[ga] Re: [Politech] Michael Geist critiques Canadian copyright law proposal [ip]

[Jeff Williams <jwkckid1@xxxxxxxxxxxxx>]

Eric and all former DNSO GA members or other interested
stakeholders/users,

  Given that the ICANN IP constituency and business constituency as
a questionably representative part of the GNSO structure, extra legal
and therefor poor TM and patent regulations have been put forward
and some excepted, have created a mess that will take years to
clean up.

Hugh Dierker wrote:

>    This is good as far as it goes.  The problem is that it does not go
> far enough. A step back in time and we see the pre-industrial
> revolution reasoning for trademark, copyright and patent laws.  It was
> to give enough security to provide economic motivation for creators in
> order to foster ingenuity. I do not see that as occuring today.  While
> large Pharmeceuticals and IT firms should be sowewhat protected in
> order to get stockholders to invest in r&r this race to the land
> office mentality and process should stop.
> A full revamping of the system must come about for the benefit of the
> consumer and to reinvigorate creativity and invention on an individual
> basis.
> With war chests for lawyers and lobbying campaigns creativity for
> profit is futile for the individual against the megacorps. It is an
> average of $50,000USD to defend a cybersquatting suit.
> Ingenuity is lost in favor of balance sheet certainty for those that
> file first.
> With regards educational copyright infringment, that is laughable.
> What Idiot would defend his rights to his detriment. Teach from a
> writers' text to a generation of students and that writer becomes
> popular and prospers. I was introduced to Edward Abby in college and
> later bought and read all his books. I don't recall excerpts from
> Hemmingway being objected to in English classes. And yet I bought and
> read all his writings.
>
> As for trademarks and Patent quality, the only group harmed by this
> are makers of superior products and mankind is not so stupid. While
> visiting a market in a heretofor notorious pirating country one sales
> boy in a market place had fake "Ralph Lauren" shirts for sale but was
> so proud to show me his real one. We all know the difference in
> quality and immitation should be considered flattery.
>
> Trying as courts may to fit a dinosaur into a hybred cattle ranch just
> does not work. The Intellectual property laws are antiquated and
> feeble to todays market place. A far superior document called our
> constitutions should take precedence.
>
> Sincerely,
> Eric
>
> Jeff Williams <jwkckid1@xxxxxxxxxxxxx> wrote:
> Declan, Michael and all,
>
> Well done here Michael! I could not agree more.
>
> Declan McCullagh wrote:
>
> > -------- Original Message --------
> > Subject: Canadian copyright reform proposal threatens educational
> Internet
> > Date: Mon, 31 May 2004 07:32:12 -0400
> > From: Michael Geist
> > To: Declan McCullagh
> > References: <40B74A9B.7010305@xxxxxxxx>
> >
> > Declan,
> >
> > Of possible interest to you and your subscribers -- my latest
> Toronto
> > Star Law Bytes column assesses the consequences of a recent Canadian
>
> > parliamentary committee report on copyright reform. The report
> > recommends swift ratification of the WIPO treaties, increased
> > potential liability for ISPs, and the prospect for a new extended
> > license to cover Internet-based materials in education.
> >
> > The column argues that the report largely neglects the user side of
> > the copyright balance equation by focusing chiefly on the
> > compensation and protection afforded to creators. Further, it
> laments
> > the recommendation of a highly restrictive definition of publicly
> > available work on the Internet, which if adopted will prove costly
> > for Canada's education system. The latter development is
> > particularly unfortunate given the Supreme Court of Canada's recent
> > decision on the need for a broad and liberal interpretation to
> > exceptions that lie at the heart of education such as research and
> > private study.
> >
> > Column at [Toronto Star]
> >
> > Report at
> >
> >
> > Best,
> >
> > MG
> >
> > Will copyright reform chill use of Web?
> > Copyright proposal upsets the balance
> >
> > MICHAEL GEIST
> > LAW BYTES
> >
> > In hindsight, the fall of 1998 may be remembered as the shining hour
>
> > of Canadian Internet policy development. Led by then-Industry
> > Minister John Manley, Canada played host to an OECD ministerial
> > meeting on e-commerce, tabled new privacy legislation, unveiled
> > several e-commerce policy initiatives, and committed to providing
> > every Canadian school with Internet access.
> >
> > Unfortunately, our low point may have occurred earlier this month
> > when a Canadian Heritage parliamentary committee chaired by
> > Toronto-area MP Sarmite Bulte presented a vision of copyright that
> > would transform the Internet from the incredible open source of
> > information that it is into a predominantly commercial medium
> > available primarily to those willing to open up their cheque books.
> >
> > It foresees, among other things, schools being required to pay for
> > using, as course materials, Web-based information that is made
> > publicly available - often with the poster's intention of reaching
> as
> > wide an audience as possible and with no expectation of payment.
> >
> > Few technology law issues have proven as divisive in recent years as
>
> > copyright reform. Proponents of stronger protections fear that the
> > Internet and digital technologies will eviscerate traditional
> > copyright protections. They have therefore actively lobbied for new
> > powers to block unauthorized access to copyrighted material as well
> > as for new compensation schemes to pay for new technological uses of
>
> > old work.
> >
> > Opponents of stronger protection, pointing to the recent Supreme
> > Court of Canada decision involving legal publications, argue that
> > Canadian copyright law must adopt a balanced approach in which the
> > interests of creators are considered in parallel with the needs of
> > users and the larger public interest.
> >
> > The unexpected consequences of copyright reform in other
> > jurisdictions - such things as jailed software developers and
> > copyright litigation over technologies such as garage door openers -
>
> > have led opponents to argue that Canada must navigate a balanced
> > approach that avoids the mistakes made elsewhere.
> >
> > While the notion of balance in copyright law has proven contentious
> > in some quarters, it is in fact a well-established principle under
> > Canadian intellectual property law. For example, under Canadian
> > patent law, inventors receive a limited monopoly over their
> invention
> > that grants them exclusive authority over how that invention is
> used.
> >
> > In return, the patent expires after a prescribed period at which
> time
> > anyone may use the invention without prior authorization. Moreover,
> > obtaining patent protection also requires inventors to fully
> disclose
> > and describe their invention so that the public obtains the
> immediate
> > benefit of that knowledge.
> >
> > The Canadian Supreme Court has affirmed a similar balance in
> > copyright. Creators enjoy a basket of exclusive rights such as the
> > sole right to reproduce or perform the work. In return, the term of
> > copyright protection is limited so that expired work becomes part of
>
> > the public domain and may be used by anyone without permission or
> > payment. Furthermore, the Copyright Act establishes a series of
> > "user rights," known as exceptions, that allow users to freely use
> > portions of copyrighted work for such things as research, private
> > study, news reporting, and criticism. While Bulte recently expressed
>
> > concern that these exceptions lead to "freebies," in fact it is
> these
> > exceptions that ensure that the Copyright Act retains the balance
> > needed to give creators their exclusive rights.
> >
> > Bulte's committee held hearings for several weeks in March and
> April,
> > quickly generating nine key copyright reform recommendations, made
> in
> > a pre-election interim report. The plan, whose status may be
> affected
> > by the election, largely neglects the user side of the balance
> > equation by focusing chiefly on the compensation and protection
> > afforded to creators.
> >
> > The committee's recommendation for swift ratification of the
> > controversial World Intellectual Property Organization's Internet
> > treaties and increased liability for Internet service providers will
>
> > rightly garner much attention. It is its approach to educational
> uses
> > of the Internet, however, that are a particular cause for concern
> > given the current financial strain on our schools.
> >
> > Canada's Copyright Act already provides educators and students with
> a
> > user right in copyrighted work for research and study purposes. The
> > Supreme Court has ruled that this right is to be interpreted in a
> > liberal fashion such that copying full articles may be lawful in
> > certain circumstances. The use of those works in the classroom is
> not
> > covered, however, forcing teachers to sort through the rights
> > attached to materials before using them in courses.
> >
> > The Canadian educational community has proposed what would appear to
>
> > be a balanced solution in the form of establishing a limited
> > educational user right to publicly available work on the Internet.
> In
> > keeping with longstanding and widely accepted practices on the
> > Internet, publicly available work would include materials that are
> > not technologically or password protected - that is, information the
>
> > author would appear to want to make widely available.
> >
> > Bulte's committee surprisingly rejected the education community's
> > proposal, opting instead for a new license to cover Internet based
> > works. This new license would require schools to pay yet another fee
>
> > (the education community already hands over millions in license fees
>
> > each year for content) for works found on the Internet. How the
> > payments are calculated, collected and forwarded to those entitled
> to
> > receive them presents another set of problems that would have to be
> > resolved in a manner that assures all stakeholders that payments are
>
> > not made for work that the Supreme Court has already declared
> subject
> > to a user right and therefore available without compensation.
> >
> > Although it acknowledges that some work on the Internet is intended
> > to be freely available, the committee recommends the adoption of the
>
> > narrowest possible definition of publicly available. Its vision of
> > publicly-available includes only those works that are not
> > technologically or password protected and contain an explicit notice
>
> > that the material can be used without prior payment or permission.
> >
> > Rather than adopting an approach that facilitates the use of the
> > Internet, Bulte's committee has called for the creation of a
> > restrictive regime in which nothing is allowed unless expressly
> > permitted. The result will be an Internet in which schools will be
> > required to pay to use Internet materials contrary to the
> > expectations of many creators.
> >
> > A far more balanced approach, and one that would be more in line
> with
> > Canadian values, would be to permit all uses unless specifically
> > prohibited. This could be easily achieved in a manner that respects
> > copyright by establishing a publicly available definition that
> > includes works not technologically or password protected and for
> > which the copyright holder has not expressly asserted limitations on
>
> > the use of the work.
> >
> > Canada displayed foresight in the late 1990s in identifying the
> > potential for the Internet and new digital technologies to benefit
> > all Canadians. In order to fulfill that vision, we need to
> reconsider
> > the Bulte committee's recent recommendation so that the balance that
>
> > is so critical to creators, users, and the broader public interest
> is
> > preserved.
> >
> > --
> >
> **********************************************************************
>
> > Professor Michael A. Geist
> > Canada Research Chair in Internet and E-commerce Law
> > University of Ottawa Law School, Common Law Section
> > Technology Counsel, Osler, Hoskin & Harcourt LLP
> > 57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
> > Tel: 613-562-5800, x3319 Fax: 613-562-5124
> > mgeist@xxxxxxxxx http://www.michaelgeist.ca
> >
> > _______________________________________________
> > Politech mailing list
> > Archived at http://www.politechbot.com/
> > Moderated by Declan McCullagh (http://www.mccullagh.org/)
>
> Regards,
>
> --
> Jeffrey A. Williams
> Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
>
> "Be precise in the use of words and expect precision from others" -
> Pierre Abelard
>
> "If the probability be called P; the injury, L; and the burden, B;
> liability depends upon whether B is less than L multiplied by
> P: i.e., whether B is less than PL."
> United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
> ===============================================================
> Updated 1/26/04
> CSO/DIR. Internet Network Eng. SR. Eng. Network data security
> IDNS. div. of Information Network Eng. INEG. INC.
> E-Mail jwkckid1@xxxxxxxxxxxxx
> Registered Email addr with the USPS
> Contact Number: 214-244-4827
>
>
>
>
>

Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
"Be precise in the use of words and expect precision from others" -
    Pierre Abelard

"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing  (159 F.2d 169 [2d Cir. 1947]
===============================================================
Updated 1/26/04
CSO/DIR. Internet Network Eng. SR. Eng. Network data security
IDNS. div. of Information Network Eng.  INEG. INC.
E-Mail jwkckid1@xxxxxxxxxxxxx
 Registered Email addr with the USPS
Contact Number: 214-244-4827