Let’s begin with the chapter, which appears in the new Irwin Law book , edited by by the wonderful Courtney Doagoo, Mistrale Goudreau, Madelaine Saginur and Teresa Scassa, and available online under Creative Commons license. Although, of course, we recommend reading the full article (a portion of which was recently featured on as the Thursday Thinkpiece), a summary of key ideas should be helpful here. Broadly, we take issue with the way that music is treated in copyright infringement actions, adopting the view that music’s features and compositional processes are sufficiently different from most other categories of copyrighted works so as to warrant somewhat different treatment in evaluating claims of infringement. We argue that musical culture depends on the borrowing and reworking of previous musical ideas in referential ways, such that a strict application of copyright’s substantial similarity test may well chill musical creativity, undermining copyright’s objective of encouraging the creation and dissemination of such works. We argue that the “reasonable listener” test, which uses a musical layperson’s ears as the determiner of substantial copying, is an odd way of going about determining whether a substantial portion of a musical work has been copied. Following , we point out that this little-known sibling of tort law’s “reasonable person” presents more problems for adjudication of copyright infringement than he or she solves. We argue, with the use of a , that the ear alone can be misled, and, by a showcase composition replete with instances of potential but imperceptible infringement, we challenge the assumption that effective infringement analysis best relies on the aural experience of music. On the whole, we (gently) accuse most courts of being insufficiently aware of the ways musical works differ from cookbooks and computer programs, and of approaching the analysis of infringement in music in both legally and musically unsatisfactory ways.

Amongst our proposed solutions, we recommend a greater use of musicological experts to assist the court in moving beyond the average person’s musical perception and understanding. Musicologists applying the principles of music theory―the study of the structure of music―can provide useful insights into the world of music, helping courts to separate common musical devices and standard compositional techniques from more original patterns that may merit protection.  We demonstrate how a music theoretical approach can thus assist the court in rendering a more musically just decision. In particular, such an approach can help courts to resist the mistaken assumption that every similarity recognizable to the layperson is probative of unlawful copying.

So let us now look more closely at the Court’s judgment in Robinson. After affirming (as expected) that the “perspective of a lay person in the intended audience for the works at issue is a useful one” (para 51) in determining whether a substantial part of a plaintiff’s work has been copied, the Supreme Court then nuances this view by that adding that, “[i]n some cases, it may be necessary to go beyond the perspective of a lay person in the intended audience for the work, and to call upon an expert” (ibid.). To illustrate such a scenario, the court chose this specific example:

[52] To take an example, two pieces of classical music may, to the untrained ear, sound different, perhaps because they are played on different instruments, or at different tempos. An expert musician, however, might see similarities suggesting a substantial part has been copied ― the same key signature, the same arrangement of the notes in recurring passages, or a recurrent and unusual harmonic chord. It will be for the judge to determine whether the similarities establish copying of a substantial part, to be sure. But in making that determination, the judge may need to consider not only how the work sounds to the lay person in the intended audience, but also structural similarities that only an expert can detect.

We were thrilled to see the Court endorse a strong music-theoretical approach to deciphering the language of music. The Court supposes here that analyzing harmonies advances a clearer picture of musical composition, and that most people are unable to satisfactorily pursue such analyses. While the Court’s example, like our own, speaks to the possibility of substantial similarities going unheeded by the layperson, it is at least equally true that a layperson may perceive similarities that a court, with the assistance of a musical expert, should dismiss as insubstantial or irrelevant. In short, the Court recognizes the limits of untrained ears as reasonable arbiters of substantial copying, and hints toward endorsing many of our article’s central claims about why music is special and how music theory offers useful tools to assist in the adjudication of music infringement cases. Moreover, the Court’s acknowledgement of a role for expertise in the determination of substantial similarity may reduce the risk of potential overreaching by copyright owners calling for a “holistic assessment” of similarities between works in the wake of Robinson.

It is interesting to consider how this particular example may have come about, given the rather technical musical language it features. No doubt the well-reasoned intervenor submission of Music Canada (prepared by Osgoode adjunct professors , and ) played an important role. But it is also noteworthy that, unlike many other courts, the Supreme Court boasts uncommonly significant musical expertise on its bench. For example, prior to studying law, Justice Thomas Cromwell graduated from Queen’s University with a bachelor’s degree in music, and for many years thereafter took brief moments away from his legal career to organize summer church music seminars and organ performance competitions.^[1] is also an experienced musician, having received a diploma in classical piano performance from the Royal Conservatory of Music in her youth. Can we assume that paragraph 52 is the voice of musical experience speaking?

However it came about, we were pleased to see the Court address the specific challenges of determining substantial copying in relation to musical works. Copyright law may still be in need of some music lessons, but it looks like the Justices of Canada’s Supreme Court have already taken a few; insofar as this important statement by the Court in Robinson is concerned, we think they struck the right note.

Dr. Carys Craig is an Associate Professor at Osgoode Hall Law School. Guillaume Laroche received his LLM from Osgoode Hall Law School in October 2012.

The post Music and Copyright: How the Supreme Court Struck the Right Note in Robinson (Even if its Timing was a Little Off!) appeared first on IPOsgoode.

Although the Gibson case dealt with a common law offense, copyright law and art are no strangers to one another either in terms of boundary clashes. Though most forms of art can comfortably fit into a Copyright Act’s definitions of terms like “musical work” and “artistic work,” there is some art that pushes at the boundaries. One case in the visual arts was Creation Records v News Group Newspapers, [1997] EMLR 445, where a British judge found that objects floating around in a swimming pool could not qualify for copyright under the legal definition of a “sculpture” ; there is indeed something to be said for the fact that objects floating around in a pool, subject to waves, wind, and who knows what else might not be fixed in the ways copyrighted works generally need to be. At the same time, completely aside from whether copyright applies or not, it is not too hard to imagine a scenario in which things floating around in a pool might conceivably be understood as artistic. To be clear, I make no judgement as to whether such a medium could produce good art, I’m just saying it’s far from impossible to imagine a pool filled with water as a modern blank canvas, given the many materials contemporary visual artists are known to work with. One senses that, if popular art in the year 2013 were to take a sharp turn towards pool installations, copyright as it exists today would probably be ill-equipped to deal with conflicts that might arise from this social choice.

As a musician, I sometimes wonder what would happen if some rather unique musical works from the past few decades were put before a judge in a copyright case. For a time, it looked like Mike Batt and John Cage’s estate were going to indulge me with their dispute over a piece of , but in the end . So, instead, today I want to throw out a few examples of musical works from the 20th century that are interesting to think about not just as music, but also as copyrighted works, and see what kinds of copyright issues they raise. Note that these challenging works sometimes push at the edge of public conceptions of what music ‘ought’ be, so I feel a little obligated to remind readers that whether one thinks the art is good or bad is irrelevant in the case of copyright; or, as Judge Learned Hand once wrote:

“Certainly the qualifications of judges would have to be very different from what they are if they were to be constituted censors of the arts.” (Hein v Harris, 175 F 875 (CCSDNY 1910), aff'd 183 Fed 107 (2d Cir. 1923))

In other words, judge the art for whatever aesthetic value as you please, but divorce that judgement from that of whether a work deserves copyright protection or not. Whether the music is good or bad is no consequence to the law. So, in this spirit, let us consider works by three contemporary composers, and see what interesting copyright questions are raised by their art. To be clear, I intend to raise more questions than suggest answers in what follows, and I certainly don’t pretend to have all the answers to the questions I ask (I do have opinions, but sharing them isn’t the point of today’s exercise). Rather, the questions as a whole illustrate how at the creative edge of music, conventional paradigms of copyright cease to apply cleanly and bring about some uncertainty as to the correct application of the law.

Let’s begin with examples that straddle the line between visual arts and music. from American composer George Crumb’s first Makrokosmos (1972) for solo piano (through the magic of YouTube, you can listen to the entire set , , and ). Three scores are reproduced on the page: #4 Crucifixus, #8 Spiral Galaxy and #12 The Magic Circle of Infinity. What’s most striking about these scores is how they are visually organized on the page to correspond to reflect some aspect of the title; the musical notation, while present, is hardly conventional. There’s also something of a pleasing visual aesthetic in looking at the score (especially for the latter two), an asethetic that simply don’t reflect.

So the copyright question here is: are George Crumb’s above pieces musical or artistic works, as per the terms’ definitions in the Copyright Act? The categorization might actually matter; for example, in collective licensing, where tariffs are meticulously spelled out for each and every use, venue, work, etc., a work’s categorization may affect the rates a collective society can charge for its use in a given context. If I perform these works in a concert hall, should the royalty to Mr. Crumb be any higher or lower than the fee charged for exhibiting these scores in an art gallery? It’s a tricky question, for sure; the art’s categorization is at least partially in the eye of the beholder, according to the context in which the work is experienced.

Of course, Makrokosmos is just a warm-up exercise. Let’s move on to a more extreme example: Karlheinz Stockhausen’s (1928-2007) Helicopter String Quartet (or as it is known in the original German, Helikopter-Streichquartett), composed in 1993. You can consult the score if you want, but despite all of its nice colours, to really get a sense of what is going on, you’re much better off viewing an excerpt from a performance. for that when ready; but, be warned, it blows the minds of even seasoned musicians to think this actually happened!

As you can see, not content to have his string quartet performed in a concert hall (or even a more modest school gym, subway station or street corner), Stockhausen takes to the skies for the performance of his Helicopter String Quartet. I have no idea if the helicopters themselves are choreographed in some way or if Stockhausen allows them to fly whatever formation they wish. In any case, the performers and helicopter pilots go off and do their thing while the performance is radio-broadcast back to an audience on the ground through speakers. The audience is invited to view the performance from a distance, so to speak.

Now, to the copyright question. Imagine this (fictitious) scenario: after a recorded Canadian performance of the Helicopter String Quartet, one of the helicopter pilots from the recording launches a suit claiming credit as a performer, and thus a share of the royalties from broadcasting rights and the like. Should this be allowed? The term “performer” is not defined in Canadian copyright law, so the term would need to be defined by the courts. There are arguments on both sides. On the one hand, a helicopter is not really an instrument, and its pilot is not ‘playing’ the helicopter as if it were an instrument, either. Second, there is meaningful gap in our understanding that while both piloting a helicopter and playing the cello require skill, those skills are of such a very different kind that we conceive of them as being unrelated, certainly much more unrelated than, say, playing the cello and playing the piano. We conventionally conceive of the job of a pilot as more of a mechanical technician than we do as a skilled artistic performer. That being said, on the other hand, in this instance the helicopter is providing an important part of the distinct sound of the piece, a percussive background of sorts, and this sound constitutes an integral part of the Helicopter String Quartet experience—after all, if you don’t have helicopters for the Helicopter String Quartet, you’re not doing it right, and helicopters are of little use without pilots to guide them through the air. Additionally, copyright laws ordinarily protect plenty of ‘technical skills’ that might not be properly “expressive” in the conventional sense of the word, skills like producing master sound recordings or writing computer code; along the same vein, is there any reason technical expertise in piloting a helicopter as part of a work’s performance ought not be protected, if it contributes to the performance/realization of the work?

In short: what/who is a performer, under copyright law? If this is fairly straightforward a question to answer in most instances of music and the arts more generally, Stockhausen’s Helicopter String Quartet certainly puts the question front and centre, with unclear answers.

One of the most mind-bending works I’ve encountered and tried to rationalize under copyright has to be Surface Tension (2009), conceived by Eve Egoyan and David Rokeby. Rokeby himself describes the piece in this way just beneath a showing excerpts from a performance:

“Pianist Eve Egoyan improvises on a grand piano and each note she plays is presented visually on a large projection screen rising out of the piano. [...] The software, written by interactive artist David Rokeby, is designed to pick up and represent a variety of performance features like dynamics, pitch, harmonic relationships, durations of notes and pedaling. The result is a entrancing work in which music and image are intertwined in an extraordinary way, with neither element dominating.”

Having attended a live performance of this work, I can attest that the video accurately reproduces what goes on live. Essentially, music is improvised from an idea (for example, long, slow, elongated tones in the second movement), and the sound signal that results from this is sent into a piece of specially-designed software which then transforms those sounds into something halfway between an image and a video, all in real time. The video is projected on a screen for the audience to consider as it listens to the pianist.

Categorizing this work is itself a challenging task: is it a musical or cinematographic work? Or, even, is it a literary work, given the prominent role computer software plays in mediating the whole work-process? This assessment is complicated by the fact that it is the music that directly generates the visuals, though in a somewhat random way; specific notes are not mapped onto specific events, just a general development of the visual idea already under way. The fact that the whole thing is improvised by the performer (as opposed to read from a score) further complicates identifying what the preexisting “work” is independent of its performance; in some sense, the work can only be experienced through performance, in ways that, say, a poem, need not be. It’s clear that there exists a work somewhere in there, it’s just difficult to cleanly isolate it among all the interdependent factors that contribute its performance.

Second: is Rokeby entitled to a ascend to the rank of “performer” here? He is, after all, the author of the software that is generating in a sometimes random and sometimes orderly way an odd ‘video’ that matches the music. But is writing highly specialized and innovative software enough to become a performer, too, when that software is applied in artistic contexts? Or is he merely one of the authors of the work, separate from its performance? After all, Eve Egoyan could improvise exactly the same music at the piano without a video screen, and that would be straightforward enough to decide that she alone is a performer. But once we add the other devices in, the question of who is “performing” the work is trickier.

In summary: there is clearly art, but how clear is the place of copyright in that art?

Now, if I were accused of copyright esoterica here, I would well confess to the crime. But one of the underlying ideas of this IPilogue entry is that new art can push at the boundaries of what we all thought were settled questions in copyright law. What would we do if one of the above underground currents suddenly turned mainstream? Historically, we’ve periodically revised some definitions of the Copyright Act to keep up with new artistic trends: some time after sound recordings became a thing, we protected sound recordings; in the late 1980s when the definition of a musical work as “any combination of melody and harmony, or either of them” became unworkable in Canadian copyright law (say, due to the emergence of rap, which is based around rhythmic more so than melodic/harmonic musical ideals), the 1988 Copyright Act changed the definition to the one that remains on the books today (“any work of music or musical composition”). Yet, there’s still some delay between when an artistic/legal conflict emerges and when copyright law adjusts to recognize the conflict one way or another. While it’s hard to imagine helicopter-based musical performances taking off as a major musical genre, the idea behind Surface Tension is much less farfetched as a mainstream concept, especially in a society that already glorifies music videos. Who knows in what ways new artists might expand that concept; and who knows if copyright would be apt to deal with conflicts arising from the composition and performance of such works, in case such claims came to court. Slowly but surely, as creativity pushes forward, copyright’s goal posts move further away. That, indeed, is the problem copyright faces at the edge of creativity.

Guillaume Laroche is a Graduate Student Member of IP Osgoode and an LLM candidate at Osgoode Hall Law School, where he researches issues on music and copyright.

The post Copyright at the Edge of Artistic Creativity appeared first on IPOsgoode.

As is well-known, one of the more unusual features of Canadian law that somehow remains perpetually understated in IP circles is that our federal laws are proclaimed in two official languages, English and French; as per Section 18(1) of the Charter, both versions of the law are equally authoritative. Similarly, decisions from many adjudicative boards and courts are published in both English and French and both versions are also, at least in theory, equally authoritative. Given this trait, as a point of habit in my research, I often compare important passages of a legal text (statute, decision, etc.) published in English with the equivalent passages in the French version (and vice-versa), to see if any identifiable differences exist between the two.

I’ll return to the linguistic duality of Canada’s legal system in just a moment, but for now, let’s shift gears over to some fundamental principles of copyright law. As every student of copyright in this country is taught, “copyright shall subsist in Canada [...] in every original, literary, dramatic and artistic work” (s 5(1) of the Copyright Act), with the added nuance that copyright law protects only the original expression of ideas, not the ideas in and of themselves (Moreau v St Vincent, [1950] 3 DLR 713 (Ex Ct), at 203). The question of what constitutes “original expression” in a work, though, required an answer from the Supreme Court, given that the Copyright Act does not itself define the terms (nor the term “original” by itself). As every student of copyright in this country also learns, in CCH, Chief Justice McLachlin wrote that:

“What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment.” (CCH at para 16, my emphasis)

This passage is well-known, and is often taken as the definition of “original expression” in Canadian copyright law. Original expression involves skill and judgment. Such a phrase is repeated ad infinitum in law schools across the country.

What seems less well-known, though, is how this oft-cited and crucial observation from CCH was presented in the French version of the decision:

“L’élément essentiel à la protection de l’expression d’une idée par le droit d’auteur est l’exercice du talent et du jugement.” (my emphasis)

For readers with even a most rudimentary understanding of French, a surprising nuance jumps out here. The term ‘skill’ in English is translated as ‘talent’ in French. Linguistically speaking, this is somewhat unusual. My own term for translating ‘skill’ is ordinarily ‘habileté’ ; as it turns out, the Government of Canada’s Translation Bureau (proxied here via Termium Plus, “the Government of Canada’s terminology and linguistic data bank” for matters of translation) agrees with me that this is the normal, so-called ‘correct’ translation. Nowhere in any given translation of the term ‘skill’ does the word talent (in French) appear as an option. The inverse is also true: searching for translations of the word talent (in French) does not yield the term ‘skill’ in English. Unsurprisingly, in that latter case, the term ‘talent’ (in English) is suggested.

So, “original expression” is skill and judgment in one language, and talent and judgment in the other. This is a rather interesting choice, to say the least.

How are we to think about this difference, given that both texts are supposedly equally authoritative? One could be tempted to write off the translation as an error and move on to more pressing matters. Yet that sits somewhat uncomfortably as an argument, in that it presumes that the Supreme Court does not actually mean what it claims black on white that it means. There is also a problem in implicitly asserting that the French version is by default a translation of the English version; given the collaborative nature of SCC decision-writing (see McInnes, M., J. Bolton, & N. Derzko, "Clerking at the Supreme Court of Canada" (1994) 33 Alta L Rev 58), for all we know, the paragraph first originated in French, and was later translated into English. Finally, there is some danger in presuming that the nation’s most careful group of writers inattentively let one go by, no matter how small the nuance. Even though bilingualism is not a formal requirement of acceding to the Supreme Court’s bench, most Justices of the Court are nonetheless at very least functionally bilingual, with many achieving complete fluency. These linguistic competences should in both theory and practice ensure that most Justices are attuned to the nuances of judicial translation. Then there is the fact three Justices involved in deciding CCH list French as their first language (Bastarache, LeBel, Deschamps). As a default position, then, assuming that the Court means what it says black on white seems like the more prudent (and legally defensible) position.

Therefore, given the difference between using the term ‘skill’ in English and the term talent in French, what do we make of that? To illustrate the wiggle room the nuance between the two terms opens up, consider the following pairs of sentences. Is there any meaningful difference between the first and second statement?

“François is a skilled cook.”

“François is a talented cook.”

“The concert featured a very skilled soloist.”

“The concert featured a very talented soloist.”

To my linguistic senses, while the terms “skill” and “talent” are related, they are not quite fully interchangeable either. To me, talent appeals to some higher capacity than skill. While I would happily eat a meal prepared by a skilled cook any day, one prepared by a talented cook seems even more appetizing; and while hearing a skilled soloist perform in concert sounds great, hearing a talented one sounds even better. Anecdotally, people here at Osgoode Hall with whom I’ve discussed this observation agree that there seems to be a bit a gap - not a large one, but a noticeable one nonetheless - between skill and talent. The term ‘skill’ points more toward the technique involved in performing an activity, be it writing poetry, composing music or coding software. Talent, on the other hand, implies some aptitude that requires skill and technique, yet pushes beyond these categories in such a way that some kind of quasi-innate personal creative spark is recognizable. For instance:

 “Jordan is a skilled basketball player.”

“Jordan is a talented basketball player.”

Talent again seems to come in one notch ahead of skill. Where does this nuance come from? One possible answer is the divergence between civil law and common law, as represented on the bench of the Supreme Court. Whereas in the English common law, copyright is understood in a more Lockean labour-oriented perspective, en français, civil law jurists in the droit d’auteur tradition have long adopted a more personality-oriented Kantian view of copyrighted products, such that poems, songs and even academic articles represent the inalienable essence of a person. To be sure, this is of course a gross oversimplification of how Canada and Canadians as a whole understand the copyright/droit d’auteur divide. Yet it is also a useful categorization, insofar as it helps reconcile the divide between the English ‘skill’ and French ‘talent,’ in that the former is more labour-oriented, whereas the latter is more personality-oriented. Given the Supreme Court bench ordinarily comprises of three civil law jurists, this may in part explain how this ‘discrepancy’ came up. Since these civil law jurists come from Québec, and Supreme Court jurists from Québec almost unequivocally show complete command of the French language, a civil law-based standard that requires talent instead of habileté for original expression here is likely to find greater favour among those jurists of the bench who speak French. That this nuance would then show up in the terminology of the decision, intentionally or not, is therefore not all that surprising.

Whatever the difference’s origin, one crucial point about it remains: it is entirely possible that the language in which one reads CCH may influence one’s reading of the standard required of expression for it to qualify as original. If, as I show above, talent actually is understood as being one notch ahead of mere skill, then it follows that a judge of the Federal Court of Canada hearing a copyright action in Québec City in French may grasp a slightly different meaning from CCH than another judge hearing a similar action that same day in Vancouver in English. While the two meanings are hardly irreconcilable (and the shared meaning principles of R v Daoust, [2004] 1 SCR 217 would probably make short work of any differences between the two meanings, should the topic come up in court), the nuance is still a most interesting one to notice as a proxy for how different modes of legal thought and analysis operate and come together at the highest court in the land (or not, even when the Justices themselves claim they do).

Guillaume Laroche is a Graduate Student Member of IP Osgoode and an LLM candidate at Osgoode Hall Law School, where he researches issues on music and copyright.

The post Copyright: [Skill and/or Talent?] and Judgment appeared first on IPOsgoode.

At the Society for Music Theory’s , held October 27-30, 2011, in Minneapolis, I gave a poster presentation, “Striking Similarities: Quantifying Music Copyright Infringement”.  At the heart of my presentation was the problem that courts have of articulating a consistent standard of what exactly constitutes music copyright infringements, whether using the test of “substantial similarity” or not.

Music copyright infringement actions are said to be among the most unpredictable cases for lawyers. Little wonder, too; except in cases of glaringly obvious copying, the line between using a common musical device and borrowing a substantial portion of a prior work is anything but clear. Is a tune that sounds a little bit like another one copying and thus infringing copyright, or do both tunes just make use of elements common to the style? Such distinctions are not always immediately clear. As an additional barrier, our language, and thus the courts’, tends to be imprecise in terms of outlining different degrees of similarity on a spectrum. We can describe two things (musical or otherwise) as being similar, comparable, homogeneous, indistinguishable or somewhat alike, or we can talk about how they are dissimilar, rather distinct, or unalike; but there isn’t much middle ground available in terms of describing degrees of similarity or dissimilarity without using additional (and usually only vaguely helpful) qualifiers.

My project attempts to tackle this the above thorny legal problem by using various music analytical techniques and relating them to the application of copyright infringement. My approach starts with borrowing some techniques for measuring musical similarity from the field of music informatics—i.e., that discipline best known for bringing you Shazam, Pandora, Grooveshark, etc.—and seeing how some of its metrics for doing so could be useful in assessing music copyright infringement actions. Of course, there are some technicalities to work out; the above services tend to compare sound signals (i.e., recordings) rather than musical features in and of themselves, which stay constant across different recordings/performances of a work. With a little technical know-how, though, it’s possible to adapt the ideas of informatics to this new context. So, in sum, instead of trying to qualitatively describe (dis)similarity between two musical works, I propose we measure it.

I test my method by using a wide variety of prior caselaw on music plagiarism decided between 1910 and 1990 in the US. Each case supplies a pair of allegedly similar works, and a verdict by the court on whether the similarities of one work are substantial enough so as to infringe the copyright of the other work. Using these data, I apply my model for measuring similarity to the works under scrutiny, and correlate the results to the probability of a finding of infringement. My initial results show that while there is no ‘bright line’ standard of infringement, there is nonetheless a good degree of consistency in the caselaw as to what degree of similarity between two musical works constitutes infringement. With this degree of similarity numerically codified, it could potentially be much easier to make future judgments about the infringing nature of pairs of other vaguely similar musical works, getting some idea beforehand of if the similarity shown is nowhere near the infringement line, flirting with it, or clearly far beyond it.

That being said, this approach, if indeed it is applied to new music copyright infringement actions, should serve mainly to supply courts with additional information, as opposed to decide the case in and of itself. While language is functionally incapable of precisely distinguishing between two pairs of works that share 60% of their features in one case and 70% in the other, measurements succinctly offer this kind of information in an easy-to-understand format. By no means should this information entirely replace a circumspect examination of the plaintiff’s and defendant’s cases, a critical evaluation of the evidence, and expert testimony offered by qualified music scholars which is specific to the style of the works under consideration; rather, it should supplement it. Said otherwise, similarity metrics should exist as tools to aid the court in its work, not as arbiters of infringement in and of themselves. But if using them helps the court make more informed decisions, then perhaps we ought consider what their proper role in a court of law ought be.

The chance to engage in discussions with scholars who study musical similarity and relatedness for purely musical reasons as part of the Society for Music Theory’s conference was a welcome opportunity to reflect on further improvements to my model in a community well-versed in the problems of musical similarity. Although I am temporarily setting this project aside because my new research on music and copyright at Osgoode Hall Law School takes on more of a qualitative aspect than a quantitative one, I hope to publish a detailed version of my initial findings on this matter soon.

The post A Primer On Measuring Music Copyright Infringement appeared first on IPOsgoode.

Of all the great policy discussions that can be found in Ottawa on any given day, those seen last Friday, October 21, 2011, at IP Osgoode’s conference, “Can Canada Learn Anything From Europe? European Perspectives on Copyright Law in the Information Era” were certainly the best in town. Hosted in the newly-renovated Ottawa Convention Centre, it brought together over 100 academics, industry representatives, non-profit directors, civil servants, lawyers and law students, and an international audience of individuals attending via webcast. The conference was a tremendous success, and its timing especially apropos, given the introduction of , the Copyright Modernization Act, in the Parliament of Canada just a few weeks ago on September 29, 2011.

Within the great number of perspectives found in the remarks of academics, industry leaders and public institution chiefs, there was something for everyone to take back with them. Those who missed the conference can read the program, view the PowerPoint slides, and watch the webcast on IP Osgoode’s website (iposgoode.ca).

Dr. Giuseppina D’Agostino, Founder and Director of IP Osgoode and Associate Professor at Osgoode Hall Law School, kicked off the conference with welcoming remarks.  She stated, “We are bringing IP Osgoode to Ottawa to inject independent and authoritative perspectives into the IP debate.” As the conference summary below will show, authoritative perspectives were hardly in short supply, a real treat for all those in attendance.

Next followed a keynote address by Prof. Silke von Lewinski of the Max Planck Institute for IP and Competition Law. Prof. von Lewinski’s overview of the EU framework for copyright set the tone for the day, presenting the EU’s model for distinguishing its own and member states’ powers in administering copyright and the differences between copyright recommendations and copyright directives. For a Canadian audience unfamiliar with some of the European model’s more refined details, this was very much a necessary introduction in order to make sense of the rest of the day’s discussions. Prof. von Lewinski suggested several lessons for Canadian copyright throughout her presentation. First, she extolled Europe’s exceptions and limitations as having found the right balance between rights holders and users, and urged Canada to carefully revisit the relationship between Technological Protection Measures and exceptions and limitations. She also suggested that the EU’s system for compulsory music licensing, which is convoluted because it is required to deal with 27 different jurisdictions, should not be replicated on this side of the Atlantic. In sum, von Lewinski’s introduction showed both the depth and complexity of European copyright, yet did so without getting hung up in details, clearly articulating the current debates against those largely resolved past issues.

Having set up a basic context, the conference continued with panel discussions. Professor D’Agostino chaired the first panel, entitled “The Tortuous Path to Reform”. The panel discussed copyright reform, first hearing from European Commission intellectual property officer Denis Dambois about the rationale behind the Commission’s copyright policies and their relationship to trade. Italian Supreme Court Justice Vittorio Ragonesi then spoke on the practical importance of addressing the peculiar case of orphan works. Laws should allow “heritage institutions” such as public libraries to reproduce orphan works for archiving and other public interest goals in more straightforward ways via special exemptions, he argued. It’s worth noting that neither section 77 of the current Copyright Act nor the amendments proposed in Bill C-11 come close to dealing with orphan works in ways that would satisfy Justice Ragonesi. Finally, Queen Mary School of Law professor Jonathan Griffiths presented on the European exceptions and limitations framework. The common theme running throughout all speakers’ presentations was the nature of balance between compensated and non-compensated uses of copyrighted works. The takeaway message, that balance means something different to everyone, is not at all a new idea, but the discussion reified just how hard a question it remains to settle. Hearing the different perspectives—political, judicial and academic—reminded all that finding an answer to the balance question is particularly difficult when even agreeing on what the measuring stick for balance is a contentious debate in and of itself. Clearly, this is one issue that still has a lot of life left in it.

The second panel explored “Collective Licensing: Promises and Pitfalls” and was chaired by Dr. Carys Craig, Associate Professor of Osgoode Hall Law School and member of IP Osgoode. Eric Baptiste, chief of SOCAN and former head of CISAC in Paris, first reminded audience members that collective licensing bodies do a lot of good work. For his part, Dr. Martin Schaefer, a lawyer from Berlin, showed how online music licensing in Europe was currently a mess and urged that Canada find a different system. Prof. François Dessemontet of the University of Lausanne explored corporate governance in collective licensing bodies and presented some targeted ideas for reforming the system to address the worst abuses seen in collective licensing bodies across Europe. On the whole, it became clear that collective licensing bodies still have an important role to play in administering copyright; the question is how to optimally fulfill that role. If there is one thing that all panelists agreed on, it is that there is a lot of tinkering left to do before Europe reaches an ideal collective licensing system.

Session three asked, “Enforcement: Has it a Future?” and was chaired by David Vaver, Professor of Intellectual Property Law at Osgoode Hall Law School and member of IP Osgoode. The presentations began with Dr. Mihály Ficsor, former Assistant Director General of WIPO, who emphasized that enforcement is a system and that “there is no single method for successful copyright enforcement today”; rather, different mechanisms must work in combination with one another. Enforcement is also a two-way street, he suggested. While users must be held accountable for infringing uses, rights holders should not get off freely for knowingly making false or overbroad accusations about infringing activity. For his part, Dr. Giovanni Maria Riccio of the University of Salerno suggested that less reliance on public enforcement systems produces better results for all parties. This is due to the flexibility that the private enforcement mechanisms (which are developed to replace public ones) tend to offer. YouTube’s private copyright enforcement model, where rights holders can choose to either monetize internet infringement (by sharing in ad revenue) or request takedowns of infringing materials, was highlighted as a particularly good example of innovation in copyright enforcement. Finally, Ted Shapiro, of the Brussels office of the Motion Picture Association, brought the industry perspective on the importance of proper copyright enforcement in Europe.

The final panel, titled “Beyond Copyright: Contract and Commerce”, explored copyright-like agreements reached via contract and their uses and impacts in Europe. This panel was chaired by Prof. Victor Nabhan of the University of Nottingham, also President and Chair of the Association Littéraire et Artistique Internationale (ALAI).  Dr. Gillian Black of the University of Edinburgh stacked up fair dealing in copyright law against fair dealing in contract law, concluding that some contracts are used as work-arounds to European exceptions and limitations provisions. When such behaviour harms EU trade, she argued, it should be deemed anti-competitive and dealt with accordingly. Dr. Mindaugas Kiškis, of Lithuania’s Mykolas Romeris University, presented a perspective not all that often heard here in Canada: that of New Member States in the EU, who are, he argued, subject to the same EU copyright obligations without experiencing all of the same benefits as older “EU15” nations. For example, he asked, what are the benefits of signing on to mandatory online music licensing schemes when so little of Lithuania’s music is available there and such systems are not currently available in the national language? To close out the session, Ted Shapiro returned to offer some thoughts on multi-territoriality licensing agreements and their numerous complexities.

The conference concluding with closing remarks from Prof. Victor Nabhan, who summarized the day's highlights and lessons learned with humour, elegance and aplomb.  He reminded us that, "Without authors' proper protection, less work would be accessible and hence less material would be enjoyed."

Throughout the day, debate on issues remained animated during the question and answer sessions between speakers and audience members, and amongst the speakers, too. For example, Dr. Mindaugas Kiškis questioned the statistic proffered by Prof. Silke von Lewinski and Dr. Ficsor to the effect that in Europe there has been only one complaint regarding Technological Protection Measures. Dr. Kiškis noted that users may not be aware that complaints should be addressed to certain bodies, meaning that official statistics may not be reflective of the current situation experienced by users.

In all, the day covered a broad spectrum of issues directly pertinent to the Canadian context. In a world where Canada is negotiating international agreements in which copyright clauses figure prominently (like ACTA and the EU-Canada free trade deal), multi-jurisdictional copyright issues may soon surface as the next hot topic in Canadian IP law. The issue may even surface sooner than expected, given that Bill C-11 proposes the ratification of the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty, which Canada originally signed but has so far failed to ratify; in this light, Europeans’ advice on how to manage multi-jurisdictional copyright negotiations and disputes may well soon be heeded in Ottawa. Looking at the conference as a whole, one thing was clear: regardless of what happens with Bill C-11, Canadians certainly have a lot to learn from Europeans on copyright.

The post Europe Visits Canada: What European Copyright Law Has To Offer appeared first on IPOsgoode.