Last week Michael Geist published a blog post summarizing his remarks to Industry Minister Moore as to why the almost universal criticisms of Canada’s anti-spam/malware law CASL are unfounded. He suggested it is intense lobbying by “squeaky wheels” with “knee jerk” “greatly exaggerated” and “Festivus” grievances about CASL” that has delayed bringing the law into effect”. He acknowledges that CASL creates new compliance obligations but suggests they are not onerous and even standard internationally (when referring to “opt-in” for spam) and that there is not much more to CASL than “a simple proposition – obtain customer consent and you can do pretty much whatever you like.”
Archive for the ‘Geist’ category
Bill C-11, the Copyright Modernization Act, with a few exceptions, is now law with the publication of the Governor General Order in Council. The fourth attempt to amend the Copyright Act since 2005 succeeded where Bills C-60 (2005), C-61 (2008), and C-32 (2010) did not.
A lot has changed since 2005 when Bill C-60 was first introduced. That Bill would have made a limited, but important, set of amendments. Its summary reminds us that it would have amended the “Copyright Act to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, to clarify the liability of network service providers, to facilitate technology-enhanced learning and interlibrary loans, and to update certain other provisions of the Act.” Bill C-11 addresses far more than this.
My mother warned me to be suspicious when people give gratuitous compliments. So, I read with some suspicion the recent blog post by Ariel Katz, who responded to my post Did the Supreme Court eviscerate Access Copyright’s business model? A reply to Michael Geist, generously calling me a “well experienced lawyer” and a “smart well-trained lawyer”.[]
In that post I argued that Michael Geist’s claim that the Supreme Court’s decision eviscerated Access Copyright’s business model did not stand up to scrutiny. I pointed out that his assertions completely ignored the teachings of the Supreme Court that whether something is a fair dealing is a question of fact and that his claims were not based on any analysis to demonstrate why the Supreme Court decision had the effects he claimed.
In a series of recent blogs Michael Geist claims that the decisions of the Supreme Court in the SOCAN v. Bell Canada, 2012 SCC 36 (SOCAN v Bell) and Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (Access Copyright) cases eviscerated Access Copyright’s business model. He asserts that the cases make all copying that would be subject to a license from Access Copyright fair dealings. Moreover, he claims that publishers would not suffer significant economic harm if all copying permitted under Access Copyright licenses or model licenses were fair dealings and no educational institution, whether elementary, secondary, or post-secondary, paid a penny for all such uses.
In 2006, the highly regarded economics professor Prof. Liebowitz, Director of the Center for Economic Analysis of Property Rights and Innovation at University of Texas, surveyed the entire field of econometric studies on file sharing. On the basis of his comprehensive review (which displayed a remarkable consensus on the issue), he concluded that “file-sharing has brought significant harm to the recording industry”. Prior to that in a comprehensive article published in 2005 Prof. Liebowitz criticized the theory that unlicensed file sharing helps copyright owners. He said those that professed this view saw “gains from copying in every nook and cranny of the economy, when in reality the instances of such gains are likely to be rather limited.”
The following are my opening remarks to the Senate Committee studying Bill C-11 earlier today. The link to the webcast can be found here.
I would like to thank the committee for inviting me to appear today to provide input on Bill C-11.
Before starting my remarks, I would like to give you some background about myself.
- I am a senior partner with the law firm McCarthy Tétrault.
- I am an adjunct professor at Osgoode Hall Law School where I teach IP law.
- I am the author of 5 books including the leading 6 volume treatise on Computer, Internet and E-Commerce Law.
With Bill C-11, the Copyright Modernization Act, on its way to clause by clause review Canadians have a chance to think about what values they want copyright to reflect. Canadians are being bombarded with a dizzying array of information about amendments that have been proposed including amendments related to enablement, statutory damages, TPMs and fair dealing. Much of the information is inaccurate and emotionally super-charged to garner as much visceral reaction as possible. A significant portion of it originates from Internet activist Michael Geist and is repeated throughout the blogosphere and in the traditional news media, usually with no attempt at analysis.
This blog post is a longer version of the article entitled This Bill is no SOPA published in the Financial Post today.
While recent attempts by the usual suspects making hysterical predictions about copyright reform in Canada have been ratcheted up yet again, this time the claims are so outrageous that they can perhaps best be described as having “jumped the shark”. Canadians are being told that Bill C-11, an act to amend Canada’s outdated copyright law, could be used to shut down popular web sites like YouTube, fundamentally change the Internet, sabotage online freedoms, and hog-tie innovators.
Last Thursday the Government of Canada introduced into the House of Commons Bill C-11, an Act to Amend the Copyright Act. In a press release describing the Bill, Heritage Minister James Moore and Industry Minister Christian Paradis, stated that the Bill will ensure that Canada’s copyright laws “are modern, flexible, and in line with current international standards” and will “protect and help create jobs, promote innovation, and attract new investment to Canada.”
Michael Geist’s recent blog post “The PlayBook Tax: Why the Conservative’s Copyright Plans Create a Hidden Cost for RIM’s PlayBook” makes the claim that “the Conservative plan for copyright reform (as found in Bill C-32) establishes a significant barrier that could force many consumers to pay hundreds in additional costs in order to switch their content from existing devices” to RIM’s BlackBerry PlayBook. He calls this a “PlayBook tax” and claims switching costs apply to “any digital content with a digital lock”.