Michael Geist Blog

European Commission Responds To ACTA Questions

Michael Geist — Mon, 08 Feb 2010 09:10:09 +0100

The European Commission has posted a response to one of the many questions raised by members of the European Parliament about ACTA. The EC seeks to pacify the ACTA concerns by arguing that the treaty will be limited in scope and is targeted at commercial activities:

The Commission can inform the Honourable Member that the Anti-Counterfeiting Trade Agreement (ACTA) will be in line with the body of EU legislation, which fully respects fundamental rights and freedoms and civil liberties, such as the protection of personal data. This includes the Intellectual Property Rights' relevant aspects of the Telecoms package.

ACTA should not contain measures restricting end-users’ access to the internet that would not be appropriate, proportionate and necessary within a democratic society and without a prior, fair and impartial procedure.

It is the Commission's view that ACTA is about tackling large scale illegal activity, often pursued by criminal organisations, that is causing a devastating impact on growth and employment in Europe and may have serious risks to the health and safety of consumers. It is not about limiting civil liberties or harassing consumers.

NY Times on ACTA

Michael Geist — Mon, 08 Feb 2010 09:08:12 +0100

The New York Times has a feature story on ACTA today that includes comments from an EU official rejecting a single solution to Internet issues as well as comments from a Swedish official calling for the release of the draft text.

Concerns Mount Over British Digital Economy Bill

Michael Geist — Mon, 08 Feb 2010 09:06:41 +0100

The UK Digital Economy Bill is facing mounting criticism, as an influential group of MPs has expressed concern the bill may violate human rights.

Another MEP Raises ACTA Concerns

Michael Geist — Mon, 08 Feb 2010 09:05:21 +0100

Finnish Member of the European Parliament Heidi Hautala has added her voice to the concerns over ACTA, calling for greater transparency.

British Library To Offer 65,000 Free E-book Downloads

Michael Geist — Mon, 08 Feb 2010 09:03:57 +0100

The British Library plans to make more than 65,000 19th century works of fiction available as free downloads for the public this spring.

US, EU Defend ACTA Secrecy, UK Supports Transparency

Michael Geist — Fri, 05 Feb 2010 09:00:59 +0100

Faced with mounting criticism over ACTA secrecy, officials from both the U.S. and the EU are speaking out. In a letter to the editor at the Financial Times, the USTR's Stanford McCoy rejects the transparency concerns, claiming:

"Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement."

Meanwhile, an EU official told EurActiv.com that media reports have oversimplified ACTA and that information has been provided to the European Parliament "whenever possible." The EU official declined to be named due to a non-disclosure agreement.

On the other hand, UK Minister of State, Department for Business, Innovation and Skills David Lammy provided the House of Commons with his government's official position on ACTA secrecy:

It is current UK policy on the Anti-Counterfeiting Trade Agreement to seek the agreement of our negotiating partners to publish the draft text. However, it is the practice in trade negotiations that working documents are not disclosed without the consent of all the negotiating parties. Not all parties currently agree to the release of the Anti-Counterfeiting Trade Agreement (ACTA) draft text. My officials continue to press for greater transparency with our negotiating partners.

Not to be forgotten, Bridges Weekly reports on mounting concerns in the developing world over ACTA. While an official from the Chamber of Commerce argues that it is not desirable to address ACTA issues at WIPO, a developing country trade diplomat acknowledges that the developing world will face pressure to adopt ACTA-like provisions and that the process sounds like "TRIPs-plus-plus-plus."

Angus Launches ACTA Secrecy Facebook Group

Michael Geist — Fri, 05 Feb 2010 08:02:50 +0100

NDP MP Charlie Angus has launched a new Facebook group called ACTA: End the Secrecy.

Hints Of Deep Discord in Canada-EU Talks

Michael Geist — Fri, 05 Feb 2010 08:01:03 +0100

Troy Media reports on possible discord in the Canada - European Union trade talks over the intellectual property chapter.

Canadian Digital Music Sales Growth Beats The U.S. For the 4th Straight Year

Michael Geist — Thu, 04 Feb 2010 19:31:46 +0100

Nielsen Soundscan has just released the Canadian music sales figures for 2009. Notwithstanding the regular claims that the Canadian digital music market cannot develop without copyright reform, the Canadian market grew faster than the U.S. market for the fourth consecutive year. As the chart below demonstrates, digital music sales have grown faster in Canada than in the U.S. in every year since 2006:

Year	Canada	United States
2009	38%	8%
2008	58%	27%
2007	73%	45%
2006	122%	65%

While this does not suggest that the market is thriving - a down economy with more competition for the entertainment dollar it is a tough market - it does confirm yet again that attempts to link copyright reform to the development of a Canadian digital market are not borne out by the facts. Indeed, Canada has consistently grown faster than the United States (from an admittedly lower starting point given that digital music stores arrived later in Canada).

Moreover, as I pointed out last summer, the IFPI's global data further supports the conclusion that the Canadian digital music market is not the laggard that some would have the public believe. As of last year, Canada's digital market stood 7th worldwide, while ranking 6th for all recorded music - in other words, about what you would expect. Of the top 20 global markets for recorded music, the IFPI said that Canada ranked 5th for the percentage of digital sales.

Indeed, digital music sales as a percentage of total sales in Canada is ahead of every major European country. The U.S. may lead Canada (though growing at a far slower rate), but the IFPI reported that Canada is ahead of France, Britain, Spain, Belgium, Italy, Germany, Switzerland, the Netherlands, Austria, Sweden, Czech Republic, Finland, Greece, Hungary, Norway, Poland, Portugal, and Russia. Canada also leads countries such as Australia, New Zealand, Hong Kong, Singapore, Taiwan, Mexico, Argentina, Brazil, and South Africa. The global music market may be facing difficult times, but the industry's own data confirms that placing the blame on Canadian copyright laws is quite clearly misplaced.

Australia Says ACTA Talks Could Go Into 2011

Michael Geist — Thu, 04 Feb 2010 06:51:38 +0100

Building on earlier disclosures from Sweden and New Zealand, the Australian press is reporting that government officials say they oppose inclusion of three strikes in ACTA and confirm that talks on the secret copyright treaty could extend into 2011.

Washington Post: "ACTA Absurdity Continues"

Michael Geist — Thu, 04 Feb 2010 06:49:56 +0100

The Washington Post's Rob Pegoraro has a piece on ACTA, expressing concern about the secret copyright treaty and fears that things may get worse.

Copyright Reform Commitment Coming in Speech From the Throne?

Michael Geist — Thu, 04 Feb 2010 06:47:12 +0100

The National Post's John Ivison writes about the Conservatives' plan to borrow heavily from the 2008 Competition Policy Review Panel in the forthcoming Speech from the Throne. The panel report included recommendations for copyright reform, which focused on the need for balance in rewarding creators and stimulating competition and innovation.

UK Digital Economy Bill Dealt Blow as Minister Resigns

Michael Geist — Thu, 04 Feb 2010 06:45:48 +0100

The Guardian reports that the UK government's bid to push the digital economy bill through has been dealt another setback after Siôn Simon, the creative industries minister appointed to pilot the legislation through parliament for the Department for Culture, Media and Sport, announced he is resigning an MP.

Australian Judge Explains Why Three Strikes Isn't Reasonable

Michael Geist — Wed, 03 Feb 2010 18:42:40 +0100

Australian Internet users are today celebrating a landmark decision in which an Australian court ruled against the film industry in their lawsuit against iiNET, Australia's third largest ISP. The industry had asked the court to hold the ISP liable for infringing BitTorrent activities of its users. The court soundly rejected that demand, holding that the ISP could not be seen to have authorized the infringement.

While the authorization analysis is unquestionably the foundation of the decision, there is a detailed, must-read section on subscriber termination schemes, better known as three strikes and you're out (paragraphs 425-442). In it, Justice Dennis Cowdroy explains why such schemes are far more complicated than is often claimed and are simply not reasonable in many circumstances.

First, Justice Cowdroy confronts claims that ISPs terminate subscribers for non-payment of accounts, so why not for copyright infringement:

Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight ‘yes’ or ‘no’ question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.

After rejecting claims that Australian copyright law envisages termination as part of that law's safe harbour provisions, Justice Cowdroy turns to claims that ISPs have the technical capability to cut off access:

One need only consider the lengthy, complex and necessary deliberations of the Court upon the question of primary infringement to appreciate that the nature of copyright infringements within the BitTorrent system, and the concept of ‘repeat infringer’, are not self-evident. It is highly problematic to conclude that such issues ought to be decided by a party, such as the respondent, rather than a court. Copyright infringement is not a simple issue. Such problems as identified are not insurmountable, but they do weigh against a finding that the respondent could conclusively decide that infringement had occurred and that it had the relevant power to prevent by warning, suspension or termination of subscriber accounts, even if it had the technical capability to do so. Even if feasible, such a scheme would likely lead to significant expense incurred by the respondent, as was alluded to by Mr Malone in his second affidavit. Of course significant expense was likely to have been incurred by the respondents in Kazaa, but that was in the context of those respondents having provided the ‘means’ of infringement. The respondent has not done so in these proceedings, and thus the expense and complexity of the imposition of responsibility for a notice and termination scheme on them manifestly militates against the conclusion that such scheme is a relevant power to prevent.

All of these leads to an unambiguous conclusion from the Court:

The Court does not consider that warning and termination of subscriber accounts on the basis of AFACT Notices is a reasonable step, and further, that it would constitute a relevant power to prevent the infringements occurring. The respondent did not create the ‘means’ to infringe copyright. It was the constituent parts of the BitTorrent system which has given rise to the infringements. Consequently, it cannot be incumbent upon the respondent to stop the infringements. Even if it was incumbent upon the respondent, that does not lead to the conclusion that it was a reasonable step for it to take action.

...

Obviously termination of the subscriber accounts would constitute a step that would prevent the person or persons from infringing (at least with that ISP), but it would also prevent that person or persons from using the internet for all the non-infringing uses to which the internet may be put and to which they have contracted with the respondent and provided consideration. Given that Wilcox J had no desire to order the respondents in Kazaa to shut down their system where he found the predominant use was to infringe copyright, it would seem that termination of accounts in the circumstances of unproven and sporadic use, at least absent judicial consideration of the extent of the infringement on each account, would be unreasonable. The words of Higgins J in Adelaide Corporation are apposite. While termination of accounts would stop the infringement, it would do much more and in the circumstances it would not be reasonable. Consequently, warning and termination/suspension does not relevantly constitute a power to prevent infringement on the part of the respondent.

When combined with today's reports that Australia has opposed three strikes as part of the ACTA talks, there is considerable good news on the copyright front coming from down under.

Garneau on a Canadian Digital Strategy

Michael Geist — Wed, 03 Feb 2010 11:07:23 +0100

Liberal Industry critic Marc Garneau has published an op-ed on the need for a Canadian digital strategy. Garneau calls out the lack of action on connectivity, universal access, net neutrality, and intellectual property reform.