Canadian Copyright is a Canadian Affair

Copyright symbol with maple leafIt seems that the pressure by the American copyright lobby to dictate Canadian Copyright law is again mounting.   Of course I’ve been trying to work on my novel and so didn’t realize this was happening.

My first inkling was a Michael Geist tweet:

michaelgeist EFF & PK warn against using USTR Special 301 process to sanction countries for not implementing ACTA

Nutshell: The United States Trade Representative (USTR) creates a “watch list” of countries who fail to provide “adequate and effective” protection of intellectual property rights or denial of “fair and equitable market access to U.S. persons who rely on intellectual property protection.”

The idea is that if you don’t play nice with American IP, all the other countries hear about it.

Apparently the very powerful American Copyright Lobby has a history of applying pressure to the USTR to include countries based on allegations rather than any proof, in an attempt to coerce countries like Canada to make or laws beneficial to these American corporations.

Public Knowledge and the Electronic Frontier Foundation submitted a joint comment to the USTR Consultation outlining many instances of the misapplication of these sanctions.

The American Trade Act defines “adequate and effective protection” as the refusal of the country to provide means under its laws for foreign nationals to exercise and enforce their IP rights.

It considers a country to have denied market access if its laws or regulations violate provisions of international agreements to which both the U.S. and that foreign country are parties or if the law or regulation constitutes a discriminatory non-tariff barrier.   Thus, a country should be considered to provide adequate and effective IP protection and fair and equitable market access for these purposes if it complies with its existing international obligations and provides foreign rights-holders with a means under its domestic law to enforce their rights or seek access to its markets.

Failure to sign international agreements does not per se mean the country has failed to provide adequate and effective protection for U.S. rights-holders’ intellectual property.   This is also consistent with the principle of national sovereignty, a foundational principle of the modern world order, which recognizes a country’s freedom to choose international instruments to which it will be bound.”

in the Matter of 2010 Special 301 Review:
Identification of Countries Under Section 182 of The Trade Act of 1974

Reading through the PK and EFF comments all I can say is that I for one am very glad that they are out there working to protect the internet for all.

Michael Geist has often said that Canada already has very tough Intellectual Property law, and IP lawyer Howard Knopf tells us exactly why in his Excess Copyright blog post The “Annual 310 Show” – USTR Calls for Comment – 21 Reasons why Canadian Copyright Law is Already Stronger than U.S.A.’s

I made use of PK’s handy online form to submit my comments as a private Canadian citizen, and although it was a tad past the deadline, it was accepted. I thought it particularly important since our own Canadian Government elected not to make a submission.

I realize that our legislature is currently prorogued, but that isn’t slowing down Canadian participation in the ultra-secret A.C.T.A. trade negotiation. In fact, if Canada is singled out here by the USTR it would simply provide more leverage to coerce Canada into signing the A.C.T.A. agreement, no matter how dreadful.

RE: 2010 Special 301 Review
Docket Number USTR-2010-0003

Jennifer Choe Groves
Senior Director for Intellectual Property and
Innovation and Chair of the Special 301 Committee
Office of the United States Trade Representative
600 17th Street NW
Washington, DC 20508
Filed electronically via

Dear Ms. Groves:

The United States Trade Representative (USTR) must not allow rights holders to use this proceeding to force sovereign nations to impose overzealous restrictions on their citizens and interfere with our civil liberties or diminish our global standing.

Whatever happened to the American spirit of liberty, and vaunted dedication to life, liberty and the pursuit of happiness?

The USTR must recognize the importance of balanced intellectual property law to innovation and free expression. The provision for innovation and free expression is necessary for culture to exist.

The USTR must demand rights holders support claims of infringement and loss with verifiable data following standards of proof and the rule of law.

Unsubstantiated accusations can be made in error, or just as easily made spuriously by entities who are not even the rights holders as a means of suppressing free speech.

The United States will lose global credibility by continuing ton this slippery slope.

The United States does not have the right to dictate Canada’s specific structure of domestic laws. Your rights holders’ demands for increasing criminal penalties, prison terms, fines, and liability have no place here as we have the sovereign right to determine our own limitations and exceptions to copyright.

Canadian Copyright law is robust, in many ways stronger than your own as explained in esteemed Canadian Intellectual Property lawyer Howard Knopf’s blog:

As a Canadian Citizen and a writer I hope the USTR follows the law not the lobbyists.

Laurel L. Russwurm

canadian flag
a sovereign nation
American Flag
follow the laws not the lobbyists

Google Book Search OPT OUT letter: WRITERS

Thanks to Sarah Sheard’s Writers Round Up and her links to the American National Writers Union I have just learned about the infamous Google Book search settlement.  
(Out of touch: who me?)

If the Corporate Copyright Lobby has their way nothing from Mickey Mouse onward will ever enter the public domain.   So the thought of slapping copyright on material that is already in the public domain is repugnant to me.   I knew had heard that Google was scanning public domain books and making the resulting digitized version available under Google copyright.   I thought that was bad, but at the same time it is better than having books lost forever. [Note: Robert Shaw has corrected this error on my part. I’ve just downloaded one of Google’s digitized public domain books and it does not in fact carry a Google copyright. There is a cover letter where Google lays down the ground rules, and the document is apparently watermarked.

Myself I much prefer the wonderful Project Gutenberg, which scans books and makes them available to everyone everywhere absolutely free online without copyright.

Art from "The Nightingale and the Rose, one of my favorite Oscar Wilde stories."
Digitizing public domain work for the common good.

But that is not all Google is doing:

1. What is the Google Book Search (GBS) lawsuit about?

Since 2004, Google has been scanning the entire collections of several major libraries, without asking for or obtaining permission from the authors or other copyright owners.

Copyright "c"Google scans entire books and other works, converts the scans from images to text, indexes them, and republishes them for profit by including “snippets” from scanned books in results of Google searches and selling ads on these search result pages.   None of the money from these ads goes to the author or copyright holder, even if someone searches for a quotation from your book, poem, etc., or all the search results on the page with the ads come from your book.

The Authors Guild (without consulting or involving the NWU or any other writers’ organization) and the Association of American Publishers (which represents major New York commercial publishers) sued Google in federal court in New York for copyright infringement.   Their lawsuit was provisionally certified as a class action on behalf of all authors and publishers anywhere in the world whose works were scanned by Google.

National Writers Union FAQ about the revised Google Book Search copyright infringement settlement proposal

The original settlement got so much flack from so many countries that this new settlement has been scaled back so that the only countries it will be inflicted on are Australia, Canada, and the USA.   Perhaps if we make enough of a fuss this settlement will also be quashed.

Sarah Sheard has mounted a Canadian Writers’ Petition in an effort to attempt to stop the settlement, particularly for Canadians.

Every Canadian writer should sign, published or not.

This petition can help achieve the best possible outcome: for the settlement to be denied.   (There are many American writers organizations vigorously fighting against this settlement as well.)   Should the court approve this settlement it will be binding on American, Australian and Canadian writers.   The time frame to do anything is ridiculously short, as the decision will be made after submissions stop being accepted on January 28th, 2010.

The American National Writers Union provides a list of options, including my favorite, which is to opt out of the settlement.   By opting out you deny Google the opportunity to take control of your work; you retain your rights.   Even though I have not yet finished my novel, I will, because I plan to self publish it and many more.

The NWU provides a sample letter for writers to use.   Even though it was not a PDF it was read-only for my computer, so I’ve taken the liberty of re-typing it here to make it easy for writers to use with simple cut and pasting.


Office of the Clerk of the Court
U.S. District Court for the Southern District of N.Y.
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, NY 10007-1312

Re: The Authors Guild, Inc., et al. v. Google Inc., No. 05CV 8136

By this letter, I opt out of the proposed settlement in this case. I am opting out of both the “Author Sub-Class” and the “Publisher Sub-Class,” and out of the settlement in its entirety.

I have written and/or published works under names including, but not limited to, the following variant spellings, forms, pen names and pseudonyms:

My works include, but are not limited to the following:

I am opting out because



cc: Google Book Search Settlement Administrator
c/o Rust Consulting
P.O. Box 9364
Minneapolis, MN
USA 55440-9364

[Optional copies for Google, print publishers, and the Authors Guild:]

Michael J. Boni, Esq.
Joanne Zack, Esq.
Joshua Snyder, Esq.
Boni & Zack LLC
15 St. Asaphs Rd.
Bala Cynwyd, PA 19004

Jeffrey P. Cunard, Esq.
Bruce P. Keller, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022

Daralyn J. Durie, Esq.
Joseph C. Gratz, Esq.
Durie Tangri Lemley Roberts & Kent LLP
32 Pine Street, Ste. 200
San Francisco, CA 94104