Daniel J Gervais

The internet Taxi: Collective Management of Copyright and the Making Available Right, after the Pentalogy

Daniel J. Gervais — Thu, 02 May 2013 07:16:55 PDT

This review of the five 2012 decisions by the Supreme Court of Canada (known as the "Pentalogy") concludes that the Supreme Court got it mostly right in three cases dealing with a more technical interpretation of the statute, but failed in the other two, which were 5-4 splits. All five cases dealt with collective management of copyright in one form or another.

One particularly controversial case insisted that the rights of reproduction and communication to be the public were watertight and separate. This binary view superimposed by teh court on Canadian law contradicts decades of copyright policy and practice and is very difficult to reconcile the French version of the statute. The validity of explanation given by the Court's majority is scrutinized in the chapter..

FInally, in a case dealing with reprography, the court interpreted private research in a way that is hard to defend, while jettisoning many standard precedents, but the exact impact of the case is unclear because private research must also be "fair" to constitute fair dealing.

IS PROFITING FROM THE ONLINE USE OF ANOTHER’S PROPERTY UNJUST? THE USE OF BRAND NAMES AS PAID SEARCH KEYWORDS

Daniel J. Gervais et al. — Fri, 05 Apr 2013 07:08:58 PDT

This article begins with a basic question: Is Google’s profiting from the use of another’s brand in its AdWords program unjust? Answering that ques-tion will profoundly affect the online economy. Indeed, many services, includ-ing most of those offered by Google, are funded by advertising revenue, a large portion of which comes from the sale of third-party brand names. Academic articles and court opinions thus far have applied trademark law when evaluating liability. The consensus view, including the Fourth Circuit’s recent Rosetta Stone opinion, finds no infringement by Google—third-party purchasers of AdWords may be liable for dilution or infringement claims—even though Google profits from every sale while brand owners often suffer a prejudice from the sale and use of their brand name. If one agrees that this misuse is a wrong that must be remedied, are there other avenues to explore beyond the strictures of trademark law? The law usually takes a dim view of one who uses a third party’s property without authorization and yet in the case of AdWords, it has not—at least not up to now. This inconsistency arises from a failure to reach beyond the limits of trademark law in search of a remedy. After evaluating several legal and equitable bases for a remedy and sur-veying the preemption question as it interfaces with trademark law, the authors advance unjust enrichment as the best legal basis of liability and remedy for theunauthorized, profitable and therefore wrongful use of another’s property. Such a remedy would impose reasonable limits on the use of brand names in Ad-Words

Cloud Control: Copyright, Global Memes and Privacy

Daniel J. Gervais et al. — Tue, 06 Mar 2012 11:26:28 PST

This paper examines the shift from the Internet connection paradigm to an amalgamation paradigm. Ultimately, almost all personal and commercial content will be stored or backed up in the computing Cloud. This is likely to change the way in which copyright is enforced and users' privacy is protected.

The Rise of 360 Deals in the Music Industry

Daniel J. Gervais — Wed, 30 Nov 2011 12:19:38 PST

360 deals can give record companies access to revenue from movie contracts, merchandise sales, and other sources “all around” the artist. They reflect a transition from an industry model focused on delivery of goods (compact discs or even iTunes tracks) to one in which music is increasingly a service generating revenues from multiple activities bundled with phone, Internet, or cable access. The authors explore the history, contents, benefits, and future of 360 deals.

The Landscape of Collective Management Schemes

Daniel J. Gervais — Fri, 21 Oct 2011 10:10:00 PDT

This paper, based on a keynote talk at Columbia Law School, reviews the nature of collective management organizations (CMOs), their regulation, in particular the difference in the US regulatory regimes for performing rights organizations (PROs), digital transmissions of sound recordings and reprography. The paper reviews the incoherent rate-setting processes under consent decrees and sections 112 and 114 of the US Copyright Act. The paper also considers the role that CMOs can and should play in empowering new business models and modes of access to online material.

Golan v. Holder: A Look at the Constraints Imposed by the Berne Convention

Daniel J. Gervais — Tue, 11 Oct 2011 11:08:02 PDT

One of the central issues in the Golan v. Holder litigation is the extent to which the United States had flexibility to tailor the protection of existing works that had fallen in the public domain when it joined the Berne Convention. This Essay argues that the Berne Convention obligates the United States as a Berne Union member to provide some degree of protection, but otherwise leaves wide latitude to set the conditions under which works in the public domain receive retroactive copyright protection. The Convention itself does not mandate that any particular level of protection be granted to such works because, as both the negotiating history and secondary literature show, the drafters of the Convention acknowledged that member states would face implementing constraints in their countries. Whether or not the United States recognized this flexibility when it joined the Convention, it is clear that Congress can grant a limited form of retroactive protection to works in the public domain in order to meet its international obligations and simultaneously protect the constitutional rights of third parties.

The Google Book Settlement and International Intellectual Property Law

Daniel J. Gervais — Wed, 27 Apr 2011 11:16:32 PDT

This Insight examines the Berne and TRIPS arguments raised in the case and evaluates the proposed Settlement's compatibility with these agreements. Incompatibility with either the Berne Convention or TRIPS could lead to a WTO dispute against the United States because TRIPS Article 9 requires that WTO Members comply with almost all of the substantive provisions of the Berne Convention.

Making Copyright Whole: A Principled Approach to Copyright Exceptions and Limitation

Daniel J. Gervais — Fri, 15 Apr 2011 15:06:13 PDT

This Article suggests a path to develop a principled conceptualization for copyright of limitations and exceptions at the international level. The paper argues that, normatively, copyright has always sought to reflect a balance between protection and access. It demonstrates that this balance was present to the minds of the negotiators of the 1886 Berne Convention for the Protection of Literary and Artistic Works and may have been somewhat overlooked in revisions of the Convention. It was ultimately replaced by a three-step test designed to restrict the ability of individual legislators to create limitations and exceptions. The article also considers the conflicts between copyright and rights such as the right to privacy, human rights principles of free expression and cultural diversity, the right to information, the right to education, and the nascent right to development, all of which imply striking a balance in intellectual property protection. The article begins with a historical look at the public interest foundations of the Berne Convention and its revisions until 1971. The article then proceeds to a conceptualization of limitations and exceptions in order to show the policy linkages of each type of exception and proposes a set of principles for limitations and exceptions. The article also examines the meaning and impact of the three-step test because it would be pointless, not theoretically, but from a policy perspective, to ignore the application of the test in suggesting international principles for limitations and exceptions.

The Google Book Settlement and International Intellectual Property Law

Daniel J. Gervais — Wed, 13 Apr 2011 07:01:00 PDT

This short article considers the role that international law (WTO) issues played in the rejection by Judge Chin of the proposed settlement in the litigation against Google for its massive book digitization project.

Democracy, Technology and Social Justice

Daniel J. Gervais — Sun, 06 Mar 2011 09:21:16 PST

On the Internet, more information is available than ever before but the oversupply means that intermediaries play a greater role in greater role in deciding which information we get. We may self-select sources that reinforce existing beliefs and prejudices. This is unlikely to elevate public discourse.

APPLICATION OF AN EXTENDED COLLECTIVE LICENSING REGIME IN CANADA: PRINCIPLES AND ISSUES RELATED TO IMPLEMENTATION

Daniel J. Gervais — Mon, 31 Jan 2011 11:23:25 PST

The report examines the advantages, disadvantages and constraints of using an extended collective license in Canada (or extended repertoire) and concludes that the system would make sense in some areas. The use of this system in other countries is discussed.

COLLECTIVE MANAGEMENT OF COPYRIGHT AND NEIGHBOURING RIGHTS IN CANADA: AN INTERNATIONAL PERSPECTIVE

Daniel J. Gervais — Mon, 31 Jan 2011 11:17:49 PST

This document, prepared in 2001, surveys Canadian collectives, compares the Canadian situation to the situation in a number of other countries, including the United States, and proposes three changes to Canadian legislation, including the introduction of extended collective licensing.

ELECTRONIC RIGHTS MANAGEMENT AND DIGITAL IDENTIFIER SYSTEMS

Daniel J. Gervais — Wed, 24 Nov 2010 18:04:13 PST

The first part, entitled “Electronic Copyright Management: A Definition in Time and Space” discusses (a) the concept of rights management as it applies to copyright and related rights, (b) the changes brought about by digital technology and (c) possible areas of application of Electronic Copyright Management Systems (ECMS). The second part examines the legal, technical and standards-related issues that must be addressed to implement successful rights management solutions in global information networks; existing and proposed identifier systems as well as debates surrounding metadata definitions are discussed. The third part looks at the future and explores ways in which existing obstacles to maximum access could be overcome. The paper makes the point that digital access is inevitable and should be embraced by right holders, not fought by excessive lock-up.

The Regulation of Inchoate Technologies

Daniel J. Gervais — Mon, 15 Nov 2010 11:12:07 PST

In the Essay, I explain why and how certain technologies defeat regulatory interventions. I then examine a number of major regulatory pitfalls and how they apply to the inchoate technologies, namely: the “law” of unintended consequences, the politicizing of regulatory interventions, costs, legacy regulation, asymmetric regulation and the role that the notion of efficiency is given in justifying regulatory impulses. I then consider whether the regulation of inchoate technologies should take account of, and may in fact be undesirable because, some technologies (or the use thereof) tend to self-regulate. Finally, I suggest lessons that can be drawn from this analysis and present the structure of a workable model to regulate inchoate technologies.

User-Generated Content and Music File-Sharing: A Look at Some of the More Interesting Aspects of Bill C-32

Daniel J. Gervais — Thu, 14 Oct 2010 10:12:06 PDT

This chapter is not intended as an update, but rather as an addendum to my chapter in Professor Geist’s previous book on Canadian copy- right reform. In that chapter, I suggested that the upcoming reform should focus on excludability of Internet-based uses, that is the exercise of exclusive copyright to prevent online uses of copyright material. I also suggested that this excludability was technologically problematic. Users empowered by social norms and ever-changing technological tools going well beyond peer-to-peer software, and even relying on the old USENET, circumvent technological protection measures (TPMs), and ultimately access millions of MP3s. Proxies and anonymous clients make the activity increasingly hard to detect and track. Finding more intrusive ways to track Internet usage is not just a technological challenge; it also pits copyright against other rights, including users’ privacy rights and interests. It made sense in the context of that chapter to suggest that more online uses should be permitted (and licensed), where appropriate using a collective model providing licensed access to a repertory of works or other protected subject matter.In this chapter I return to the issue of music file-sharing to see how much progress we have made.

Reinventing Lisbon: The Case for a Protocol to the Lisbon Agreement (Geographical Indications)

Daniel J. Gervais — Thu, 02 Sep 2010 06:51:09 PDT

The Doha Development Agenda (Doha Round) of multilateral trade negotiations at the World Trade Organization (WTO) may fail unless a solution to the establishment of a multilateral register for geographical indications on wines and spirits (GIs) foreseen in the TRIPS Agreement is found. Failure of the Doha Round would entail serious intended and unintended consequences for the world trading system. Europe’s insistence on a Doha deal on GIs in now accompanied by demands from several developing countries for an extension of GI protection to products other than wines and spirits. Those demanders consider the current emphasis on alcoholic beverages to be both culturally discriminatory and a commercial impediment to the ability to collect the potential additional rents associated with GIs on various products (coffee, tea, cocoa, textiles, etc.). They argue that international GI protection would support their rural and traditional products, which in turn would lead to “development form within,” a development strategy that prioritizes local autonomy and broad, community-wide development goals. The GI issue has direct implications for future global food consumption patterns. As such, GIs have environmental significance and form an increasingly relevant part of global agricultural and food policy discussions.

In spite of their importance in the Doha Round, negotiations on the establishment of a GI register and its possible extension beyond wines and spirits at the WTO have been at an impasse for several years. This Article is an attempt to move the discussions, and the Doha Round, forward. My focus is on the establishment of the TRIPS GI register and is relationship with the 1958 Lisbon Agreement and its register for “appellations of origin.” My suggestion is that the Lisbon register offers the best substrate to establish the TRIPS register, with or without an extension to products other than wines and spirits. Real or perceived Lisbon deficiencies could be handled appropriately by adopting a protocol to the Lisbon Agreement. After an examination of differences between the Lisbon and TRIPS Agreements, and the Compatibility of a GI register with US trade practices, the Article provides a detailed strategy to achieve a protocol to the Lisbon system functioning as the TRIPS register.

The Google Book Settlement and the TRIPS Agreement

Daniel J. Gervais — Thu, 20 May 2010 10:06:18 PDT

The proposed amended settlement in the Google Book case has been the focus of numerous comments and critiques. This “perspective” reviews the compatibility of the proposed settlement with the TRIPS Agreement and relevant provisions of the Berne Convention that were incorporated into TRIPS, in particular the no-formality rule, the most-favored nation (MFN) clause, national treatment obligations, and the so-called three-step test, which constrains the ability of WTO Members to provide new exceptions and limitations to copyright rights.

The 1909 Copyright Act in International Context

Daniel J. Gervais — Mon, 10 May 2010 09:05:45 PDT

The passage of the 1909 U.S. Copyright Act was embedded in a significant period of evolution for international copyright law. Just a year before, the Berne Convention had been revised for the second time. This Berlin (1908) Act of the Convention in remembered in particular for the introduction of a broad prohibition against formalities concerning the “exercise and enjoyment” of copyright. 1909 was also just one year before a new copyright bill was brought before the British Parliament. This Copyright Act, finally adopted in December 1911 and which entered into force in July 1, 1912, greatly influenced laws in many countries, including Australia, Canada, Israel, New Zealand, Nigeria, and South Africa.

In this Essay, I situate the Berlin Act within the framework of the evolution of the Berne Convention from 1886 until the current 1971 Act and explore the role played by the United States, not as much as a participant in the Berlin Conference but by the way its actions influenced the actions of others. To this end, I discuss sequentially the emergence and evolution of the Berne Convention, and then two areas worthy of deeper analyses when considered against the backdrop of the 1909 Act, namely the prohibition against formalities and the rule imposing retroactive application of the Convention.

The Lisbon Agreement’s Misunderstood Potential

Daniel J. Gervais — Fri, 30 Apr 2010 17:18:14 PDT

This article focuses on the similarities and differences between the proposed TRIPS register of geographical indications for wines (and now spirits) and its relationship with the 1958 Lisbon Agreement on the Protection and Registration of Appellations or Origin. I examine the definitional differences between the two instruments top determine their commensurability. My suggestion is that the Lisbon register should be considered as a possible basis to establish the TRIPS register, with or without an extension to products other than wines and spirits. The differences between the two and deficiencies could be handled appropriately by adopting a protocol to the Lisbon Agreement.

Of Silos and Constellations: Comparing Notions of Originality in Copyright Law

Daniel J. Gervais et al. — Wed, 06 Jan 2010 09:44:58 PST

Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be “original,” however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of “creative choices,” which seems to have substantial normative heft in several jurisdictions, is optimal when measured in more operational terms. The paper considers the four traditional silo-like notions of originality used in national legal systems and looks at the major international treaties for guidance in defining the parameters of an international notion of originality. It analyzes the silos and suggests that they take the form of constellations which cannot be defined or compared hierarchically or indeed as completely separate notions; rather, they overlap in myriad ways.