canada’s Artificial Intelligence Ambitions

[michaelgeist.ca, Link (CC-BY)] The federal government placed a big bet in this year’s budget on Canada becoming a world leader in artificial intelligence (AI), investing millions of dollars on a national strategy to support research and commercialization. The hope is that by attracting high-profile talent and significant corporate support, the government can turn a strong AI research record into an economic powerhouse. Funding and personnel have been the top policy priorities, yet other barriers to success remain. For example, Canada’s restrictive copyright rules may hamper the ability of companies and researchers to test and ultimately bring new AI services to market. What does copyright have to do with AI? My Globe and Mail column notes that making machines smart – whether engaging in automated translation, big data analytics, or new search capabilities – is dependent upon the data being fed into the system. Machines learn by scanning, reading, listening or viewing human created works. The better the inputs, the better the output and the reduced likelihood that results may be biased or inaccurate. Copyright law crops up because restrictive rules may limit the data sets that can used for machine learning purposes, resulting in fewer pictures to scan, videos to watch or text to analyze. Given the absence of a clear rule to permit machine learning in Canadian copyright law (often called a text and data mining exception), our...

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Scare Tactics Down Under: The Ongoing Global Effort to Mislead on Canadian Copyright

[Originally posted on MichaelGeist.ca, (CC-BY) Link] Last month, I traveled to Australia and New Zealand as part of a group of experts to discuss copyright fair use and fair dealing. The trip included several public talks, meetings with government officials, a book launch on Reimagining Copyright, and the chance to discuss copyright policy directly with publishers, educators, and librarians. Videos of some of the panels are available online, including a New Zealand forum on copyright and innovation and a panel on comparative copyright limitations and exceptions at the Australian Digital Alliance annual conference. Among the most notable aspects of the trip was the revelation of efforts by publishers and copyright collectives to mislead policy makers on the state of copyright law in Canada. While not everyone is buying it – this keynote from the Australian Productivity Commission’s Deputy Chair Karen Chester was a mic drop moment that eviscerated the publisher arguments against fair use – the efforts to mislead on the impact of Canadian copyright reform was unmistakable. For example, at one event with many publishers in the audience, I was approached by one representative who told me she was embarrassed by what her company had submitted to the Australian policy process after learning about the reality of the situation in Canada. Similarly, another Australian publisher executive who had spent years with one of Canada’s largest educational publishers, openly...

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Why Copyright Reform Won’t Solve the Troubles Faced By the Newspaper Industry

[michaelgeist.ca, Link (CC-BY)] Last week, I appeared before the Standing Committee on Canadian Heritage as part of its study on the future of media. The committee has heard from dozens of witnesses and one of the surprising themes has been the emphasis on copyright reform as a potential solution to the newspaper industry’s woes. My opening remarks, which are posted below, warn against the reforms, including the prospect of new taxes on Internet services or linking as a source of revenue for the industry. Instead, I point to several potential policies including an ad-free online CBC, sales taxes for digital services, and non-profit funding models for investigative journalism. The Q & A that followed with me focused primarily on copyright law. The copyright discussion stems from the fact that several earlier witnesses implausibly claimed that it would help solve the problems facing news organizations. For example, Bob Cox of the Canadian Newspaper Association told the committee: we need updated copyright laws to protect original work. Papers invest heavily in original journalism, which is then shared, reused, and rewritten by others, often for commercial gain, because the two-decades-old fair dealing law does not take into account the ease of digital reproduction. If newspapers were compensated for their original content and the investment was protected for longer, it would be a significant boost to our revenues. Duff Jamison of the Alberta...

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Fictional Claims: Why Kids Are Not Suffering With Canada’s Copyright Fair Dealing Rules

[Reposted from michaelgeist.ca, Link (CC-BY)] In recent weeks, there has been some media coverage claiming that Canadian educational materials are disappearing in the face of copyright fair dealing rules. For example, several weeks ago, Globe and Mail writer Kate Taylor wrote a column on copyright featuring the incendiary headline that “Kids Will Suffer if Canada’s Copyright Legislation Doesn’t Change.” This week, the CBC provided coverage of a writer’s conference panel with a piece titled “Copyright-free material edging out Canadian texts” that speaks of sales falling off a cliff. These articles are the latest shots in the battle launched by Canadian publisher and writer groups against fair dealing. The campaign includes regular meetings with Members of Parliament from all parties (speak to almost any MP and they will tell you that they have heard horror stories about Canadian copyright), international letter writing campaigns, and commissioned studies that feature unsubstantiated claims about the state of licensing revenues in Canada (the PWC study comes with the caveat that “we provide no opinion, attestation or other form of assurance with respect to the results of this Assessment”). While there have been some notable responses from people such as Meera Nair, many copyright watchers have remained largely silent, perhaps assuming that the reliance on false rhetoric will fail to find an audience. It is true that the claims have fallen flat with key independent...

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Copyright Board Ruling Strikes Fair Balance in Heated Education Fight

[Reposted from michaelgeist.ca, Link (CC-BY)] The role of copyright within the Canadian education system has emerged as a contentious issue in recent years as the Internet and digital technologies have transformed how schools provide students with access to materials. At the centre of the fight are a series of Supreme Court of Canada rulings that establish the boundaries of “fair dealing”,  which permits copying of reasonable portions of materials without the need for permission or further compensation. My weekly technology law column (Toronto Star version, homepage version) notes that last month, the Copyright Board of Canada issued a landmark decision on copying practices in primary and secondary schools, largely affirming the approach adopted by educational institutions. As a result, Access Copyright, the copyright collective that represents publishers and authors, will collect far less for in-school copying than it originally demanded. The reason for the reduction rests primarily on the emergence of fair dealing principles that emphasize the need for balance between creators’ and users’ rights. The copyright board’s fair dealing analysis found that 97.2 per cent of copying from books, 98.1 per cent from newspapers, and 98.5 per cent from periodicals qualified as fair. In other words, virtually all copying of books, newspapers, and periodicals in the large sample reviewed by the Board is covered by fair dealing and does not require a licence. In response to the decision,...

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Fairness Confirmed: Copyright Board Deals Another Blow to Access Copyright

[Posted on michaelgeist.ca, Link (CC-BY)] In the aftermath of the Supreme Court of Canada’s 2012 copyright pentalogy that strongly affirmed the importance of user’s rights and the need for a broad, liberal interpretation for fair dealing, Access Copyright insisted that the decisions did not mean what they said. While educational groups developed reasonable fair dealing guidelines based on the decisions (along with earlier decisions such as the CCH case and the inclusion of education within the fair dealing purposes in 2012 reforms), Access Copyright argued that the copying required its licence and that fair dealing guidelines based on general percentages could not be used. Last Friday, the Copyright Board of Canada issued its latest decision on the application of fair dealing to educational copying, providing yet another resounding blow to Access Copyright’s view of copyright. The Board created a tariff for copying in K-12 schools that was a fraction of what the copyright collective had wanted. It initially asked for $15 per full time student. By the time the issues had been fully assessed, the Board granted a tariff of $2.46 per student for 2010-2012 and $2.41 for 2013-2015. That rate is not only far lower than Access Copyright had demanded, but is nearly half of what was previously certified for the period from 2005-2009 (which was set at $4.81). The Board minced no words in explaining the reduction:...

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Official Release of TPP Text Confirms Massive Loss to Canadian Public Domain

[Reposted from michealgeist.ca, Link (CC-BY)] The New Zealand government posted the official Trans Pacific Partnership text today after years secret negotiations and occasional leaks of the text. It is an enormous deal with dozens of side letters between countries – Canada alone has eight side letters on intellectual property with seven TPP countries – that will require considerable study. From a copyright perspective, the TPP IP chapter leaked soon after the deal was concluded and the chapter looks largely consistent with that document. There is a notable change involving the Internet provider and host takedown rules, however. I earlier blogged that the chapter included a takedown provision not found in Canadian law that would have required blocking content based on being made aware of a court order finding infringement. I noted that the provision would have allowed decisions from other countries to effectively overrule Canadian law. The released text has been amended to limit the provision to domestic court rulings ensuring that only Canadian court rulings would apply. This is a positive change that better reflects current law. It does point to the danger of negotiating in secret, where potential concerns go unaddressed without the opportunity for expert review. Given the size of the deal, it seems likely that there will be many more instances of poorly drafted provisions that raise unintended consequences. Unchanged from the leaked text is...

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Why U.S. Pressure Is Behind the Stalled Canadian Anti-Counterfeiting Bill

[Reposted from michaelgeist.ca, Link (CC-BY)]  Last year, the federal government trumpeted anti-counterfeiting legislation as a key priority. The bill raced through the legislative process in the winter and following some minor modifications after committee hearings, seemed set to pass through the House of Commons. Yet after committee approval, the bill suddenly stalled with little movement throughout the spring. Why did a legislative priority with all-party approval seemingly grind to a halt? My weekly technology law column (Toronto Star version, homepage version) suggests that the answer appears to stem from the appointment of Bruce Heyman as the new U.S. ambassador to Canada. During his appointment process, Heyman identified intellectual property issues as a top priority and as part of his first major speech as ambassador, singled out perceived shortcomings in the anti-counterfeiting bill. Heyman’s primary concern relates to in-transit shipments, which involve goods that do not originate in Canada and are not destined to stay in Canada. The Canadian bill excludes in-transit shipments from the scope of new rules that grant customs agents unprecedented powers to seize suspect shipments without court oversight. According to Heyman: “We are pleased Canada has introduced legislation that will give its border officials the authority to seize pirated and counterfeit goods, but the United States is concerned because the bill does not apply to goods that are shipped through Canada, from a third country to...

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Canada – South Korea Trade Agreement Demonstrates Deals Possible Without Increasing IP Protections

[Post on michaelgeist.ca, Link, (CC-BY)]  Canada and South Korea announced agreement on a comprehensive trade agreement earlier today. The focus is understandably on tariff issues, but the agreement also contains a full chapter on intellectual property (note that the governments have only released summaries of the agreement, not the full text, which is still being drafted). The IP chapter is significant for what it does not include. Unlike many other trade deals – particularly those involving the U.S., European Union, and Australia – the Canada-South Korea deal is content to leave domestic intellectual property rules largely untouched. The approach is to reaffirm the importance of intellectual property and ensure that both countries meet their international obligations, but not to use trade agreements as a backdoor mechanism to increase IP protections. Yesterday I noted that Canada might be asked to increase the term of copyright protection given that South Korea had agreed to longer copyright terms in its recent agreements with the European Union, Australia, and the U.S. In fact, the U.S. agreement contains extensive additional side letters on Internet provider liability, enforcement, and online piracy.  The Canada – South Korea deal rejects that approach with copyright, trademark, patent, and enforcement rules that are all consistent with current Canadian law (plus the coming border measures provisions in Bill C-8). On copyright, the summary states the agreement: reflects Canada’s regime as...

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The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright

[Posted to michaelgeist.ca (CC-BY)(Link)]  Copyright cases typically only reach the Supreme Court of Canada once every few years, ensuring that each case is carefully parsed and analyzed. As readers of this blog know, on July 12, 2012, the Supreme Court issued rulings on five copyright cases in a single day, an unprecedented tally that shook the very foundations of copyright law in Canada.  In fact, with the decisions coming just weeks after the Canadian government passed long-awaited copyright reform legislation, Canadian copyright law experienced a seismic shift that will take years to sort out. I am delighted to report that this week the University of Ottawa Press published The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, an effort by many of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. The book is available for purchase and is also available as a free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually. This is the first of a new collection from the UOP on law, technology and society (I am pleased to serve as the collection editor) that will be part of the UOP’s open access collection. This book features fourteen articles on copyright written by independent scholars...

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Access Copyright’s Desperate Declaration of War Against Fair Dealing

[Posted to MichaelGeist.ca, (CC-BY)]  Months after the Supreme Court of Canada delivered a stinging defeat to Access Copyright by ruling for an expansive approach to fair dealing and the government passed copyright reforms that further expanded the scope of fair dealing, the copyright collective responded yesterday with what amounts to a desperate declaration of war against fair dealing. In the aftermath of the court decisions and legislative reforms, a consensus emerged within the Canadian education community on the scope of fair dealing. The fair dealing policies used guidance from the Supreme Court to establish clear limits on copying and eliminate claims that the law was now a free-for-all.  In developing those fair dealing policies, however, many institutions no longer saw much value in the Access Copyright licence. Access Copyright has decided to fight the law – along with governments, educational institutions, teachers, librarians, and taxpayers – on several fronts. It has filed for an interim tariff with the Copyright Board in an effort to stop K-12 schools from opting out of its licence and it has filed a proposed post-secondary tariff that would run well after most Canadian schools will have opted out of its licence. Most notably, it has filed a lawsuit against York University over its fair dealing guidelines, which are similar to those adopted by educational institutions across the country. While the lawsuit has yet to...

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ACTA Lives: How the EU & Canada Are Using CETA as Backdoor Mechanism To Revive ACTA

Reposted from michaelgeist.ca Last week, the European Parliament voted overwhelmingly to reject ACTA, striking a major blow to the hopes of supporters who envisioned a landmark agreement that would set a new standard for intellectual property rights enforcement. The European Commission, which negotiates trade deals such as ACTA on behalf of the European Union, has vowed to revive the badly damaged agreement. Its most high-profile move has been to ask the European Court of Justice to rule on ACTA’s compatibility with fundamental European freedoms with the hope that a favourable ruling could allow the European Parliament to reconsider the issue. While the court referral has attracted the lion share of attention, my weekly technology law column (Toronto Star version, homepage version) reports that there is an alternate secret strategy in which Canada plays a key role. According to recently leaked documents, the EU plans to use the Canada – EU Trade Agreement (CETA), which is nearing its final stages of negotiation, as a backdoor mechanism to implement the ACTA provisions. The CETA IP chapter has already attracted attention due to EU pharmaceutical patent demands that could add billions to provincial health care costs, but the bigger story may be that the same chapter features a near word-for-word replica of ACTA. According to the leaked document, dated February 2012, Canada and the EU have already agreed to incorporate many of...

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2nd Tier Status for Canada?: 5 Questions On Canada’s Entry to The Trans Pacific Partnership Talks

U.S. President Barack Obama is expected to announce today that Canada has been offered the chance to participate in the Trans Pacific Partnership negotiations. The offer will be described as big win for the Canadian government, yet reports indicate the conditions for entry may have been very steep. While much of the Canadian focus will be on supply management issues, the questions I would be asking include: 1.   According to Inside US Trade, the U.S. established two conditions for Canadian entry. First, Canada will not be able to reopen any chapters where agreement has already been reached among the current nine TPP partners. The problem with this is that Canada has agreed to this condition without actually gaining access to the current TPP text. Has Canada agreed to be bound by terms it has not even read? Can it disclose what it has effectively agreed to simply by accepting the offer to enter the negotiations? 2.   Inside US Trade also reports that Canada has second tier status in the negotiations as the U.S. has stipulated that Canada would not have “veto authority” over any chapter. This means that should the other nine countries agree on terms, Canada would be required to accept them. Has Canada agreed to this condition? How will it deal with the prospect that the other nine countries agree to terms that are disadvantageous to Canada?...

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