The Canadian Internet Policy and Public Interest Clinic has issues a comprehensive study on privacy and DRM that reviews the use of DRM in 16 different digital products and services, finding that many pose threats to privacy.

My weekly Law Bytes column (Toronto Star version, Ottawa Citizen version, homepage version) focuses on last month's Copyright Board decision that re-opens the door to placing a levy of up to $75 on iPods as part of the private copying levy.  I note that the case may create a sense of déjà vu, since it marks the second time that the Canadian Private Copying Collective, the collective that has pocketed more than $150 million from the levy since 2000, has sought to include iPods within the levy system.  It first introduced an iPod levy in 2003, only to have the Federal Court of Appeal strike it down as the court declared that "it is for Parliament to decide whether digital audio recorders such as MP3 players are to be brought within the class of items that can be levied. . .as [the law] now reads, there is no authority for certifying a levy on such devices or the memory embedded therein."

Notwithstanding the Court's unambiguous language, the CPCC reintroduced the iPod levy earlier this year, arguing that the MP3 player comments were "obiter"(a legal reference to a passing remark that does not form a necessary part of the court's decision). Canadian retailers and storage media companies unsurprisingly challenged that interpretation, leading to last month's ruling that sided with the CPCC. The Copyright Board did not mince words, suggesting that the levy could also be applied to cellphones and personal computers, and warning that excluding the iPod from the levy system would "instantly makes the conduct of millions of Canadians illegal, and even possibly criminal."

The decision will presumably be appealed, virtually guaranteeing years of litigation that promises to divert millions of dollars earmarked for artists to lawyers instead. While the legal challenges are important, the political repercussions carry greater significance since they may lead to dramatic changes to both the levy and the Copyright Board.

The Associated Press has picked up on a story involving public access to images in the Smithsonian Institution.  Public.Resource.Org has posted 6,288 images currently sold by the Smithsonian on Flickr (a book of the images can be downloaded for free from Lulu.com), arguing that the U.S. institution is overreaching by claiming copyright or control over images that are in the public domain.

The issue is an important one that should also resonate in Canada.  Some readers may recall the battle between a small school division in Manitoba and the National Gallery of Canada over fees levied for a public domain Paul Kane painting. In the wake of that incident, I've been working with some students to identify how Canadian museums address access to public domain works in their collections.  The research is not yet complete, however, the preliminary news is not good. 

Museums are strapped for cash and therefore use their physical control over images to levy fees over public domain works.  While a cost-recovery fee for digitization or administration is understandable, many institutions go much further charging "surrogate copyright fees" or "user's fees" for public domain works or deploy technology to limit the potential uses of digitized versions of those works. 

For example, consider Emily Carr, whose work entered the public domain in 1996.

The hot video of the week is the remarkable mash-up of the Apple 1984 advertisement, which in its new incarnation stars Hillary Clinton and promotes Barack Obama.  The video has been viewed more than two million times and received considerable mainstream media news coverage.  An Associated Press story caught my attention as it discussed the prospect of Apple suing the creator of the Clinton version.  The article concludes that a suit is unlikely, given the strong fair use protection for political speech.

That may be true from a U.S. perspective, but would the same analysis apply in Canada?  It's a question that needs an answer since the importance of this form of political speech is likely to grow on both sides of the border and with an election on the horizon, there is every reason to believe that we will see creative clips featuring Canadian political leaders.  Much like the minor controversy involving the Conservative Party's attack ads on Dion, which raised questions about copyright clearances, it is by no means certain that a Canadian version of the Clinton ad would be protected.  Given our limited fair dealing provision, it would be difficult to bring the ad within the boundaries of research, private study, criticism, or news reporting.  Indeed, the closest exception is parody, however, Canada does not have a parody exception.  This form of political speech should surely enjoy protection, yet Canada's policy makers have been so focused on unnecessary DRM provisions, that we've neglected the reforms that really matter.