www.jeremydebeer.ca

To coincide with "World Intellectual Property Day" tomorrow, 26 April 2008, an eight-country African research network is being launched with a mandate to investigate the relationship between copyright and education in African countries. Here's the media release. I'm extremely fortunate to be a part of the African Copyright and Access to Knowledge (ACA2K) team. Over the course of the initial 3-year project I am working with a team of multi-disciplinary researchers from Africa and beyond to develop and implement a rigorous, objective research methodology, and to compile, analyze and report on research findings.

Last January we met in Johannesburg to discuss our objectives and plan our research activities. Between now and 2010 groups of researchers in Egypt, Morocco, Senegal, Ghana, Uganda, Kenya, Mozambique and South Africa will explore how each country's copyright environment affects access to hard-copy and digital learning materials. They will carry out a thorough assessment of copyright legislation and cases to determine the potential impact of copyright law. Simultaneously, researchers will conduct interviews with officials from government departments, educational institutions, rights-holders groups and more, in order to learn how copyright law actually affects peoples' everyday practices.

Next, research results will be compared across countries so that we can determine how copyright laws, policies and practices impact education in different legal, cultural, linguistic and political systems. The comparative analysis will also be used to develop best practices for lawmakers and educators alike.

In other words, the research will begin to provide a much-needed basis for evidence-based policy making when it comes to copyright and education. With it we can craft better, more effective strategies for influencing changes in laws and in people's behaviour. Ultimately,  of course, our goal is to improve access to learning materials, and hence the educational experience and quality of life for people in Africa.

The research methodology is designed to be scalable, meaning a similar study could be carried out in any country or region of the world. It is our hope that this will happen. Therefore, we've made our detailed methodology guide available in both French and English.

The IDRC and Shuttleworth Foundation deserve recognition for funding this innovative and important research. No doubt it will be of tremendous benefit to policymakers in Africa and elsewhere. The project has already been and will continue to be an incredibly enriching experience for me personally and professionally. I'll be sure to report here on our progress and findings as available.

I just received in the mail hard copies of the 2007 volume of the book series, Canada Among Nations. In it there is a chapter co-written by me and Michael Geist titled, "Developing Canada's Intellectual Property Agenda."

The chapter explores the new global intellectual property framework in order to identify what room to maneuver exists for Canadian foreign and domestic policies. By taking advantage of flexibilities in existing international agreements and promoting progressive attitudes toward new international initiatives, Canada can advance its own interests while simultaneously facilitating social and economic development in other parts of the world. To seize this opportunity, Canada should leverage its technocratic expertise to positively influence global knowledge governance policies and implement domestic reforms as ‘middle-ground’ models for the information society. Adopting the incisive strategies we propose will secure a leadership role for Canada in the world’s new knowledge economy.

It is an honour to have been published in Canada Among Nations, which for twenty years has brought together leading scholars, practitioners, journalists, and members of the NGO community for an assessment of the country's foreign policy. The books in the series are widely adopted in Canadian foreign policy and international relations courses and have become a major publication of record on Canada's policies and actions in the world. I'm especially pleased to be reaching beyond the field of law with this multi-disciplinary publication. Hopefully, our work will have an impact on those working in political economy, international relations and other disciplines, as well as on business and government.

You can buy the whole book (which you should; it is excellent), or download the full text of our chapter right here or (soon) from the SSRN.

While in Hong Kong last week for a workshop on implementing the WIPO Development Agenda, I also took part in a panel discussion on copyright reform. One of the most interesting things I heard came from Hong Kong copyright expert Kevin Pun, who spoke about an educational amendment just introduced into HK copyright law last summer. I immediately thought to myself whether a similar reform might work in Canada. My answer: I doubt it. Here's why.

For those of you following international IP law and policy, you'll know that last year WIPO's General Assembly endorsed 45 recommendations relating to a "Development Agenda." That itself was a significant and exciting achievement. But the litmus test for success is how these recommendations are implemented in practice. As the EDGE Network's research theme leader in technology and intellectual property, I've been steering a multidisciplinary and multinational project working on practical strategies to implement the DA.

In 1788 James Madison wrote in Federalist Paper #43, about the 8th clause of Section 8 of Article 1 of the United States’ Constitution: “The utility of this power will scarcely be questioned.” One could say the same thing about sections 91(22) and 91(23) of Canada’s Constitution, which give Parliament the power to legislate in respect of patents and copyrights respectively. In a 141 years of constitutional cases, Canada's highest court has never considered the scope of or rationale for those powers.

Last weekend, however, at Peter Yu’s annual IP Scholars’ Roundtable, I questioned the utility of those powers. Not in terms of the wisdom of granting IP rights in order to promote progress, but the utility of allocating power over IP law and policy making to Congress and Parliament instead of state/provincial courts and legislators.

This is a topic I’ve been working on for a few years already. I’ve published 2 peer-reviewed articles on copyright and Canadian federalism (one on levies and the other on paracopyrights, more commonly called anti-circumvention provisions). But now I’m working on a more general federalism-focussed theory of IP.

In general, I am investigating the utility of centralizing, as opposed to decentralizing, IP law and policy making. That is to say, my general investigation is not of the doctrinal nuances of any particular jurisdiction but of the conceptual underpinnings of IP law and policy making applicable in any or all federal or quasi-federal political systems. Eventually, I’m hoping to create an analytical tool that can transcend national political systems to explain IP law and policy making choices at both sub-national and international federations.

Yesterday the Ottawa Citizen ran a story about an Ottawa band, My Dad vs Yours, whose instrumental music was used without permission by Fox in its Superbowl pre-game telecast. Apparently, Fox didn't ask the band whether they could use its music as background for Terry Bradshaw's interview with Tom Brady. The Citizen's reporter asked me for my comments on the case, some of which are included in the article.

I'm not sure if I was misquoted or if I misspoke (probably the latter, to be honest), but thought I should clarify what I meant to say. It isn't entirely true that broadcasters in the US don't have to get songwriters' permission to broadcast musical works. The matter is a bit more complicated than that. Certainly, US broadcasters such as Fox wouldn't have had to worry about the rights of performers or record labels because, in the US, performance royalties are only payable for digital transmissions. Whether Fox should have contacted the band for permission to use the underlying music depends. In particular, it isn't clear whether this Ottawa band, or its music publisher if it has one, is affiliated with a performing rights collective like ASCAP, BMI or SESAC. If it is, then Fox almost certainly has a blanket licence to use any music administered by the collective as long as it pays the prescribed royalties. Now, that still wouldn't allow Fox to synch the music with video and release the recording, but as far as I could tell, this was a live broadcast only.

Anyways, it will be interesting to see how Fox responds to the band's copyright claim. I'll keep you posted if/when further details about a possible lawsuit emerge. 

Why were Canadians told that the Government would "improve the protection of cultural and intellectual property rights in Canada, including copyright reform." Well, in part it is because improved copyright protection could be good policy for Canada. However, politics are as influential as policy when it comes to making new copyright laws. Trade and foreign relations are particularly important considerations.

According to Industry Minister Prentice, "we've been criticised internationally for being lax in terms of our copyright law." A closer look at Canada's status in the international community, however, reveals a real opportunity for Canada to show global leadership on the copyright issue. By accepting my 5th and final recommendation and resolving to demonstrate leadership with copyright reforms in the new year, the Government can act on its stated commitment to "strengthening Canada's sovereignty and place in the world."