UPDATE: The National Post reported on the Canadian Bar Association’s C-32 submission covered in this post and the positions of the CBA and leading IP practitioners. According to the National Post:
“The lawyers who complained to the CBA [about the] document…[i]n their Feb. 21 letter, [offered] 16 examples where the CBA submission uses language that is substantially similar, and often identical, to that used in blog postings made by Mr. Geist.
In her March 1 letter, Ms. Ernst [the current CBA President] acknowledges those similarities, but denies they are the result of unauthorized use or ‘passing off.’ Instead, she explains that Mr. Geist had worked with the earlier version of the committee and provided direct input on earlier drafts. Mr. Geist confirmed that version of events on Tuesday.
‘He and other expert practitioners and academics participated in the drafting of this submission,” Ms. Ernst writes. “There is nothing intellectually dishonest about this.'” (emphasis mine)
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MTP readers will remember that we have written about copyright issues in Canada from time to time, particularly insofar as they affect American songwriters or recording artists online. Also, MTP readers will no doubt remember my post Was the Canadian Bar Association Submission on Copyright Reform Actually Policy Recycling or Merely Plagiarism? (May 25, 2011). This sad tale is an illustration of how a fine organization may have been the unwitting victim of “copyright policy laundering.” Caution—facts are still coming out.
In a nutshell, the problem is that the Canadian Bar Association wrote and released a controversial “submission” largely opposing an earlier version (Bill C-32) of the current Canadian copyright reform bill (Bill C-11). That submission took a position that was very reminiscent of Professor Michael Geist’s own writings. Very reminiscent. Since Bill C-11 as recently introduced in the Canadian Parliament is nearly identical to Bill C-32, the CBA submission on Bill C-32 is still relevant.
After the publication of the CBA submission last year, Mr. Geist noted that:
“The Canadian Bar Association, which represents 37,000 lawyers, law professors, and students from across the country, has released an important submission on Bill C-32. The submission, which was approved as a public statement by both the National Intellectual Property and the Privacy and Access Law Sections of the CBA, does a nice job setting out the debate over Bill C-32 (I was once a member of the CBA’s Copyright Policy section but was not involved in the drafting of the Bill C-32 document).” (emphasis mine).
UPDATE: But note that we now have independent confirmation from the National Post quoted above.
We caught a curious spelling mistake in the CBA paper (an incorrect reference to the U.S. “Registrar” of Copyrights as opposed to the correct title “Register of Copyrights”), a mistake that seemed to come from Mr. Geist’s own writings but would not be caught by spell check. So we looked further in the CBA submission for quotations from Geist’s writings. We found a bunch. And posted them in the May 25 blog, inviting someone to explain how these pages of quotations got used without attribution. No one did.
Until recently. We have a copy of a February 21, 2012 letter from 34 leading Canadian intellectual property professors and lawyers addressed to the CBA President that calls into question the provenance of the CBA submission on Bill C-32. The signers of the letter to the CBA state that Mr. Geist was apparently quoted without attribution sufficiently that they are willing to call the CBA’s attention to this controversial submission (at page 2):
“In particular, large passages of the Submission consist of extensive amounts of material apparently copied directly from the blog of Professor Michael Geist. These passages, constituting hundreds of words, are directly reproduced in the CBA Submission with no attribution and no quotation marks to indicate that the passages have been copied wholly from another source. While citations are given for other sources, none are given for these extended, directly-quoted passages. In the entire 36-page Submission, no citation whatsoever accompanies any of these apparently copied passages, which are detailed in an attachment to this letter. In fact, the CBA Submission does not contain a single citation to any of the blog posts from which large part of it appear to have been copied….
Ironically and unfortunately, the original author of the apparently plagiarized passages in the CBA Submission has subsequently cited them as evidence that the CBA, at least in part, concurs with the views that he originally espoused. Instances of such uses of the copied passages in the CBA Submission in support of specific instances in the copyright reform process are detailed in [an attachment to the letter]. Such uses give rise to an appearance that the CBA has been employed as a vehicle for what Prof. Geist himself has labeled ‘copyright policy laundering’.”
The Canadian Bar Association responded to the practitioner letter:
“There is no doubt that similarities exist between blog posts by Professor Geist and quotations from the submission. Professor Geist provided input directly to early drafts of the submission through his past membership in the Copyright Policy Committee. I am satisfied that there was no unauthorized use [which one could fairly presume to mean that the use was authorized by the original author] and no “passing off”. He and other expert practitioners and academics participated in the drafting of this submission. Varying views were sufficiently persuasive to be incorporated into the submission and emulated clearly in its language. There is nothing intellectually dishonest about this. It is precisely the process contemplated by the procedures of the CBA with respect to our legislation and law reform initiatives.” (emphasis mine)
So Professor Geist says he “was not involved in the drafting of the C-32 document.” Yet the Canadian Bar Association says—and I am more than prepared to take them at their word—he “provided input directly to early drafts of the submission” and “[h]e [and others] participated in the drafting of this submission.”
Is it just me, or do these statements appear to contradict each other? You will need to draw your own conclusions and certainly read each statement in context. But it sure seems that way. I’m always willing to be educated otherwise. Hopefully it won’t take nine months next time.
Music Technology Policy 