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FROM THE OFFICES OF LESLEY ELLEN HARRIS

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Vol. 5, No. 2, June 4, 2001

ISSN 1489-954X

Contents:

1.. Studies, Legislation and Conventions:
New online child pornography law in Canada

China clamps down on piracy and copyright infringement

WIPO Conference discusses broadcasting rights

U.S. distance education legislation

Proposed U.S. database protection legislation

2.. Legal Cases:
Chinese e-newspaper fined for violating copyright

U.S. Copyright Office rules on net radio dispute

Van Gogh Web sites in rights fight

Montreal copyshop found in contempt of court

3.. E-Commerce:
Amazon and Adobe team up to offer e-books

Internet radio for kids

Music label releases copyright-protected CD

4.. Of Interest:
Netherlands organization introduces music licensing for

Internet and cell phones

WIPO seeks input into Internet domain name process

New model license agreement

5.. Seminars:
Digital licensing seminar in Philadelphia

6.. Publications:
How to be a better negotiator in the digital realm

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Copyright, New Media & E-Commerce News is distributed for free by the office of Lesley Ellen Harris. Information contained herein should not be relied upon or considered as legal advice. Copyright 2001 Lesley Ellen Harris. This newsletter may be forwarded, downloaded or reproduced in whole in any print or electronic format for non-commercial purposes provided that its author is acknowledged and that you cc: [log in to unmask]

This newsletter is archived with the National Library of Canada at:

http://collection.nlc-bnc.ca/100/201/300/copyright/index.html

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1.. STUDIES, LEGISLATION AND CONVENTIONS:
NEW ONLINE CHILD PORNOGRAPHY LAW IN CANADA - In March 2001, the Canadian government introduced Bill C-15, which targets sexual exploitation via the Internet. The proposed legislation includes provisions that would make it a crime "to transmit, make available, export and intentionally access child pornography on the Internet", and allow judges to order the deletion of child pornography posted on computer systems in Canada. The text of the Bill is at: http://www.parl.gc.ca/37/1/parlbus/chambus/house/bills/government/C-15/C-15_1/C-15TOCE.html.

CHINA CLAMPS DOWN ON PIRACY AND COPYRIGHT INFRINGEMENT - The Chinese government is considering changes to its copyright laws to protect copyright on the Internet, outlaw the decoding of software encryption, and ban the removal of any copyright information on a product. The full story is at http://www.chinadaily.com.cn/cover/storydb/2001/04/17/it-cnmcopyright.html.

WIPO CONFERENCE DISCUSSES BROADCASTING RIGHTS - Responding to worldwide piracy problems, the fifth session of the World Intellectual Property Organization's ("WIPO") Standing Committee on Copyright and Related Rights ("SCCR"), affirmed its commitment to protecting the rights of broadcasting organizations. The Committee also discussed the protection of so-called "non-original" databases, like telephone books, that do not qualify for copyright since their content is not sufficiently original. Since this kind of material can be expensive to compile, yet easy to reproduce, the Committee felt that some protection might be required, although further discussion will be necessary. More information is at http://www.wipo.int/news/en/ - click on pressroom, then updates.

U.S. DISTANCE EDUCATION LEGISLATION - On May 17, 2001, the U.S. Senate Judiciary Committee approved S. 487, Technology, Education and Copyright Harmonization Act of 2001. The TEACH Act, as it has become known, would broaden the U.S. Copyright Act exemption for instructional broadcasting to include distance education, although this would only apply to "mediated instructional activities."

PROPOSED U.S. DATABASE PROTECTION LEGISLATION - A series of meetings is currently taking place in an effort to produce new database protection legislation in the U.S. The meetings are organized by the chairmen of the House Judiciary and Energy and Commerce Committees and are moderated by staff from both Committees. The meetings are open to interested parties and House staff, and are taking place over an eight-week period ending on June 7, 2001.

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2.. LEGAL CASES:
CHINESE E-NEWSPAPER FINED FOR VIOLATING COPYRIGHT - A Beijing Court recently ruled that The Xiamen Commercial Report, a Chinese E-newspaper, violated a journalist's copyright by plagiarizing his story. The newspaper published a slightly altered version of Zhao Jun's story, changing the name of the writer to Chen Jiali. The Xiamen Commercial Report told the Court that it had copied the story from the Internet, but was unable to show the Court the original Web site.

U.S. COPYRIGHT OFFICE RULES ON NET RADIO DISPUTE - In an April ruling, the U.S. Copyright Office ruled in favor of the Recording Industry Association of America when it decided that radio broadcasters are not exempt from licensing royalties when they simulcast their programs on the Internet.

VAN GOGH WEB SITES IN RIGHTS FIGHT - David Brooks, a computer programmer from Toronto and creator of the comprehensive Vincent van Gogh Gallery (http://www.vangoghgallery.com), is starting legal proceedings against the owner of another van Gogh site, About van Gogh Art (http://www.about-van-gogh-art.com). Brooks, who scanned reproductions of over 2000 van Gogh paintings, sketches and drawings over the five years it took him to build his site, claims that the rival site re-posted many of these paintings without his permission. The lawyer for the rival site has said that Brooks is claiming rights over intellectual property that he does not own. Brooks recently hired a lawyer in the Netherlands to try to force the rival site's Dutch owner to remove the offending images on the grounds of database copyright infringement, which is illegal in the European Union. For the full story, see http://www.iht.com/articles/20310.htm.

MONTREAL COPYSHOP FOUND IN CONTEMPT OF COURT - U Compute, a Montreal copyshop, has been found in contempt of court for ignoring an earlier copyright infringement decision. The copyshop was found liable for breach of copyright after evidence showed it was copying entire textbooks for sale to students. CANCOPY, ITP Nelson, McGraw-Hill Ryerson and Prentice-Hall Canada brought the successful motion for contempt when they discovered that the copyshop was continuing to sell its photocopied textbooks, breaching a "wide injunction" which prevented the copyshop from making, selling or distributing unauthorized copies of copyright protected works.

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3.. E-COMMERCE:
AMAZON AND ADOBE TEAM UP TO OFFER E-BOOKS - In April, Amazon began to offer almost 2,000 titles using Adobe Systems' eBook Reader software. The new venture doubles the number of titles available through Amazon.com's e-book section. See Adobe's press release at http://www.adobe.com/aboutadobe/pressroom/pressreleases/200104/20010410amazon.html.

INTERNET RADIO FOR KIDS - Playhouse Radio, a new Internet radio station for parents and their children aged 0-8, debuts officially on June 16, 2001. Listeners can find hundreds of songs from around the world, searchable by simple key words like "bath time", "trucks" or "zoo". Sneak previews of the site are available by clicking on media visitors at http://www.playhouseradio.com.

MUSIC LABEL RELEASES COPYRIGHT-PROTECTED CD - Music City Records is releasing new signing Charley Pride's latest CD in a high-tech format designed to prevent the songs from appearing on Napster. Encryption technology from SunnComm prevents people from copying the CD on a CD burner or downloading to Napster in digital format. The CD can be downloaded to MP3, but only after a buyer registers his or her copy of the CD. For more on this story, see http://news.cnet.com/news/0-1005-200-5924584.html?tag=st.ne.1005.saslnk.sase.

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4.. OF INTEREST
NETHERLANDS ORGANIZATION INTRODUCES MUSIC LICENSING FOR INTERNET AND CELL PHONES - BUMA/ STEMRA has introduced regulations on collective rights reimbursements for the use of music on the Internet (simulcasting, Webcasting and background music). The Dutch copyright organization has also introduced a regulation on downloading music and sounds for cell phone ring tones.

WIPO SEEKS INPUT INTO INTERNET DOMAIN NAME PROCESS - The World Intellectual Property Organization ("WIPO") invites comments on its Interim Report on Internet domain names, and on the draft recommendations contained in the Report. The full text of the Interim Report, together with an online submission form, is at http://wipo2.wipo.int/process2/rfc/index.html. Comments should be submitted by June 8, 2001.

NEW MODEL LICENSE AGREEMENT - On May 1, 2001, The Liblicense Standard Licensing Agreement was released at http://www.library.yale.edu/~llicense/standlicagree.html. It is an attempt to reach a consensus on the basic terms of contracts for licensing digital content between university libraries and academic publishers. It is sponsored by the Council on Library and Information Resources, the Digital Library Foundation and Yale University Library, and is worth a look!

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5.. SEMINARS
DIGITAL LICENSING SEMINAR IN PHILADELPHIA - On Friday, June 8, 2001, Lesley Ellen Harris will be conducting a half day seminar on digital licensing in Philadelphia, sponsored by PALINET. In the seminar, which will be useful to all those involved in the use or licensing of digital materials, participants will be led through a clause-by-clause analysis of a typical licensing agreement. For more information, or to register online, go to http://www.palinet.org and click on "Workshops".

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6.. PUBLICATIONS
HOW TO BE A BETTER NEGOTIATOR IN THE DIGITAL REALM - Lesley Ellen Harris' article on negotiating for digital rights is available online at http://www.gigalaw.com/articles/2001/harris-2001-04-p1.html. The article contains practical advice on how to negotiate contracts that involve digital rights, whether for software, databases or the Internet.

COPYRIGHT & NEW MEDIA LAW NEWSLETTER EDITORIAL - The editorial from Volume 5, Issue 1 of The Copyright & New Media Law Newsletter: For Libraries, Archives & Museums proved so popular that the full editorial is reproduced below. The Newsletter is now in its fifth year of publication, with contributors from around the world and subscribers from 20 countries. The newsletter helps you to keep abreast of important copyright issues and news, and to ensure practical solutions in your everyday activities. 2001 subscriptions are now available from http://copyrightlaws.com or email [log in to unmask] The subscription price includes four print issues, as well as free timely and frequent email alerts.

EDITORIAL - The Internet is making the world a much smaller place and when it comes to digital goods - products that can be reduced to a series of zeros and ones and squirt down a wire - there are no international borders. One question often asked in relation to the Internet and copyright law is whether there should be a single international copyright law.

Although there is no single international copyright law, there is an international system of copyright that results in protecting copyright works at a minimum level in all countries that comply with this system (or belong to one or more of the copyright treaties.) At the current time, most countries belong to the Berne Copyright Convention (http://wipo.int) whose principle of national treatment means that you apply the law of the country where the work is used. This seems simple enough. If you photocopy an article by an American author in Canada, then you apply Canadian copyright law. If you publicly perform a work created by an Australian composer in France, then you apply French law. However, the question inevitably arises as to which country's laws apply in cases of copyright uses and infringement that take place on the Internet. As set out above, the country where the work is used is the applicable copyright law. However, with the Internet, it is sometimes difficult to establish where a work is used. Is it used where the work is uploaded onto a Web site, or where it is downloaded, or perhaps in other countries along the way?

As recent court cases suggest, the question of which country has jurisdiction over the Internet is a source of much debate among legal scholars, law associations and courts around the world. The leading cases and commentaries are American.

Overall, the position on jurisdiction on the Internet seems to be based on a number of considerations:

a.. Is there a connection between the location where the work was originally posted and the place where the infringement has occurred?
b.. Are either of the countries of origin in which the sender or receiver of the impugned Internet activity located in signatory countries to an international agreement that would regulate this activity?
The answer, if there is one, appears to be that a jurisdictional analysis based on existing international law principles should be done to determine which country has jurisdiction over a particular Internet infringement. Until a specific international agreement is ratified by many influential nations, there does not seem to be a definitive way to answer the question of which country has jurisdiction over the Internet.

Does it make sense for countries to support a single international copyright law? And if so, what copyright principles would be followed in this law? Would we follow the U.S. law that allows for fair use and various exceptions, or would we follow the much more restrictive law of France which favors the rights of creators, or find a compromise position like in Canada? What about the requirements for "notice and takedown" provided in the U.S. Digital Millennium Copyright Act? Are those provisions too burdensome to be applied by Internet Service Providers around the world?

What is becoming clear is that the worldwide trade in copyright protected materials is now moving to the Internet, where intellectual property including copyright law, taxation, border inspection, local anti-hate and freedom of speech laws are difficult to apply and often impossible to enforce. How can France, for example, successfully prevent the sale of Nazi memorabilia to the citizens of its country? No border patrol can intercept the infringing items. Similarly, how can the European Union ("EU") collect Value Added Tax ("VAT") taxes from software downloaded by EU residents from Web sites located in the United States? The answers to these questions are not easy, but it is clear that harmonization is in everyone's interest. Without it, the growth of digital commerce and dissemination of intellectual property in a digital form will clearly be impeded.

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This newsletter is prepared by Lesley Ellen Harris, a Copyright and New Media Lawyer and Consultant. Lesley is the author of the books Canadian Copyright Law (McGrawHill) and Digital Property: Currency of the 21st Century (McGrawHill - see http://www.mcgrawhill.ca/digitalproperty) Lesley can be reached at [log in to unmask], and at http://copyrightlaws.com.

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This LEH-Letter issue was prepared with the help of Beth Davies.

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