Tag: Canada

Canada Extends Copyright Term to Comply With “New NAFTA”

As part of its commitment under the USMCA Trade Agreement, Canada has now extended its copyright term of protection from life-of-the-author plus fifty years to life-of -author plus seventy years, thereby harmonizing this aspect of its copyright law with the United States, the EU nations, the UK, and others. Canadian trade and IP expert Hugh Stephens writes on his blog, “…from my perspective, the most important benefit is that Canadian rights-holders, creators and creative industries will now play on a level playing field with their competitors in most advanced nations.”

Although compliance with the USMCA was inevitable the moment the deal was signed in 2019, copyright skeptics and critics were still rankled by the official announcement of the term extension. Mike Masnick on Techdirt called it a “scandal” and alleged that the Canadian government is plundering the public domain. “It cannot make sense to extend copyright terms retroactively,” he writes, reiterating a view held by many copyright detractors that once the incentive to create a work has been achieved, copyright rights should fade quickly after the work is made available to the market.

Both on this blog and in my book, I have summarized the story of copyright term lengths and how they got that way—though, admittedly, without trying to encompass the development of copyright law in every nation among the 181 signatories to the Berne Convention Treaty. In general, understanding duration of copyright protection can be viewed through the interwoven narratives of the domestic principles and peculiarities in each nation up to the late nineteenth century and the efforts thereafter to establish reciprocity in trade among the community of nations.

Where there is little variance among culturally comparative nations, however, is a longstanding principle that vesting the rights we call “copyrights” in authors of works is a matter of justice, and this includes a consensus that these rights may be inherited as property by a limited line of the author’s descendants. For instance, in England, this idea first took legislative form in 1837 with a proposed life-of-the-author-plus-sixty-years term, and France was the first with a similarly principled statute in 1793 that allowed for a term of ten years after the author’s death.

The life-plus-fifty-years term was voluntary for signatories to the Berne Convention Treaty between its adoption in 1886 and 1948, when the term became mandatory. The additional twenty years of protection originated in the Maastricht Treaty to form the European Union in 1993, and the U.S. Copyright Term Extension Act (CTEA) of 1998 was passed solely in response to that change—and not, as many still believe, to save Mickey Mouse from falling into the public domain.

As Stephens discusses in an excellent blog post, Canada played a unique role as a former colony, semi-colony, and independent state while nurturing its own cultural and literary identity and industry. For instance, during the nineteenth century, before the U.S. codified any copyright reciprocity with other nations, its nascent publishing industry pirated English books, which were sold into the Canadian market. Meanwhile, Canadian publishers could not do likewise as subjects of the English Crown, but they could pirate American books to sell into the American market, and famously did so with the works of Mark Twain.

Then, in the twentieth century, while the U.S. was bogged down in its thicket of copyright formalities, which delayed participation in the Berne treaty, Canada became a Berne signatory as an independent nation in 1928. And during the intervening years before the U.S. finally joined Berne in 1989, American authors often published their books first in Canada to obtain what was known as “back door Berne” protection in the international market.

Why Canada did not extend its own term of protection contemporaneously with the U.S. in the 1990s is simply because it has its own legislative, political, and economic narrative vis-à-vis the timing of international trade deals. Unlike the U.S., the EU extension was not so proximate to Canada’s joining Berne, and by the 1990s, of course, the U.S. creative sector was an economic powerhouse with a tremendous interest in arguing for the extension to keep up with Europe.

So, even if Masnick were correct to look only at the incentive part of the copyright equation, trade parity itself is a damn good reason to harmonize copyright terms, if only to avoid the shenanigans of the past. Even now, the extension prompted by the USMCA is not simply about Canadian authors and the Canadian public domain. As Stephens observes, Canadian authors will enjoy equal term of protection for their works being distributed in the EU countries and the UK, while, for instance, U.S. authors will now enjoy equal term of protection for their works distributed in Canada..

Of course, to copyright critics, nearly any term of protection is too long once the incentive threshold has been crossed, but as I have discussed, this “utilitarian” view that copyright rights exist solely to prompt authorship, and should extinguish shortly thereafter, is a cynical and exploitative view of creators that has never been widely accepted in the history of nations with copyright laws.

On the contrary, aside from the fact that “incentive” of the author encompasses a desire to leave something to one’s heirs, this principle has been extant for as long as even proto-copyright rights have existed. The 1978 World Intellectual Property Organization (WIPO) Guide to the Berne Convention states, “Most countries have felt it fair and right that the average lifetime of an author and his direct descendants should be covered, i.e., three generations.” And that consensus rests on at least three centuries’ worth of evolution in the doctrines of authorial rights worldwide.

As to retroactive copyright rights, it is true that they can create some confusion (i.e., require research) as to whether a work created under a prior act is still protected. I see these questions all the time. For instance, book authors looking to use photographs created under the terms of the U.S. 1909 Act must do some digging to learn the copyright status of the image. But this is not typically what the copyright term hawks are addressing. And more importantly, it happens to be a moot point in this instance because the Canadian term extension bill explicitly states that it does not restore copyright “in any work in which the copyright had expired before the day on which sections 276 to 279 come into force.”

So, what’s the complaint exactly? Oh, yeah. Copyright bad. Got it.

Image by: stuartmiles

Canadian court reflects common sense in rejecting Google appeal.

whack moleWith progress in almost anything, there are usually downsides. Manufacturing and power generation produce pollution; automobiles produce pollution and accidents; smart phones produce selfies.  In some cases, it is only common sense (at least to many of us) to try to mitigate the negative results of an otherwise good thing through legal regimes because the owners of industry don’t have a particularly solid track record for taking voluntary measures to reduce harm where they can.  It’s a familiar narrative. A factory puts too much gunk in the river; society, through its government agencies, tells them to cut it out; and the factory owners howl that there will be job losses, the end of free markets as we know them, and communist troops in the streets within weeks.  When we’re sane, we call bullshit, the factory cleans up its act, and life goes on in the free world while the river rehabilitates itself.  When we’re less sane, we believe the narrative of industry, go for the short money, and let the larger consequences of that polluted river be our kids’ problem.

Google’s search tool indexes the internet for us, and this is a good thing. It even anticipates what we are about to search for, which is a slightly creepy thing, but often impressively handy.  On the other hand, top search results can sometimes be misleading because the hierarchy of results has little to do with quality data per se.  For instance, a paid-for ad linking to a scam tech-support supplier might appear well above the legitimate site hosted by the manufacturer. This is a disservice both to the consumer and the supplier, but Google has rarely demonstrated that it cares much about these particular flaws. Traffic is traffic. Money is money. As a result, search itself can be an opportunity for bad actors to hijack business away from legitimate sellers toward inferior, infringing, or illegal goods and services.  For years, copyright holders have argued that allowing pirate sites to appear in top search results exacerbates the piracy problem; and Google has countered that search has little to with piracy.

Either way, even when Google has taken action to remove a link that contributes in some way to harming an individual or entity, they have thus far only been willing to remove specific pages (URLs) as identified in a single DMCA notice and takedown request. Thus, all a bad actor has to do is change URLs for pages on his website, forcing the injured party to keep sending a barrage of DMCA requests in an effort to stop Google searches from providing infringing results. If that sounds unreasonable, it is.  If your common sense says perhaps Google should de-index the entire site of a bad actor so that the site doesn’t appear in any results anywhere, it’s because that is common sense.

But so far, Google, the Internet industry in general, and so-called digital rights organizations like the EFF have been vehemently opposed to de-indexing sites under any circumstances, which can make them sound more like techno-fundamentalists than rational adults capable of understanding that balanced and measured restrictions designed to protect the rights of the injured from the predations of the injurious neither harm the benefits of the internet nor in any way threaten larger principles like free speech.  And in somewhat different language, that’s pretty much what the Court of Appeal of British Columbia told Google last week in a case of this very nature.

Equustek Solutions makes network devices that enable complex business equipment to communicate with one another.  One of this company’s distributors (named as Morgan Jack in the litigation) began first stripping Equustek’s name from products and selling them as competitive alternatives, and later stealing trade secrets to manufacture and sell knock-off products.  When Morgan Jack was ordered by a Vancouver court to stop operating its counterfeit business in that province, they did what any contemporary huckster does — they went virtual. They set up a web “business,” creating multiple sites, which is how one goes about hijacking search results from a legitimate supplier. Equustek, is now suing Morgan Jack for trademark and trade secrets infringement, but in the meantime the British Columbia Supreme Court granted the plaintiff injunctive relief by ordering Google to de-index the counterfeit sites from its search results, not only in Canada, but worldwide.  Google appealed this judgment, and was last week rejected on all of its major arguments, which I shall attempt to summarize.

Jurisdiction

Google claimed that because it did not do business materially in the province — no offices, no servers, etc. — that the court did not have the “competence” (legalese for authority) to order the removal of these sites from being returned in its search results.  But the appellate court responded thus:

“[Google’s] activities in gathering data through web crawling software, in distributing targeted advertising to users in British Columbia, and in selling advertising to British Columbia businesses are sufficient to uphold the chambers judge’s finding that it does business in the Province. The court, therefore, had in personam jurisdiction over Google.”

That’s a compelling response with potentially far-reaching implications because among the many defenses used by web owners who contribute to some form of harm — either by design or by accident — is the metaphysical “nowhereness” of a website.  It becomes as much a matter of existential philosophy as one of legal theory. But the tech-utopian view, deriving much chutzpah from Barlow’s Declaration of the Independence of Cyberspace, likes to describe a website as though it’s a particle, everywhere and nowhere at the same time, that it can no more be bound by terrestrial laws of Man than the quantum universe can be forced to behave according to the applied physics of our everyday, macro experience.

Of course, it’s common-sensical to think that a company that operates globally, that proudly markets its transformative role in tens of thousands of communities, and that profits handsomely by virtue of its global reach into multiple business sectors can be held to some burden of civic responsibility in every community in which it clearly does tangible business. In fact, in referring to the defendants Morgan Jack from the actual infringement case of Equustek v Jack, the judge writing this appeal decision uses the following language:

“As the product (i.e the counterfeit Equustek hardware) that they sell is a physical one which must be delivered to customers, it may be more accurate to describe their operations as ‘clandestine’ than as ‘virtual’. “

That’s certainly not a reference to Google, but it could easily be a reference to a company like Amazon in a similar case; and as Google indeed moves into physical territory, like home delivery of products, the “You can’t touch me, I don’t exist” argument may continue to sound rather unappealing to judicial ears.

Also, on the issue of jurisdiction, Google argued that upholding the B.C. Court’s injunction to de-index the sites from search results would make the company’s search services subject to every jurisdiction in the world.  And you gotta love the judge’s response to this complaint …

“That may be so. But if so, it flows as a natural consequence of Google doing business on a global scale, not from a flaw in the territorial competence analysis.”

I know it’s not very Googley to think that a global business has to sort out for itself how to comply with the laws in each country; and as pointed out in my last post, it is much more Googley to tell the nations of the world to stop acting like individual states and get with their one-world program. Of course, it is also very Googley to shape-shift from statelessness to nationalism when it suits their purposes, as seems to be the basis of one of its other central arguments in this case.

Comity

In this argument, Google vacillates from the premise, “You have no authority because we’re nowhere” to the premise, “You have no authority because we’re in California.”  In essence, courts in one country should not issue rulings that offend or disrespect the courts or interests of the country of residence of the individual or company subject to said ruling.  This argument by Google elicited much case law discussion by the judges, and then the following response:

“The only comity concern that has been articulated in this case is the concern that the order made by the trial judge could interfere with freedom of expression in other countries. The importance of freedom of expression should not be underestimated. . . .

It has not been suggested that the order prohibiting the defendants [Morgan Jack] from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.”

Again, it is encouraging to see a ruling that corresponds with common sense because it seems obvious that a narrow and limited removal of links, material, or even whole sites from search results, ordered in the name of ensuring the rights of an individual or entity, does not violate the principles of free speech. To say otherwise is self-serving hyperbole on the part of the industry, not unlike the hypocrisy we see when these invasive data-mining companies and their “rights” organizations presume to warn us about the perils of government surveillance. Meanwhile, Google’s other major argument echoes another common refrain, and its rejection may have consequences well beyond this case.

Inappropriate Burden on a Non-Party

Google argued that the court did not have the authority to grant an injunction against a non-party to a litigation.  The principle being argued here (and it’s an important one) is that an injunction must be filed against a party in a dispute that is “justiceable” (i.e. can be settled in court) in order to afford the individual or entity the full rights available to a named party.  But after citing several more pages of case law, the decision states the following:

“Where such a justiciable issue exists, however, the granting of injunctive relief against third parties as an ancillary means of preserving the parties’ rights is a well-established jurisdiction of the courts.”

This addresses a central, ongoing debate about the role of web platforms which are often used to facilitate harm even if that is not the intent or design of the site in question.  Can Backpage’s site be held responsible for users advertising the prostitution of minors?  Can Reddit be held responsible for users uploading photos stolen by hackers? Can Google be held responsible for search results leading to infringing, tortious, or other criminal enterprises? In general, the answer to these questions will be no, at least so far as actual liability is concerned. And that’s probably a good thing.

But the relief that plaintiffs like Equustek are typically seeking has nothing to do with holding a site owner criminally responsible or even filing a civil suit against them for any kind of damages.  In most cases, the injured party simply wants the site owner to remove links, materials, (or in this case de-index whole sites) that are facilitating or aggravating the harm being done by some other party.  It’s kind of like saying “I know you’re not the one hitting me, but if you would stop feeding the bully amphetamines, I’d totes appreciate it.”  Some sites are simply run by bad actors, and individuals and entities harmed by them should not bear the undue burden of entreating Google to de-list one page at a time, while the bad actor keeps moving the offending page(s) around his site.

The case of Equustek v Google demonstrates that a very narrow and carefully weighed judicial approach to de-indexing clearly criminal sites can coexist with free speech and of course not break the internet. More importantly, the Canadian court places what seems like a very fair and minimal degree of burden on the site owner, rejecting the all-too-popular claim that sites are to be treated exclusively and universally as neutral, passive entities in these matters.

It will be interesting to see if Google complies with this order and whether or not this case indeed serves as precedent for future cases in which similar arguments are made by other intermediaries.  Equustek gets to the crux of one of the underlying questions of the digital age — the need to reconcile the reality that while these platforms do foster new lines of openness and expression, they also breed new methods for bad actors to do considerable harm, almost by remote control.  I find it hard to believe that we cannot balance these forces in cyberspace by means of any greater legal contortions than are required to strike this same balance in the “real” world.  Or as I think these appellate judges might say, “The internet is the real world. Time to treat it that way.”