Sookman federal circuit_internet_and_copyright_

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Sookman federal circuit_internet_and_copyright_

  1. 1. McCarthy Tétrault LLP / mccarthy.caMcCarthy Tétrault LLP / mccarthy.ca Significant Recent Developments: Internet and Copyright Trade and Intellectual Property Issues in Global Recovery Economies: Best Practices Barry B. Sookman bsookman@mccarthy.ca 416-601-7949 September 17, 2013
  2. 2. McCarthy Tétrault LLP / mccarthy.ca ¬ Canada has same challenges as U.S. in grappling with digital/internet copyright issues. ¬ Similar technological capabilities and services, though Canada often lags the U.S. ¬ Canada is a member or contracting party to key copyright conventions and treaties including Berne Convention, Rome Convention, and WIPO Internet Treaties (Canada is in process of ratifying the WIPO Treaties) ¬ No SOPA/PIPA. ¬ Canada’s legislative and judicial approaches to copyright have differences. Introduction
  3. 3. McCarthy Tétrault LLP / mccarthy.ca ¬ Federal government has constitutional jurisdiction over copyrights. ¬ Courts had never developed any copyright pre- emotion doctrine until Reference re Broadcasting Regulatory Policy CRTC 2010 167, 2012 SCC 68 ¬ S.89: “No person is entitled to copyright otherwise than under and in accordance with this Act or any other Act of Parliament, but nothing in this section shall be construed as abrogating any right or jurisdiction in respect of a breach of trust or confidence.” Introduction (Cont’d.)
  4. 4. McCarthy Tétrault LLP / mccarthy.ca ¬ Very significant recent developments in copyright in Canada. Copyright Modernization Act proclaimed in force November 2012, after failure of Bill C-60 (2005), C-61 (2008), C-32 (2010). ¬ Since 1997 there had been 12 government, department, and committee reports making recommendations for reform to address digital issues. ¬ Canada’s international reputation had suffered ¬ EU, Assessing the Costs and Benefits of a Closer EU- Canada Partnership: A Joint Study by the European Union and the Government of Canada, October 2008 ¬ USTR, Special 301 Reports Introduction (Cont’d.)
  5. 5. McCarthy Tétrault LLP / mccarthy.ca Legislative Developments: Pre-CMA to Address Digital Issues Tools to Address Digital Piracy Status Trading Partners Status Canada WIPO- protect TPMs G20 strong protection against circumvention of TPMs and trafficking in tools used for circumvention n/a WIPO-making available right G20 all have enacted right; used in EU against Pirate Bay, Newzbin and other sites. n/a WIPO-protect rights management information G20 all have enacted right n/a Notice and takedown • De facto standard in the EU and other countries that permit service providers to rely on hosting exceptions only if they remove or disable access to infringing content when they have knowledge of infringement. • Finland, Iceland, Australia, Singapore, U.S.: formal notice and counter-notice system n/a Notice and notice backed up by a graduated response system • Enacted in Taiwan, South Korea and Japan (cell phones) • N.Z. and France • U.S/Australia: ISPs must have and implement a policy to terminate accounts of repeat infringers n/a Accessorial (secondary) liability • EU- e.g. France, Germany, Netherlands, Finland: strong laws which impose liability if intermediaries do not take effective and appropriate measures to combat infringement. • Australia-expanded authorization (examines (i) if there is power to prevent infringement and (ii) reasonable steps were taken to prevent or avoid it). •U.S.-liability based on (i) inducement, (ii) contributory liability (actual or constructive knowledge and materially contributing to infringement); or (iii) vicariously liability (profiting from direct infringement while declining to exercise a right to stop or limit it). Accessorial liability potentially to (i) inducement, and (ii) acting in concert. Ability to obtain injunctive relief against intermediary • EU Copyright Directive Article 8(3) • U.S. DMCA (more limited) n/a Service provider safe harbors • EU e-Commerce Directive • U.S. DMCA n/a
  6. 6. McCarthy Tétrault LLP / mccarthy.ca Legislative Developments: CMA ¬ WIPO: making available right, distribution right, and TPMs ¬ Enablement ¬ Exceptions for ISPs ¬ New private use exceptions ¬ Format shifting exception ¬ Time shifting exception ¬ User generated content exception ¬ Back-up copies ¬ New fair dealing exceptions for parody, satire, and education ¬ Statutory damages ¬ Other new exceptions ¬ Computer program interoperability ¬ Encryption research ¬ Computer and network security assessment ¬ Temporary reproductions for technological processes
  7. 7. McCarthy Tétrault LLP / mccarthy.ca The CMA TPM Provisions Compared to the US and EU Provisions Country Act of Circumvention - Access Control Technological Measure Act of Circumvention- Copyright Control Technological Measure Circumvention Tools- Access Control Technological Measure Circumvention Tools- Copyright Control Technological Measure Criminal Sanctions United States Prohibited (§ 1201 (a)(1)) Not prohibited (by DMCA) Prohibited (§ 1201(a)(2)) Prohibited (§ 1201(b)) §1204 EU Copyright Directive Prohibited (Art. 6(3); Art. 6(1)) Prohibited (Art. 6(3); Art. 6(1)) Prohibited (Art. 6(3); Art. 6(2)) Prohibited (Art. 6(3), Art. 6(2)) Remedies must be “effective, proportionate and dissuasive”. (Art.8) Canada Prohibited Not Prohibited Prohibited Prohibited Criminal sanctions in Commercial Cases
  8. 8. McCarthy Tétrault LLP / mccarthy.ca Enablement 27(2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service. 27(2.4) In determining whether a person has infringed copyright under subsection (2.3), the court may consider (a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement; (b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement; (c) whether the service has significant uses other than to enable acts of copyright infringement; (d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so; (e) any benefits the person received as a result of enabling the acts of copyright infringement; and (f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement. Industry Canada Fact Sheet: “The Copyright Modernization Act sends a clear message that copyright infringement is unacceptable. It recognizes that the most effective way to stop online copyright infringement is to target those who enable and profit from the infringements of others. By allowing copyright owners to pursue these "enablers", such as illegal peer-to-peer file sharing sites, this bill supports the development of significant legitimate markets for downloading and streaming in Canada. This supplements existing criminal punishments for those who aid and abet infringement.”
  9. 9. McCarthy Tétrault LLP / mccarthy.ca Safe Harbors for ISPs CMA has four safe harbors for ISPs: 1. A network services exception (ss. 31.1(1)) 2. A caching exception (ss. 31.1(2)) 3. A hosting services exception (ss. 31.1(4)) 4. An exception for information location tools (search engines) (ss. 41.27) • No notice and takedown; but “notice and notice” system (not in force yet) • The network services, hosting, and ILT exceptions are broad but do not apply if the service provider is liable for enablement. Veoh, YouTube, and isoHunt cases?
  10. 10. McCarthy Tétrault LLP / mccarthy.ca Format Shifting (s.29.22) Industry Canada FAQ: “The bill will allow "format shifting." Consumers will be able to copy legally acquired music onto devices that they own, provided that it is for private, non-commercial purposes and does not break a digital lock. 29.22 (1) It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if (a) the copy of the work or other subject-matter from which the reproduction is made is not an infringing copy; (b) the individual legally obtained the copy of the work or other subject-matter from which the reproduction is made, other than by borrowing it or renting it, and owns or is authorized to use the medium or device on which it is reproduced; (c) the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented; (d) the individual does not give the reproduction away; and (e) the reproduction is used only for the individual’s private purposes. (2) For the purposes of paragraph (1)(b), a “medium or device” includes digital memory in which a work or subject-matter may be stored for the purpose of allowing the telecommunication of the work or other subject-matter through the Internet or other digital network. (4) Subsection (1) does not apply if the individual gives away, rents or sells the copy of the work or other subject-matter from which the reproduction is made without first destroying all reproductions of that copy that the individual has made under that subsection.
  11. 11. McCarthy Tétrault LLP / mccarthy.ca Time shifting (s.29.23) Industry Canada FAQ: “This bill will allow Canadians to "time shift," or record television, radio or Internet broadcasts, provided that it is done for private, non-commercial purposes. This bill does not restrict the types of devices and formats that can be used, making this exception technologically neutral.” 29.23 (1) It is not an infringement of copyright for an individual to fix a communication signal, to reproduce a work or sound recording that is being broadcast or to fix or reproduce a performer’s performance that is being broadcast, in order to record a program for the purpose of listening to or viewing it later, if (a) the individual receives the program legally; (b) the individual, in order to record the program, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented; (c) the individual makes no more than one recording of the program; (d) the individual keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time; (e) the individual does not give the recording away; and (f) the recording is used only for the individual’s private purposes. (2) Subsection (1) does not apply if the individual receives the work, performer’s performance or sound recording under an on-demand service. (3) The following definitions apply in this section. “broadcast” means any transmission of a work or other subject-matter by telecommunication for reception by the public, but does not include a transmission that is made solely for performance in public. “on-demand service” means a service that allows a person to receive works, performer’s performances and sound recordings at times of their choosing. * Can an individual stream or make a copy for viewing on mobile devices?
  12. 12. McCarthy Tétrault LLP / mccarthy.ca User Generated Content (UGC) Industry Canada Fact Sheet: “The new bill permits the use of legitimately acquired material in user- generated content created for non-commercial purposes. This applies only to creations that do not affect the market for the original material. Examples include making a home video of a friend or family member dancing to a popular song and posting it online, or creating a "mash-up" of video clips.” 29.21(1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject- matter or to authorize an intermediary to disseminate it, if (a) the use of, or the authorization to disseminate, the new work or other subject- matter is done solely for non-commercial purposes; (b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so; (c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and (d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.
  13. 13. McCarthy Tétrault LLP / mccarthy.ca Other Legislative Developments ¬ 2013 Special 301 Report: ¬ “USTR is moving Canada to the Watch List in 2013. In June 2012, the United States welcomed the passage of the Copyright Modernization Act, which, among other things, is designed to implement Canada’s obligations under the WIPO Internet Treaties and to address the challenges of copyright piracy in the digital age. In March 2013, Canada also introduced the Combating Counterfeit Products Act to strengthen IPR enforcement, which included provisions that would provide ex officio authority to Canadian customs officials to seize pirated and counterfeit goods at the border. The United States supports Canada’s commitment to address the serious problem of pirated and counterfeit goods entering our highly integrated supply chains and urges Canada to expand the legislation to also provide authority for its customs officials to take action against goods in-transit…The United States looks forward to continuing its close cooperation with Canada on IPR issues, including through the TPP negotiations.”
  14. 14. McCarthy Tétrault LLP / mccarthy.ca Judicial Developments ¬ ESA v. SOCAN, 2012 SCC 34 ¬ Rogers Communications Inc. v. SOCAN, 2012 SCC 35 ¬ SOCAN v. Bell Canada, 2012 SCC 36 ¬ Alberta (Education) v. Canadian Copyright Licensing Agency (Access Co , 2012 SCC 37 ¬ Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38 ¬ Reference re Broadcasting Regulatory Policy CRTC 2010 167, 2012 SCC 68 ¬ Izard, et al. v. Claude Robinson, Supreme Court of Canada case 34468
  15. 15. McCarthy Tétrault LLP / mccarthy.ca Judicial Perspectives – U.S. ¬ Eldred v. Ashcroft, 537 US 186 per Ginsburg J., ¬ “As we have explained, "[t]he economic philosophy behind the [Copyright] [C]lause ... is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors." Mazer v. Stein, 347 U.S. 201, 219 (1954). Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge.... The profit motive is the engine that ensures the progress of science.“…Rewarding authors for their creative labor and "promot[ing] ... Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides . . . with the claims of individuals.“…JUSTICE BREYER's assertion that "copyright statutes must serve public, not private, ends,"post, at 247, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.”
  16. 16. McCarthy Tétrault LLP / mccarthy.ca Judicial Perspectives - Canada ¬ SOCAN v. Bell Canada, 2012 SCC 36 ¬ “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”… ¬ “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.”
  17. 17. McCarthy Tétrault LLP / mccarthy.ca Judicial Perspectives - Canada ¬ SOCAN v. Bell Canada, 2012 SCC 36 ¬ “CCH confirmed that users’ rights are an essential part of furthering the public interest objectives of the Copyright Act.  One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision “must not be interpreted restrictively”: CCH, at para. 48.”
  18. 18. McCarthy Tétrault LLP / mccarthy.ca ¬ Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121(2nd Cir. 2008) ¬ WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd .Cir.Apr, 1, 2013), affirming American Broadcasting Companies v. Aereo, Inc., 874 F. Supp. 2d 373 (S.D.N.Y.2012) ¬ WNET, Thirteen v. Aereo, Inc., Nos. 12-2786, 12-2807, F.3d _, 2013 WL 3657978 (2d Cir. July 16, 2013) (denying rehearing en banc) ¬ Fox Television Stations, Inc. v. BarryDriller Content Systems, PLC 2012 WL 6784498 (C.D.Cal.,Dec. 27, 2012) ¬ Fox Television Stations, Inc. v Filmon X LLC (D.D.C. Sep 5, 2013) ¬ United States v. American Society of Composers, Authors and  Publishers, 627 F.3d 64 (2d Cir. 2010) Judicial Developments – U.S. –Public Performance
  19. 19. McCarthy Tétrault LLP / mccarthy.ca Rogers Communications Inc. v. SOCAN, 2012 SCC 35 “Focusing on each individual transmission loses sight of the true character of the communication activity in question and makes copyright protection dependant on technicalities of the alleged infringer’s chosen method of operation. Such an approach does not allow for principled copyright protection. Instead, it is necessary to consider the broader context to determine whether a given point-to- point transmission engages the exclusive right to communicate to the public. This is the only way to ensure that form does not prevail over substance.” Judicial Developments – Canada
  20. 20. McCarthy Tétrault LLP / mccarthy.ca ESA v. SOCAN, 2012 SCC 34 “…the right to “communicate” is historically connected to the right to perform a work and not the right to reproduce permanent copies of the work… The right to perform historically presupposed a live audience that would be present at the site where the performance took place… we agree with Rothstein J. (at para. 98) that there is a “historic relationship” between the performance right and the communication right in the Copyright Act, but we disagree with his conclusion that Parliament intended to sever this relationship based on the 1988 amendments. In our view, this historical connection between communication and performance still exists today.” ¬ Did the amendments in the CMA change the law to create a technologically neutral making available right? The Copyright Board Tariff 22 proceeding is considering the issue. Judicial Developments – Canada
  21. 21. McCarthy Tétrault LLP / mccarthy.ca ¬ Canada and U.S. face same challenges in dealing with technological developments and in providing incentives for creative industries. ¬ U.S. and Canada have taken different legislative approaches to dealing with technological changes. ¬ U.S. and Canada judicial approaches also diverge. Conclusion
  22. 22. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 12561273 MONTRÉAL Bureau 2500 1000, rue De La Gauchetière Ouest Montréal (Québec) H3B 0A2 Tél. : 514-397-4100 Téléc. : 514-875-6246 Sans frais : 1-877-244-7711 QUÉBEC Le Complexe St-Amable 1150, rue de Claire-Fontaine, 7e étage Québec (Québec) G1R 5G4 Tél. : 418-521-3000 Téléc. : 418-521-3099 Sans frais : 1-877-244-7711 ROYAUME-UNI & EUROPE 125 Old Broad Street, 26th Floor London EC2N 1AR ROYAUME-UNI Tél. : +44 (0)20 7786 5700 Téléc. : +44 (0)20 7786 5702 VANCOUVER Suite 1300, 777 Dunsmuir Street P.O. Box 10424, Pacific Centre Vancouver (Colombie-Britannique) V7Y 1K2 Tél. : 604-643-7100 Téléc. : 604-643-7900 Sans frais : 1-877-244-7711 CALGARY Suite 3300, 421 7th Avenue SW Calgary (Alberta) T2P 4K9 Tél. : 403-260-3500 Téléc. : 403-260-3501 Sans frais : 1-877-244-7711 TORONTO Box 48, Suite 5300 Toronto Dominion Bank Tower Toronto (Ontario) M5K 1E6 Tél. : 416-362-1812 Téléc. : 416-868-0673 Sans frais : 1-877-244-7711

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