As I’ve just mentioned, Mincov Law Corporation has just celebrated its first birthday.

Not only do I have tons of great friends among founders and co-founders of Vancouver tech startups, I know the challenges surrounding running a startup firsthand.

For many startups the cost of getting a trademark through a trademark agent may be prohibitive, so they end up without a trademark or with a poorly drafted trademark application.

I want to extend a helping hand and announce that throughout September of 2012 Mincov Law Corporation will be offering its most comprehensive trademark registration package valued at $3,500 + HST to any business that has been incorporated for less than 2 years in Canada for only…

Become the next , or for half the price in September!

I have been fighting against unauthorized use of other people’s music, software and movies for more than 18 years.

However, I also am very much aware of the ease with which one may download pretty much anything today – for free and often more useable compared to the legitimate copy (greetings, DVD menus and advertising).

Once you’ve been using a cracked or a ripped file without any issues, it is very difficult to force yourself to shell out hard earned money for something that would not result in any positive change in how we use the software, listen to the music or watch the films.

I also know that most people would prefer to own legitimate copies of the stuff they have on their computers if somehow miraculously they didn’t have to pay for it, at least to the extent that their user experience wouldn’t be worse off compared to what they’ve had with the file they leeched off a torrent.

Financial incentives are often more convincing than words.

This is why it is my pleasure to announce that starting September 1, 2012 every new client of Mincov Law Corporation will be receiving Anti-Piracy Reward Certificates.

The idea is simple:

1. become a client of Mincov Law Corporation;

2. receive valuable legal advice and outstanding customer service;

3. get a reward certificate;

4. buy legitimate software, music or movies;

5. receive a cheque from your lawyer.

The certificates may be regifted.

And think of it, doesn’t it sound great: “I just got my lawyer pay for my music”?

Please comment and share if you like the idea.

On July 12, 2012, the Supreme Court of Canada issued its reasons in five copyright cases: Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), Re:Sound v. Motion Picture Theatre Associations of Canada, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, and Society of Composers, Authors and Music Publishers of Canada v. Bell Canada.

The results, while quite predictable, are very disappointing for someone who values individual rights, freedom and capitalism.

Howard Knopf in his post, A Proud and Progressive Pentalogy Day in Canadian Copyright Law has provided a brief outline of what the five cases stand for. It’s a good summary of what the cases stand for, but I squarely disagree with Mr. Knopf on his conclusions. My issues with his position start with the title, namely the use of the word “progressive”. I trust that the use of it is intentional and is in reference to the progressive movement. You may or may not agree with Glenn Beck, but the important question to ask when using the word progressive, even outside the political context is, “what are we progressing to?”. In my opinion, we are progressing away from a system where interests of the individual trump interests of the society and towards a system where interests of the “society”, expressed by whoever has the power to claim to be in position to represent such interests, trump interests of each particular individual making up that “society”. This never ends well.

Leaving the technicalities for a future post, I have three big problems with the 5 decisions.

My biggest problem is with paragraphs 9 and 10 of the Bell case, where the Court unanimously held that:

[9] Théberge reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace: see e.g. Bishop v. Stevens, [1990] 2 S.C.R. 467, at pp. 478-79. Under this former framework, any benefit the public might derive from the copyright system was only “a fortunate by-product of private entitlement”: Carys J. Craig, “Locke, Labour and Limiting the Author’s Right: A Warning against a Lockean Approach to Copyright Law” (2002), 28 Queen’s L.J. 1, at pp. 14-15.

[10] Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain. As noted by Professor David Vaver, both protection and access must be sensitively balanced in order to achieve this goal: Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 60.

This is exactly the problem with the current trend. I strongly believe that interests of the public should be completely irrelevant to copyright laws and copyright policy. Whether copyright laws provide any benefits as a “fortunate by-product” or they actually hurt the public does not really matter. What matters is whether those who create something that had not existed before have a chance to offer it to the public on THEIR terms, rather than being forced in a situation where they should either not disclose it to the public or expect the public to dictate such terms.

Notice the difference between a situation when the market forces a manufacturer to lower prices not to be squeezed out by the competition (as in copyright owners voluntarily adopting new models depending on granting access to their works for free) and a situation when the government adopts laws that say that those who really want or need to use the manufacturer’s product are entitled to steal from the manufacturer, but no more than 20% of the manufacturer’s total output (as in the government telling copyright owners they cannot sell their works because the public should have the “user right” to use them for free).

No matter what the Supreme Court of Canada says, copyright is not about access. It’s not about dissemination. It’s not about the royalties. The only thing that copyright is about is control. Take away control and you have slavery, because then the author is in no position to decide on which conditions to offer the results of his work to others. Whether it’s the public, the government or the collective society that decides it – it’s not the most important person in the equation, the author and the copyright owner.

My second big problem is that all five cases regarded copyright in the context of tariffs. Based on the false premise that copyright is about royalties, the Court seems to have used the following logic: “We have all these tariffs. If we decide that this action involves the use of this right recognized by the Copyright Act, then it would mean that it would fall under this or that tariff. Would that be a fair result?”

I understand that the cases WERE about tariffs, and that tariffs are an integral part of the copyright regime in Canada, but tariffs are merely an extension of exclusive rights that authors are supposed to voluntarily delegate to collective societies. Just because a collective society adopted a tariff royally approved by the Copyright Board does not create or destroy exclusive rights.

In Supreme Court’s reasons, however, the underlying assumption seems to be that the only purpose of authors’ existence is to provide an opportunity for the collective societies to apply tariffs.

This goes back to the priority of the interests of an individual over the collective.

Finally, Supreme Court further expanded fair dealing. Not only did it endorse the horrific idea of “user rights” previously found in CCH, it went far and beyond by removing even those scarce limitations of what the public could do to exclusive rights of copyright owners if the public feels like it.

In my opinion, most categories of fair dealing should be reduced to presumptions, which a copyright owner can rebut by declaring that the copyright owner does not grant the right to use his works for such purposes that the Copyright Act presumptively considers “fair”.

For example, why do we assume that a library should have the right to carry every single book it feels would benefit the community? Why cannot there be a situation when a copyright owner chooses to disallow libraries to carry the copyright owner’s books? This would happen in dismally small number of cases, so fair dealing would play the role in facilitating the dealings that are supposedly fair. But just because most copyright owners would be OK with such use does not mean that ALL of them would be. Individual rights are not about averages, they are about individuals.

Very seldom a use is truly fair if the copyright owner openly opposes it.

Same goes for the education. Why do we assume that the purpose of educating the next generation of students justifies robbing the current generation of authors and copyright owners of their right to decide if they want to allow teachers to distribute copies of their works to students without paying for it?

In summary, this is a very sad day for Canada. Not because greedy collective societies and big corporations will be able to grab less cash from the “working people” and the “less fortunate among us”. Not because a certain provision of the Copyright Act was interpreted to mean one thing, and not the other.

It is a sad day because it confirms the shift in the paradigm – from protecting individual rights against being infringed by other individuals or the mob, we are “progressively” drifting to laws that are subjecting rights of each individual to the mythical interests of the “whole”.

I have not only studied history, I’ve lived the socialist nightmare. Those of you who think that government-sponsored mass murders can never happen in Canada, think again.

No, just because the Supreme Court of Canada recognized that the fair dealing exception for the purpose of private study also covers non-private study will not be the cause of the government rounding up millions of Canadians and shooting them in the head. But that’s what progressivism is all about. Slowly changing the paradigm. Slowly robbing individuals of their rights… until one day they realize that ALL of their rights are now subject to whether they benefit the rest of the “collective”.

Those cheering today for the victory of the “users” are cheering for their own destruction as holders of individual rights, whatever these rights may be.

Many people find it ironic when I say that Canada tends to have very little respect for intellectual property.

Hinting on my Russian background, they counter, “Yeah, right, how about this huge Russian torrents website, where you can get pretty much anything you want for free and with impunity?”

Indeed, this may seem like a contradiction at the first sight. However, not really.

While Russia’s piracy rates are huge, I’ve always felt that there the majority of people know that they are doing something wrong when they are downloading other people’s works without authorization. It’s more of an “I’m a bad boy, and I know it” kind of attitude.

Things are different in Canada. Here, the attitude is: It benefits the great majority of the public to have free access to this work, hence it should not be illegal for me to download it, even if the copyright owner protests.”

While taking something that belongs to another without permission is bad enough, I strongly believe that it is much worse to do it under the false pretense that there is nothing wrong with doing it.

It’s bad enough when a bully takes away a toy from a child. It’s much worse when the bully’s parents find a myriad of reasons why it was OK for the bully to do it and why the child should have shared the toy with the bully in the first place.

This is a repost of my article that I published at MINCOV.COM on June 9, 2010.

In my article “Why Courts Should Not Allow the Parody Exception to Make a Parody of the Copyright Law”, I shared my view on why I believe that the circumstances in which one should be permitted to use a preexisting work, without authorization, for the purposes of parody, should be extremely limited. That article was based on a law suit brought by J.D. Salinger against a Swedish author whose work was a blatant attempt to parasite on a famous work.

Through a weird and symbolic coincidence, on the same day when the Canadian Government tabled the Copyright Modernization Act that includes the controversial “parody and satire” exception, LatmaTV posted on YouTube a parody ridiculing the support that the world is offering to the so-called “peaceful” Free Gaza flotilla.

To me, it was the perfect opportunity to test my own convictions, for the reasons that follow below.

1. I believe that it is a brilliant parody.

2. I believe that the cause behind the parody is righteous and deserving of support.

3. I recognize that a lot of work and creativity must have gone to create the parody (write the lyrics, distribute roles, record the song and shoot the video) and that it has great transformative value.

4. I believe that freedom of expression (speech) is of utmost importance.

5. Because I like the parody and because I think it serves the right cause, I have an urge to allow as many people to see it.

6. It is not inconceivable that the values of those who took part in creation of the original “We Are The World” video and of those who currently own the rights in the original song and in the original video would hold views that are diametrically opposed to those who call for public condemnation of Hamas and for support of Israel.

The question I asked myself was, if I was a judge who was not restricted either by the parody exception or by its absence, with all the views that I hold, if I was to decide on a claim of copyright infringement by the copyright owners against the parody makers, requesting a permanent injunction that could magically be so efficiently enforced throughout the Internet and other media, that I would cause the parody to become completely inaccessible worldwide forever if I decided that the parody was infringing – how would I decide the case?

I must admit that these were some terrible moments when I was trying to reconcile my seemingly opposing principles by trying to find a middle ground. However, I did not engage in this enterprise to look for easy answers. That is why I made sure that I could not get away with pronouncing the parody to be an infringement in the hope that my decision could not be efficiently enforced, so I could allow the parody makers a chance to look as heroes going against the system twice – first, by opposing the Israel-hating world, and second, by opposing copyright laws that tend to protect “the wrong people”. Hence the requirement that if I rule in favour of the copyright owner, then – without regard to additional requirements that usually surround granting of injunctions – I should erase the parody from existence, forever.

Finally, I convinced myself to disregard the issue of where I stand politically on the flotilla issue, and to return to the principles.

In principle, I agree with the decision in Michelin^1., where the Federal court cited New Brunswick Broadcasting Co. Ltd. v. CRTC^2., in which Justice Thurlow wrote:

“The freedom guaranteed by the Charter is a freedom to express and communicate ideas without restraint, whether orally or in print or by other means of communication. It is not a freedom to use someone else's property to do so. It gives no right to anyone to use someone else's land or platform to make a speech, or someone else's printing press to publish his ideas.”

No one's freedom of expression should trump individual rights (including property rights) of others. It would not be a justification for a terrorist who had taken hostages to claim that he only did so to tell the world about whatever cause he is pursuing, even though it is arguably one of the most efficient ways to make the world listen. It would not be a justification for an activist who set someone's car on fire to claim that he only did it to demonstrate his inner convictions of the evils of capitalism. In the same vein, using someone's intellectual property should not be justified by whatever noble political ends that the unauthorized user is pursuing.

On the other hand, as many have rightfully noted, using someone's work does not destroy it (as in the case of a burnt car) and may not necessarily have any serious consequences for the copyright owner (as would be in the case of being taken hostage). Should this change anything?

I would say that if it changes anything, it would be the degree of moral justification for the copyright owner to make a claim that would stifle the parody. Everyone should be justified to ask that the copyright owner not make the claim and to act accordingly (by exposing the copyright owner's viciousness, by instituting private boycotts or otherwise), if the owner does nevertheless make such a claim.

But once that claim is made, in other words, once the copyright owner has decided that his rights to the preexisting works are more important to him compared to the public outrage that would ensue, the copyright owner's claim should be no different from the claim of a burnt car's owner.

If I were to write the decision in such a case and if I were not bound by existing laws but only by my philosophy, this is what I would say:

“It is beyond reproachful that the copyright owners should wish to stifle such a socially important parody, but it is their right to determine the terms on which their property is used by others, and I have no choice but to grant the permanent injunction.”