Wednesday, January 12, 2011

"soaked in nature's fecund blessing"

(title quote lovingly extracted from Cold Comfort Farm, by Stella Gibbons, published in 1932 by Longmans -- thanks to Penguin for the cover image)

It seems appropriate, sitting as I am in the tail end of a whomping good blizzard to be reflecting on the sometimes cold comforts offered in the copyright reform discussion. Specifically, I am trying to wrap my head around the idea insisted upon by Professor Michael Geist (most recently in the blog posting Clearing Up the Copyright Confusion, just before the holiday break) that authors and publishers should really not be worrying our little heads about the inclusion of education as a category of fair dealing.

Dr. Geist's long and oft-repeated argument insists that a six-part fairness test will protect us from unfair uses of our materials. It all sounds very legal and proper, and even vaguely professorial; unfortunately, it generates very little heat, and I think the Canadian writing and publishing sector can be excused for shivering in the chill wind Geist creates.

Which is why I suggest all Canadian writers and publishers put on a sweater and curl up with a copy of Dan Glover's detailed and authoritative response to Professor Geist. "Sowing New Confusion?"

Glover, an associate in the Intellectual Property Group at McCarthy T├ętrault LLP, has spent a great deal of his private time over the holidays researching and documenting the sometimes astonishing wrongness of so many of Professor Geist's comforting words.

In his paper, Glover takes the famed consumer advocate to task for intentional vagueness, willful omission, inconsistency of message, disingenuousness, bait-and-switch tactics and just plain old incorrectness. Along the way, he provides a fascinating survey of case law and the history of debates about copyright and intellectual property, at one point even using a quotation from Lawrence Lessig himself (Geist, Beta Version) to show how far off-base MG has wandered.

There really is no summarizing -- you simply have to go and experience the document for yourself. As Michael Geist might tweet, "It's a must-read!"

Here's a taste:

"I am convinced that Professor Geist significantly understates the potential impact of the proposed new educational fair dealing exception, in part because he places too much faith in the second “fairness” stage of the fair dealing test to govern behaviour in the marketplace. Further, Professor Geist’s survey of other laws omits a principled analysis of whether the proposed exception risks putting Canada offside its international treaty commitments, in particular the three-step test enshrined by TRIPS and the Berne Convention for the Protection of Literary and Artistic Works...

As a final introductory point, I should note that it is not always easy to respond to Professor Geist, primarily due to his a tendency to make bold pronouncements without explanation or support. A representative example is Professor Geist’s statement that “Educational institutions and students spend over a billion dollars each year on books and hundreds of millions of dollars on licencing [sic] for access to databases. That will not change with the inclusion of education within fair dealing.” Professor Geist does not provide a source or a rationale for this critically important prediction. Furthermore, he tells a different story elsewhere in testimony before a Parliamentary Committee, where he admitted that the fair dealing for education reform would result in lost revenues for authors and publishers"

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Thanks to Barry Sookman for pointing me to Glover's paper.


Crockett said...

Somewhere between the diametric poles of Sookman and Geist the sphere of reality will come to rest.

Unknown said...

Ah, yes, good old McCarthy Tetrault.

The problem with McCarthy Tetrault is their refusal to admit when they are in a conflict of interest situation.

I am aware that lawyers are not allowed to talk about their clients, however if they write something that assists a client, and claim that it's their personal opinion, they shouldn't be surprised if observers like myself question their motivations. In other words, due to the actions taken by various lawyers who work at McCarthy Tetrault over the last two years, I would be especially careful about anything that they say. It might just happen to be in their client's best interest, and not yours.

Note that this doesn't mean that I am claiming they they lie, because I do not think that they do. But they do not always tell the whole truth either, often making statements that while not strictly untrue, are worded so as to advantage their client, while pretending that they are making the statement for the good off all Canadians.

Of course we all know that I'm a totally cynical old bastard :)

Unknown said...

BTW John, did you see Barry's most recent foot in mouth episode?

And yes, I don't have a very high opinion of Barry.


John said...

Mad Hatter,

I'm not sure why you think I care about your opinion of Barry Sookman. As far as I can tell, your opinion about everyone is the same. We all "don't understand technology."

Why Parliament continues to NOT ask you to explain it to us all is an ongoing mystery.

Unknown said...


Hey, I'm opinionated. And I'm usually right.

Now you've quoted Barry in the past, as someone who knows what he's talking about. I've just pointed out that he doesn't know what he's talking about.

What should I do? Ignore someone who claims to know what he's talking about, and is totally wrong? That wouldn't be right, because it would leave people who don't have the skills to evaluate the technology, with a false impression. So I speak out.

I don't expect to be popular. Quite frankly I don't care if I'm popular. I do care about accuracy.

For example there was a recently a huge amount of excitement in the Balanced Copyright for Canada Facebook Group about an article posted on Atlantic Wire:

which indicated that concert sales were down. Some research indicated that the article was bogus. Should I have not said anything, and left everyone with the idea that it was correct?

I don't think so.

Wayne aka The Mad Hatter

Polyorchnid Octopunch said...

Mad Hatter: Do you think you could point us to this reasearch that debunks the Atlantic article? I'd be very interested in reading it.

Unknown said...

Sure, that's an easy one since I wrote it :)

The Sky Is Falling – Ticket Prices Go Up, Ticket Sales Go Down