While the parties have not formally disclosed it, the immediate ACTA schedule now appears to include discussions between the U.S. and the EU next month in Washington followed by a full round of talks (Round Ten) in Japan in September.  Some have criticized the exclusion of the remaining ACTA countries in the August discussions, but as I posted earlier, the ACTA text has really come down to a U.S. vs. EU document with the remaining countries picking a side.  The sticking point in Washington will undoubtedly be scope of the treaty, with the EU pushing for inclusion of geographical indications and the U.S. making it clear they are willing to cave on almost anything that does not involve changes to domestic law.  Geographical indications would require change, however, which is what led to my post speculating about the possibility of an ACTA without Europe. 

Last week I posted a scorecard on the major areas of disagreement. This final chart highlights the key changes from the April meeting in New Zealand to the June meeting in Lucerne, with many changes the result of a shift in U.S. position.

Article	April 2010 Draft	July 2010 Draft
Article 1.4: Privacy and disclosure of information	There was a placeholder stating an article needed to be drafted.	There is now text of the article.
Article 1.X: (General Principles)	No such article.	Aus/NZ/Sing/Can are proposing a generic set of principles for enforcement of IP, including social/economic welfare, transfer of technology etc.
Article 2.X.1: General Obligations with respect to enforcement	No such paragraph.	General statement regarding effective and expeditious action, and may not create barrier to trade.  The text is copied from article 41.1 of TRIPS.
Article 2.X.4: General obligations with respect to enforcement	Place holder for government exceptions/liability.	US has proposed text allowing for exemptions for governments based on fair compensation.
Article 2.X.6: General obligations (rights of the defendant and third parties)	Obligation to ensure the protection of the rights of the defendant and third parties appeared only under the criminal enforcement section.	This obligation has been moved to general obligations
Article 2.2.1: Damages	A more rigid calculation of damages as: compensatory to injury caused to right holder OR accounting of profits.	More flexible approach to how damages are calculated based on taking into account a number of factors.
Article 2.2.3: Damages (April 2010 draft)	Even unknowing infringers could be liable for accounting of profits or damages, and these could be statutory amounts. (Based on the January 2010 leak this was an EU proposal)	Removed.
Article 2.2.5: Damages (legal fees)	There were a 2 options proposed (which was a streamlining from the Jan 2010 leak).	A single clear statement that attorney and court fees can be ordered payable.
Article 2.6: Application by rights holder	Formerly 2 options for the scope of border measures on application by rights holder.	One of the few areas where another option has been put on the table.  The US/J/NZ/Can/Sing/Aus/CH/Mex have proposed a 3rd option (option #2 in the July draft) which clearly makes in-transit measures optional.
Article 2.14.1: Criminal Enforcement	Broader definition of what constitutes a “commercial scale”.	Specific wording suggested that would exclude (EU) or allow to be  excluded (US) end users from being involved in “commercial scale” operations.
Article 2.18.3, 3bis & 3ter: Enforcement Procedures in the Digital Environment (ISP safe harbour provisions)		A lot of progress was made, with ISPs qualifying for safe harbour more easily.
2.18.3(a): Obligations of ISP non-liability	ISP non-liability seemed optional for certain routine actions or those outside their control.	Everyone (except CH) now agrees that ISPs will not be liable at least for some routine actions or those outside their control (the details of which are mostly similar from the April to July draft).
2.18.3(b) Conditions for ISP non-liability in cases of temporary storage	The wording describing this temporary storage scenario was more vague in the April draft, was presented in several options and had more conditions associated with it.	Temporary storage is only conditioned on the ISP removing the material after notice that the offending material has been removed from the originating site.
2.18.3(c) Conditions for ISP non-liability in cases of linking users to offending material	As in the case of temporary storage above, in the April draft these conditions were presented in several options and had more conditions associated with it.	When linking an ISP will not be liable so long as they fulfill conditions: 1) ISP must not get direct financial gain 2) ISP must remove access to material once they get notice of alleging infringing material and there is no refutation from subscriber who posted the material 3) ISP must not have actual knowledge of the infringement
Article 2.18.4: Enforcement Procedures in the Digital Environment (Anti-circumvention provisions)	Unauthorized circumvention was prohibited	Substantially less circumvention is prohibited in the July draft: -Only unauthorized circumvention which is carried out knowingly (or with reasonable grounds to know) is prohibited - “unauthorized circumvention of copy control” (per footnote 56)  need not be prohibited
Article 2.18.X: Exceptions	Formerly 2 options regarding exceptions, the second of which was broader and did not contain a limitation precluding impairing legal adequacy.	ACTA parties have largely agreed on this wording to allow for exceptions which don't impair adequacy/effectiveness of protection.

In just over one year, Canada is scheduled to complete the digital television transition, as stations switch from analog to digital broadcasts. While cable and satellite subscribers will not notice the change, over one million Canadians that rely on over-the-air signals will be affected.  Despite the experience in other countries that left many consumers without digital converter boxes staring at blank screens, my weekly technology law column (Toronto Star version, homepage version) argues the Canadian government seems content to leave the switch to the private sector, implausibly claiming "industry-led solutions will ensure a smooth transition for consumers."


The basic notion of the transition is fairly straightforward.  For decades, Canadian broadcasters have used spectrum to transmit over-the-air analog broadcast signals.  Before the widespread use of cable and satellite, many Canadians used antennae - "rabbit ears"- to access those broadcast signals.  

On August 31, 2011, Canadian broadcasters will switch from analog to digital broadcasts. The shift to digital brings several advantages including better image and sound quality as well as more efficient use of spectrum that will open the door to new telecom services.  It also requires those relying on over-the-air signals to have a television with a digital tuner or obtain a digital converter box to convert the digital signal back to analog.

Contrary to popular belief, many Canadians still rely on over-the-air signals.  In its latest update on the transition, the Canadian Radio-television and Telecommunications Commission estimated that up to 857,000 households in larger markets do not subscribe to either cable or satellite.  On top of those households, tens of thousands of rural households also depend upon over-the-air signals.

The CRTC has opened the door to a satellite alternative for rural communities, but households that rely on over-the-air signals in larger markets will need a digital converter box in order to continue to watch programs on their existing televisions. In the United States, the government subsidized the cost of the transition, establishing a coupon program that ultimately cost over $1 billion and forced a six-month delay of the transition when politicians feared that too many consumers were not ready.

Unlike the U.S., there will not be a Canadian subsidy program.  While the additional costs could affect lower income Canadians, who are also more likely to rely on the over-the-air signals rather than cable or satellite services, Canadian Heritage Minister James Moore has firmly rejected a similar approach.

A successful transition also depends upon educating Canadians about the changes. For example, the United Kingdom has established Digital UK, an independent, not-for-profit organization to the lead its process.  The organization is funded by the country’s private broadcasters and was established at the request of the government.  It maintains a comprehensive website and has launched a nationwide advertising campaign.

By contrast, other than the occasional CRTC release - Chair Konrad von Finckenstein has been sounding the alarm bells on the digital transition for months - the issue has attracted virtually no public attention in Canada. Moore has told Canada’s broadcasters that Canadians had "fair notice" about the transition and that the broadcasters should be prepared to complete the switch on schedule, emphasizing the transition "must remain on track."

But most Canadian broadcasters see little value in investing in a public education campaign without government support, particularly since they are already spending millions on digital transmitters. In fact, the mandatory deadlines for the transition were only established after it became apparent the broadcasters would not make the switch voluntarily.

The CRTC has tried to push the issue onto the public agenda, but has thus far faced government opposition and broadcaster indifference. As a result, when Canada’s broadcasters flip the switch next summer, hundreds of thousands of Canadians may find themselves on the wrong side of a new digital divide.

Civil society groups have written to the European Commission warning about the impact of ACTA on access to medicines. The letter cites numerous concerns based on the July leaked text.  The next meeting will be a private meeting in August between the EU and the US as they attempt to sort out their differences on the scope of the treaty. The next round is scheduled for September in Japan.

The University of Ottawa Press has launched a new open access collection, making 36 books available as free downloads.  The books will continue to be available for sale in paper form.

While concern over Bill C-32's digital lock rules has garnered the lion share of attention, the other major issue in the bill is the extension of fair dealing to cover education, parody, and satire.  I have characterized those changes as a reasonable compromise - not the full "such as" flexibility that would have been preferable, but helpful extensions that attempt to strike a balance.  Some writers groups have reacted angrily to the changes, claiming it will cost them millions in revenue and arguing that it amounts to an "expropriation of property."

Last week, the Federal Court of Appeal issued its much-anticipated ruling in the K-12 case, which specifically addressed fair dealing in the context of education.  The ruling was a major win for Access Copyright, as the court dismissed objections from education groups on a Copyright Board of Canada ruling and paved the way for millions in compensation from school boards. 

The case is notable since it demonstrates how critics of greater fair dealing flexiblity have greatly exaggerated claims of potential harm.  For example, former PWAC Executive Director John Degen wrote this week that "the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use."  Access Copyright reacted to the court victory by stating it was "bittersweet" given the C-32 changes.  While there is no doubt that extending fair dealing to education (the law currently covers many educational activities under research, private study, criticism, and review) will bring more potential copying within the scope of fair dealing, this case reinforces the fact that fair dealing is a fair for all, not a free for all and that fears that the extension of categories will wipe out all revenues bear little relation to reality.


The court held that Canadian fair dealing analysis involves a two-part test.  First, does the use (or dealing) qualify for one of the fair dealing exceptions (the Supreme Court of Canada has called these user rights).  Second, if it does qualify, is the use itself fair.  In this particular case, the court affirmed that the copying in question qualified under the first part of the test (ie. for research or private study), but that it did not meet the six-part test for fairness and thus was not fair dealing.  In other words, claims that a new category would eliminate compensation is plainly wrong since the copying in question already qualified under a category of fair dealing.

It is critical to note that extension of fair dealing to education, parody and satire in Bill C-32 only affects the first part of the test.  In other words, while the bill will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.  The Supreme Court of Canada has identified six non-exhaustive factors to assist a Court‘s fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. 

Whether the use of the work qualifies as fair dealing depends upon both meeting both parts of the test.  In fact, the court notes:

I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright". However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.

The case represents a big win for the copyright collectives, but it also demonstrates that their concerns about C-32's fair dealing reforms are overstated.  The bill will open the door to other potential uses being treated as fair dealing, but the requirements for fairness remain unchanged.