Leading Up To The GCIP: A Chat With Michael Geist

Click to read the blog post originally published on Global IP Congress website on December 12, 2015.

Profile: Dr. Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law. He will be giving a keynote address during the inaugural plenary session scheduled for December 15^th.

JMM: The UK recently made a major push towards open access after the recommendations of the Finch Report dealing with expanding access to research publications. The major thrust of the Finch Report is towards sustaining an open access model through Article Processing Charges (APC) as opposed to other alternatives such as Advertisement/Sponsorship based model or the subsidy-based model. This has raised concerns over predatory open access journals using APC which are said to undermine peer review and privilege wealthy universities and grant holding scholars. What do you think are the implications of following such a model for the open access movement at large?

MG: I have real concerns about the APC model, which may price open access out of the hands of many scholars. We need experimentation with different open models, recognizing the economic uncertainty of switching away from high priced subscriptions. However, APC may entrench much of the current model and is among the least desirable (though increasingly common) publisher approaches to OA.

JMM: One of the barriers to open access in Canada was the lack of campus support towards open access. You have written that even as many of the world’s top universities adopt open access strategies, universities in Canada remain reluctant to follow open access mandates. What explains this reluctance to open access among universities and is it something found in other parts of the world as well?

MG: We are starting to see more movement towards OA in Canada. Part of this is driven by our federal granting councils, which have emphasized OA requirements within their guidelines. I think there is also a growing recognition of the scholarly benefits of OA. That said, there are still many scholars who pay little attention to the publishing contracts they sign and the restrictions that may be imposed on their work through their choice of journal. This is an ongoing education issue, particularly for senior scholars, who may still be unfamiliar with OA issues.

JMM: In early 2013, the University of Ottawa Press released “The Copyright Pentalogy: How the Supreme Court of Canada shook the foundations of Copyright Law” in open access. The book was one of the most accessed on the University of Ottawa Press website and in less than 6 months of release was top among 35 books on page views. Writing about the book, you noted that the book was also a top seller in the University webpage in spite of being available for free. Over the last few years, many more of such examples have surfaced. Is open access actually not at odds with commercial sales as commonly understood?

MG: I think open access works hand-in-hand with commercial sales. Indeed, in some instances, it may increase sales. I have long come from the position that there are three potential purchasers of my books. The first group – librarians, people focused on digital issues, etc. – will buy the book regardless of whether it is freely available online. There is a second group that might have purchased the book, but chooses not to do so because there is a free version available. This group represents a financial loss. There is a third group, however, who would not have purchased the book or even been aware of it, but find it through open access. This group may decide it likes what it has read and will buy the book. If group three is larger than group two, the publisher ends up ahead. In fact, the third group doesn’t even need to be larger, because the publisher may be able to use OA to cross-sell other publications. Note that the fourth group – those that would not buy the book but choose to download it – do not factor into this analysis because this group would never have been purchasers.

JMM: Recently you wrote about an Ottawa Court ruling asking a man to pay damages amounting to $13,470 for circumvention of a digital lock. The case involved a man who received from his friend an online publication that he had not subscribed to himself. Apart from Canada, United States of America has strict anti-circumvention rules under the Digital Millennium Copyright Act (DMCA) which makes it illegal to circumvent technological protection measures irrespective of whether or not the reasons for doing so are perfectly legal or non-infringing. Further the TPP under Article 18.68 provides for legal protection against circumvention of effective technological measures without reference to any exception for legal or non infringing use just as in the DMCA. In the light of active endorsement of such measures from certain quarters of the developed world do you think such measures could become a global norm that developing countries may soon be forced to adopt?

MG: There is a real danger of this occurring. The US has aggressively pressured others to implement restrictive anti-circumvention rules. These rules often go well beyond those required by the WIPO Internet treaties. This is a significant problem that cuts across all economies, both developed and developing.

JMM: Almost a year back, there were reports indicating that Canada was the leading opponent of the IP chapter in the Trans-Pacific Partnership. However a year later the negotiations have been completed and parties have agreed to the same text. According to you, what helped quell the Canadian dissent to contentious areas such as extension of the term of copyright protection, criminal liability for copyright infringement among others? Further do you think the victory of the Liberal Party in the just concluded elections will force a rethink on the TPP?

MG: Earlier leaks did indeed indicate that Canada opposed many provisions in the IP text, reflecting differences between Canadian and U.S. copyright law. On several issues, Canada caved (such as term extension). Given the secrecy associated with the negotiations, it is hard to know precisely why certain provisions ended up the way they did. However, the final text suggests that IP was not a top Canadian priority, other than preserving the notice-and-notice system.

As for the change in government, I think Canada will sign the TPP alongside other signatories, but conduct an extensive review of the treaty before deciding whether to implement it. Whether it moves forward likely depends more on what happens in the U.S., where there appears to be significant opposition from some presidential candidates and members of Congress

JMM: Article 18.66 of the TPP deals with Balance in Copyright and Related Rights system. The article allows countries to achieve a balance in copyright and related rights system by crafting exceptions or limitations ‘giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’. Do you think this article is drafted broadly enough to allow meaningful fair use? Further, article 18.65, to which 18.66 is subject to, states that exceptions permitted under the TRIPS, Berne Convention, WIPO Copyright Treaty and WIPO Performance and Phonograms treaty shall apply to TPP as well. The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled is absent in Article 18.65 but is present in a footnote referencing to the exception of ‘facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’ in Article 18.66. What do you think explains this treatment of Marrakesh Treaty and what will its implications be?

MG: I do think that the TPP allows for fair use. However, it does not require fair use, which suggests that many other countries may not implement it.

There is definitely a double standard with respect to international copyright treaties in the TPP. Where the treaty is viewed as a rights-oriented treaty, it is a requirement. Where it is a user-oriented treaty such as Marrakesh, it is optional.

[1] Dr. Geist has written numerous academic articles and government reports on Internet and Technology and is a syndicated columnist on technology law issues with his regular columns appearing on the Hill Times, the Tyee and the Toronto Star.

He is the editor of several copyright law books including “The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law”, “From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda”, and “In the Public Interest: The Future of Canadian Copyright Law” along with being the editor of several monthly technology law publications and author of a popular blog on internet and intellectual property rights.

Dr. Geist serves an the director and on advisory boards of several Internet and IT law organizations including the Canadian Internet Registration Authority, the dot-ca administrative agency, the Canadian IT Law Association, Watchfire, and Verifia. He is Chair of a global Internet jurisdiction project for the American Bar Association and International Chamber of Commerce. He is regularly quoted in the national and international media on Internet law issues and has appeared before government committees on e-commerce policy

More information can be obtained at http://www.michaelgeist.ca/.