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Barry Sookman Copyright The Year in Review (2013)

Barry Sookman Copyright The Year in Review (2013)

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    Sookman lsuc copyright_year_in_review_2013_final Sookman lsuc copyright_year_in_review_2013_final Presentation Transcript

    • McCarthy Tétrault Advance™ Building Capabilities for Growth Law Society of Upper Canada: The Year in Review: Copyright (2013) Barry B. Sookman bsookman@mccarthy.ca 416-601-7949 McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 13068218 January 16, 2014
    • Cinar Corporation v. Robinson, 2013 SCC 73 McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 2
    • Cinar Corporation v. Robinson, 2013 SCC 73 Similarities between Robinson Curiosité and Robinson Sucroë “The Court concludes that there is a substantial similarity between these two characters.” (Que.S.C) McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 3
    • Cinar Corporation v. Robinson, 2013 SCC 73 Similarities between Vendredi Férié and Mereredi “The Court concludes that there is a substantial similarity between these two characters.” (Que.S.C) McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 4
    • Cinar Corporation v. Robinson, 2013 SCC 73 Similarities between Boum Boum and Duresoirée alias Hildegarde Van Boum Boum “The Court concludes that there is a substantial similarity between these two characters Duresoirée and Boum Boum.” Que.S.C) McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 5
    • Cinar Corporation v. Robinson, 2013 SCC 73 Similarities between Gertrude and Gladys “The Court concludes that there is a substantial similarity between these two characters.” (Que.S.C) McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 6
    • Cinar Corporation v. Robinson, 2013 SCC 73 Similarities between Charlie the Pilot and Courtecuisse “The Court concludes that there is a substantial similarity between these two characters.” (Que.S.C) McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 7
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ “The Copyright Act strikes “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator… It seeks to ensure that an author will reap the benefits of his efforts, in order to incentivize the creation of new works. However, it does not give the author a monopoly over ideas or elements from the public domain, which all are free to draw upon for their own works. For example, “[t]he general stock of incidents in fiction or drama is free for all to use ― a substantial part of everyone’s culture, not of any one individual’s work”… McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 8
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ “However, the Act does not protect every “particle” of an original work, “any little piece the taking of which cannot affect the value of [the] work as a whole”: Vaver, at p. 182. Section 3 of the Copyright Act provides that the copyright owner has the sole right to reproduce “the work or any substantial part thereof”. ¬ A substantial part of a work is a flexible notion. It is a matter of fact and degree. “Whether a part is substantial must be decided by its quality rather than its quantity”: Ladbroke (Football), Ltd. v. William Hill (Football), Ltd., [1964] 1 All E.R. 465 (H.L.), at p. 481, per Lord Pearce. What constitutes a substantial part is determined in relation to the originality of the work that warrants the protection of the Copyright Act. As a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author’s skill and judgment expressed therein.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 9
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ “A substantial part of a work is not limited to the words on the page or the brushstrokes on the canvas. The Act protects authors against both literal and non-literal copying, so long as the copied material forms a substantial part of the infringed work. As the House of Lords put it, ¬ . . . the “part” which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. . . . [T]he original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original. ¬ (Designers Guild Ltd. v. Russell Williams (Textiles) Ltd., [2001] 1 All E.R. 700 (H.L.), at p. 706, per Lord Hoffmann; see also Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2nd Cir. 1930), per Learned Hand J.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 10
    • Cinar Corporation v. Robinson, 2013 SCC 73 “The approach proposed by the Cinar appellants is similar to the “abstraction-filtration-comparison” approach used to assess substantiality in the context of computer software infringement in the United States: see Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2nd Cir. 1992)… It has been discussed, though not formally adopted, in Canadian jurisprudence: Delrina Corp., at paras. 43-47. I do not exclude the possibility that such an approach might be useful in deciding whether a substantial part of some works, for example computer programs, has been copied. But many types of works do not lend themselves to a reductive analysis. Canadian courts have generally adopted a qualitative and holistic approach to assessing substantiality. “The character of the works will be looked at, and the court will in all cases look, not at isolated passages, but at the two works as a whole to see whether the use by the defendant has unduly interfered with the plaintiff’s right…” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 11
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ “The trial judge clearly grounded his finding of copying of a substantial part not in the idea behind Curiosity, but in the way Robinson expressed that idea. He concluded that the overall architecture of Robinson’s submission for a television show was copied. He found that the graphic appearance and several aspects of the personality of Curiosity’s protagonist were copied; the personalities of the secondary characters that gravitate around Curiosity’s protagonist were copied; and the graphic appearance of the makeshift village that these characters inhabit was also copied in part (paras. 685 and 824-26). These findings are not confined to the reproduction of an abstract idea; they focus on the detailed manner in which Robinson’s ideas were expressed.” ¬ “The development of a group of characters that have specific personality traits and whose interactions hinge on those personalities can require an exercise of skill and judgment sufficient to satisfy the Copyright Act’s originality criterion… Sucroë reproduces more than generic elements which all are free to draw upon for inspiration. It reproduces Curiosity’s particular combination of characters with distinct personality traits, living together and interacting on a tropical island ― elements that represent a substantial part of the skill and judgment expressed in Curiosity.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 12
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ “The question of whether there has been substantial copying focuses on whether the copied features constitute a substantial part of the plaintiff’s work ― not whether they amount to a substantial part of the defendant’s work: Vaver, at p. 186; E. F. Judge and D. J. Gervais, Intellectual Property: The Law in Canada (2nd ed. 2011), at p. 211. The alteration of copied features or their integration into a work that is notably different from the plaintiff’s work does not necessarily preclude a claim that a substantial part of a work has been copied. As the Copyright Act states, infringement includes “any colourable imitation” of a work: definition of “infringing”, s. 2. ¬ This is not to say that differences are irrelevant to the substantiality analysis. If the differences are so great that the work, viewed as a whole, is not an imitation but rather a new and original work, then there is no infringement. As the Court of Appeal put it, “the differences may have no impact if the borrowing remains substantial. Conversely, the result may also be a novel and original work simply inspired by the first. Everything is therefore a matter of nuance, degree, and context” (para. 66).” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 13
    • Cinar Corporation v. Robinson, 2013 SCC 73 “In my view, the perspective of a lay person in the intended audience for the works at issue is a useful one. It has the merit of keeping the analysis of similarities concrete and grounded in the works themselves, rather than in esoteric theories about the works. However, the question always remains whether a substantial part of the plaintiff’s work was copied. This question should be answered from the perspective of a person whose senses and knowledge allow him or her to fully assess and appreciate all relevant aspects ― patent and latent ― of the works at issue. In some cases, it may be necessary to go beyond the perspective of a lay person in the intended audience for the work, and to call upon an expert to place the trial judge in the shoes of “someone reasonably versed in the relevant art or technology”: Vaver, at p. 18” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 14
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ “For expert evidence to be admitted at trial, it must (a) be relevant; (b) be necessary to assist the trier of fact; (c) not offend any exclusionary rule; and (d) involve a properly qualified expert… Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387, at para. 75.” ¬ “In the present case, the necessity criterion of the test for the admissibility of expert evidence is satisfied. First, the works at issue are intended for an audience of young children. A rigid application of the “lay person in the intended audience” standard would unduly restrict the court’s ability to answer the central question, namely whether a substantial part of Robinson’s work was copied. It would shift the question to whether the copied features are apparent to a five-year-old. ¬ Second, the nature of the works at issue makes them difficult to compare… ¬ Finally, the works at issue had both patent and latent similarities. Or, as Dr. Perraton explained it, they shared “perceptible” and “intelligible” similarities. “Perceptible” similarities are those that can be directly observed, whereas “intelligible” similarities ― such as atmosphere, dynamics, motifs, and structure ― affect a viewer’s experience of the work indirectly. Expert evidence was necessary to assist the trial judge in distilling and comparing the “intelligible” aspects of the works at issue, which he would not otherwise appreciate….” ¬ See also Pelchat c. Zone 3 inc., 2013 QCCS 78 McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 15
    • Cinar Corporation v. Robinson, 2013 SCC 73 “Section 35 of the Copyright Act provides that a defendant can be ordered to “disgorge its profit to the extent that such profit is caused by the infringement. The requirement for a [causal] link between infringement and profit may require that the profit be apportioned between that which is attributable to the infringement and that which is not”: McKeown, at p. 2482.3 (emphasis added). The onus is on the infringer to “satisfactorily separate non-infringing from infringing activities”: Vaver, at p. 653; Sheldon v. Metro-Goldwyn Pictures Corporation, 106 F.2d 45 (2nd Cir. 1939), per Learned Hand J. In some cases, “an infringer may so interweave the right-holder’s work with its own as to make separation impossible””… McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 16
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ “Section 35 of the Copyright Act provides a dual remedy for copyright infringement: damages for the plaintiff’s losses and disgorgement of the profits retained by the defendant. Disgorgement of profits under s. 35 is designed mainly to prevent unjust enrichment, although it can also serve a secondary purpose of deterrence: Vaver, at p. 650. It is not intended to compensate the plaintiff…” ¬ Disgorgement under s. 35 of the Copyright Act goes no further than is necessary to prevent each individual defendant from retaining a wrongful gain. Defendants cannot be held liable for the gains of co-defendants by imposing liability for disgorgement on a solidary basis.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 17
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ “In this case, the trial judge relied heavily on the personal approach, emphasizing the subjective impact of the infringement of copyright on Robinson’s mental state and personal life. He bolstered his analysis by comparing Robinson’s anguish to the similar level of anguish experienced by the plaintiff in the defamation case Société RadioCanada v. Gilles E. Néron Communication Marketing inc., [2002] R.J.Q. 2639 (C.A.), aff’d 2004 SCC 53, [2004] 3 S.C.R. 95... ¬ I agree with the trial judge that Robinson’s non-pecuniary damages are analogous to those claimed by a victim of defamation. The product of Robinson’s artistic exertions was taken from him and the integrity of his personal creative process was violated, causing deep psychological suffering. These harms are similar to those suffered by a victim of defamation.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 18
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ Quebec Charter of human rights and freedoms, R.S.Q., c. C-12, s. 49. ¬ 1. Every human being has a right to life, and to personal security, inviolability and freedom. ¬ 4. Every person has a right to the safeguard of his dignity, honour and reputation. ¬ 6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law. ¬ 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. ¬ Punitive damages. ¬ In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 19
    • Cinar Corporation v. Robinson, 2013 SCC 73 ¬ “Section 49 of the Charter provides that punitive damages may be awarded if there is an unlawful and intentional interference with any of the rights and freedoms that the Charter recognizes. The evidence establishes unlawful and intentional interference with several of Robinson’s Charter rights. Copyright infringement is a violation of s. 6 of the Charter, which provides that “[e]very person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law”… Additionally, the infringement of copyright in this case interfered with Robinson’s personal rights to inviolability and to dignity, recognized by ss. 1 and 4 of the Charter. ¬ An interference with the right to inviolability “must affect the victim’s physical, psychological or emotional equilibrium in something more than a fleeting manner”… The trial judge made detailed findings of fact to the effect that Robinson’s psychological and emotional equilibrium were deeply affected as a result of the infringement and the ensuing legal proceedings (paras. 981-82). ¬ An interference with the right to dignity is a violation of “the respect to which every person is entitled simply because he or she is a human being and the respect that a person owes to himself or herself”… ¬ Here, Cinar, Weinberg, Charest, and Izard consistently and contemptuously denied having access to Robinson’s work, and disparaged Robinson’s claims that they had copied his work. Their behaviour constitutes an interference with Robinson’s Charter right to dignity, and provides an additional basis for the award of punitive damages.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 20
    • Rains v. Molea, 2013 ONSC 5016 Did Molea infringe the copyrights of Rains in the “Classical Series” – paintings which feature crumpled paper in still life form against a dark background? Rains Laconia, 1998 McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 Molea Hero, 2004 21
    • Rains v. Molea, 2013 ONSC 5016 Rains “Icaria”, 2000 McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 Molea “Turning Point”, 2005 22
    • Rains v. Molea, 2013 ONSC 5016 Rains “Parnassus”, 1992 McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 Molea “The Last Frontier”, 2007 23
    • Rains v. Molea, 2013 ONSC 5016 ¬ “In my view, each image of the Classical Series is original as that term is defined by the Supreme Court of Canada. Each image originates from Rains and is not copied from another work. Every image is the product of Rains’ skill and judgment. Each Classical Series painting starts with Rains randomly crushing a large piece of water colour paper. From there, Rains considers the appropriate vantage point for engaging with the paper and starts painting the work. The whole process takes approximately two to three weeks, with works often 44 x 66 inches. Rains’ skill and judgment employed to create the final images are more than trivial and meet the originality test set out above.” ¬ “Rains and Molea both had the idea of painting a realistic image of crumpled paper. Their respective expressions of the idea are represented in the images themselves. The image is a product of diligent work. The artists spend hours exercising skill and judgment. They apply intellect and employ techniques learned through study, experience, talent, and influence to develop, explore, and perfect the expression of that idea in a painting. Both Rains and Molea repeatedly express the idea through images. Each image is a different expression and that expression, if original, is subject to copyright.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 24
    • Rains v. Molea, 2013 ONSC 5016 ¬ “I reject Rains’ submission that the Classical Series is a compilation because it evokes a feeling common to all his works, I conclude that the Classical Series is not a compilation as defined by the Act because “gestalt” or a “feeling” is insufficient to meet the test. ¬ Further, in my view it would be unwise to extend copyright protection to the visual perception of an artistic work, which is intangible and subjective… There is good reason for this. The scale would be tipped in favour of the creator’s rights if copyright were to protect an undefined and unarticulated feeling emoted from artistic works. There would be little room for the public domain to flourish. Others would be unable to produce new artistic works without fear of infringing a creator’s self-imposed or critically-bequeathed imprecise evocation of his work’s feeling or expression. Moreover, the protection would often extend to works not yet created. This would be a perverse result considering the purpose of the Act as set out above.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 25
    • Rains v. Molea, 2013 ONSC 5016 ¬ “The 17 comparisons feature the use of crushed white paper against a dark or sometimes earth-tone background on an occasional lighter, indeterminate, or reflective flat base with, on one occasion, a Mediterranean title. The facts further indicate that these similarities are not unique to Rains; they are common, longestablished artistic techniques. I conclude therefore that the similarities between the 17 comparisons are conventional tropes or artistic devices historically common among painters.” ¬ “Rains cannot establish infringement by relying on his use of the noted unoriginal, commonplace, historical painting techniques. This would be akin to Shakespeare relying on his use of iambic pentameter in his writing or Drake relying on his use of 16 bars to a verse in his music. Commonly used techniques must remain available to all artists creating literary, dramatic, musical, and artistic works… If the compilation of these techniques is original, as defined above, the work enjoys copyright protection. If, after disregarding the commonplace techniques, there remain sufficient similarities between one work and a preceding original, substantial copying will likely be established. Because Rains relies on unoriginal elements, other than shape, to demonstrate similarity, these elements do not establish substantial copying.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 26
    • Rains v. Molea, 2013 ONSC 5016 “This case involves two artists who had the same (and not unique) idea to paint crumpled paper in a realistic way using conventional painting techniques. Their motivations are different. Their processes are different. Their resultant expressions are different. The Act protects each original Rains painting and each original Molea painting from infringement. If any of Molea’s 17 comparison works were substantial copies or colourable imitations of Rains’ comparable images, Rains would be successful in his claim of copyright infringement. However, simply because Rains expressed his idea before Molea and found commercial success and critical acclaim for doing so, does not mean that Molea or any other painter is forever prohibited from independently creating an expression of crumpled paper in still life form. In my view, to give Rains exclusive access to this territory would unfairly silence independent expressions of the idea and render absurd the very purpose of the Act.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 27
    • Pelchat c. Zone 3 inc., 2013 QCCS 78 ¬ “the applicants claim to hold "the exclusive rights to produce and distribute any issue relating to the transformation beauty of a person by the clothes, hairstyle and makeup.” ¬ “The Tribunal viewed several emissions Looks and Metamorphosis with the parties and again during deliberations. ¬ It does not show even an impression of similarity between the two works to the point that, to paraphrase Riordan J. in Cummings , one is led to conclude that not only are the two horses of a different color, but they are not even two horses. ¬ In fact, besides the concept of transformation and beauty items that are inherent, there is little or no connects. ¬ It is not surprising in the circumstances that applicants have attempted to reduce their work to generic elements of any transformation beauty on television while trying to hide the other or pretend that they are meaningless elements nor importance in the expression of their concept.” (Google translate) McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 28
    • Hobbs v. (Elton) John, 722 F. 3d 1089 (7th.Cir.2013) ¬ Hobbs claims his song "Natasha" is infringed by Elton John’s song entitled "Nikita“. ¬ “We agree with the district court that "Natasha" and "Nikita" simply "tell different stories," Hobbs v. John, No. 12C3117, 2012 WL 5342321, at *7 (N.D.Ill. Oct. 29, 2012), and "are separated by much more than `small cosmetic differences,'" Peters,692 F.3d at 636 (quoting JCW, 482 F.3d at 916). "Natasha" tells the story of an actual, though brief, romantic encounter between a man from the United Kingdom and a woman from Ukraine. Their tangible relationship is severed because the woman must sail away. In contrast, "Nikita" tells the tale of man who sees and loves a woman from afar. But that love can never find physical expression because the two are separated by "guns and gates." ¬ We conclude that as a matter of law "Natasha" and "Nikita" are not "substantially similar" because they do not "share enough unique features to give rise to a breach of the duty not to copy another's work.“” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 29
    • Klinger v Conan Doyle Estate, Ltd No. 13 C 1226 (N.D.Ill.2013) ¬ Klinger seeks a declaration that various characters, character traits and other story elements from Sir Arthur Conan Doyle's Sherlock Holmes stories are free to use in an anthology of new and original short stories by contemporary authors without infringing Conan Doyle's rights under the U.S. Copyright Act. ¬ “Where an author has used the same character in a series of works, some of which are in the public domain, the public is free to copy story elements from the public domain works... ¬ It is a bedrock principle of copyright that "once work enters the public domain it cannot be appropriated as private (intellectual) property," and even the most creative of legal theories cannot trump this tenet.” ¬ “The law is clear that Klinger is entitled to use the Pre-1923 Story Elements... The Post-1923 Story Elements are protected under copyright, and as a result neither Klinger nor the public are entitled to use them.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 30
    • Distrimedic inc. c. Dispill Inc., 2013 FC 1043 ¬ Is The Dispill Label Form Susceptible To Copyright Protection? ¬ “I am prepared to accept that what Richards really seems to be referring to by the term “Dispill Label Form” is a series of entry screens from a software program written in the DOS language”. ¬ ‘There is no dispute between the parties that a form does not have to be on a paper support and that a computer screen (which in any event can be printed) falls within the definition of a “work” for the purposes of the Copyright Act, and can therefore be protected. Similarly, the Defendants to the Counterclaim do not dispute that the DOS Dispill Label Form is a literary work.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 31
    • Distrimedic inc. c. Dispill Inc., 2013 FC 1043 ¬ “There are…problems preventing the recognition of copyright in the Dispill Label Form… the selection of the information for the DOS Dispill Label Form bears a very low degree of originality, as it is mostly dictated by provincial legislation on the labelling of prescription drugs, both in Quebec and Ontario, where the parties’ products are mainly sold… ¬ In the case at bar, I have not been convinced that the selection of information and its arrangement in the DOS Dispill Label Form required of its author the type of skill and judgment deserving of copyright protection. It may be, as suggested by counsel for Richards, that Dispill was the first to create a method of generating the necessary patient information for printing on each cell of a pill dispenser. This cannot be the subject of copyright protection, however, as it would amount to creating a monopoly on an idea or method, which the law does not permit.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 32
    • Distrimedic inc. c. Dispill Inc., 2013 FC 1043 ¬ “The asset purchase agreement whereby Mr. Bouthiette sold his business to his company Dispill Inc., dated January 1, 1998, makes no mention of any copyright in the Dispill Label Form… ¬ In the present case, I do not think that the Clause 1 of that Agreement, stating that “[l]e vendeur vend à l’acquéreur, qui l’achète, son entreprise de vente d’un système de dispensateur de médicaments, connue sous le nom de DISPILL…”[Google translate: “the seller sells to the purchaser, who buys his company sales system dispensing of medicines, known as the DISPILL”], explicit enough to encompass the alleged copyright in the Dispill Label Form. This is made even clearer by the description that is given of that enterprise in that same clause, which explicitly refers in Section C to the invention in the patent. It doesn’t appear, therefore, that the parties to the agreement had the Dispill Label Form and the copyright possibly attaching thereto in mind, particularly as they made no reference to it despite referring explicitly to the patent.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 33
    • (AOM) NA Inc. et al v. Reveal Group, 2013 ONSC 8014 ¬ “Copyright is a very specific right attaching to a “work”. I agree with the defendants that the pleading is vague about what it is that is subject to copyright and what it is alleged has been the breach of copyright giving rise to this cause of action. Copyright cannot attach to an idea such as a method. It can of course attach to the manuals or other material in which the method is described. Similarly with computer software, copyright can attach to source code, to a graphic user interface, to manuals and to other material as defined in the Act. Copyright cannot attach simply to what a computer program does. The plaintiff must specify what it is that is covered by copyright and what it alleges has been done that gives rise to the statutory remedies. ¬ On this point the defendant is successful. The claim for copyright breach will be struck out with leave to amend.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 34
    • SAS Institute Inc v World Programming Ltd [2013] EWCA Civ 1482 (21 November 2013) ¬ “The court did not itself define what it meant by "functionality"; and in those circumstances there is no reason to suppose that it meant anything different from the way in which the Advocate-General defined the word. Moreover, at [40] it specifically approved what the Advocate-General had said at [57] of his opinion: ¬ "… to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolises ideas, to the detriment of technological progress and industrial development.“ ¬ It will be recalled that in [39] the court had discussed (a) the functionality of a computer program, (b) the programming language and (c) the format of data files used in a computer program. By contrast in [45] it considered only (b) and (c). One must infer, therefore, that the court considered that the functionality of a computer program could not be protected under the Information Society Directive. So I do not think that this carries SAS Institute's argument further.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 35
    • Manitoba v. Access Copyright, 2013 FCA 91 ¬ ¬ 12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty… “The Board’s analysis began with a recognition of the history of Crown copyright under the Crown prerogative particularly its right to print and publish. This right goes back hundreds of years, and includes the right to print and publish statutes, court decisions, and authorized versions of the Bible, among other things… The Board concluded that the words “without prejudice to any right or privilege of the Crown” in section 12 of the Act are necessary to maintain that common law Crown prerogative, and the scope of section 12 should be limited accordingly.” ¬ “Having carefully examined the wording of section 12 in its overall context, including the structure of the Act, its legislative history and evolution, and other provisions, such as section 89, I agree with the Board that the words “[w]ithout prejudice to any right or privilege of the Crown” set out in section 12 are intended to refer to and preserve the Crown’s rights and privileges of the same general nature as copyright that may not fall within the meaning of the rest of this provision. These rights and privileges could otherwise be excluded by the general principle set out in section 89 which provides that no person is entitled to copyright otherwise than under and in accordance with the Act or any other Act of Parliament.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 36
    • Manitoba v. Access Copyright, 2013 FCA 91 ¬ “In my view, the references in the Act to very strict conditions, to tariffs fixed by the Board, to the consent of the copyright owners, and to the power of the court when the defendant is an “educational institution”, including a federal or provincial government department, all point to only one logical and plausible conclusion as to the intent of Parliament: the Crown is bound. ¬ I have considered that the Act, unlike other statutes such as the Patent Act, R.S.C., 1985, c. P-4, s.2.1, does not contain an “expressly binding” clause at the beginning, as was recommended in the 1985 report entitled A Charter of Rights for Creators. I am still irresistibly drawn to the conclusion that Parliament clearly intended to bind the federal and provincial Crowns by the express language of the Act and through logical inference.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 37
    • Nautical Data International, Inc. v. C-Map USA Inc., 2013 FCA 63 ¬ Was a grant of a license to data/charts exclusive so as to give NDI the right to sue for infringement? ¬ “Subject to the rights reserved in Sections 2.4 and 2.5 below, Canada grants to NDI a sole worldwide right and license (the “License”) to use the CHS Data to produce Products and Product Updates, to integrate these Products with other products or services (provided that such integrated offerings do not derogate in any respect from the availability or reliability of the Products or Product Updates) and to distribute same directly or through third parties to whom a sublicense is granted in accordance with the terms hereof. Except as expressly set out herein, CHS shall have no right to distribute the Products or Product Updates to any person.” ¬ “There is no other provision in the Licence that says expressly that the Crown reserved to itself the right to make digital copies of the CHS Works. That would tend to support the argument of NDI that the Licence was intended to be an exclusive licence.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 38
    • VLM Holdings Ltd v Ravensworth Digital Services Ltd [2013] EWHC 228 (Ch) (13 February 2013) ¬ “Since the grant by UK was a grant by a sub-licensor, what is the effect on such a grant of the cesser of the head licence?” ¬ “Since one starts with the question of permission, it is therefore pertinent to determine who has permitted whom to do what. It is certainly possible to imagine circumstances in which a sub-licence would survive the termination of the head licence. Take, for example, a case in which a copyright owner gives a licence to another, and expressly permits that other to grant sub-licences which (say) endure for a given period and which are clearly expressed as being capable of surviving the termination of the head licence. It seems obvious that the sub-licences would indeed survive that event. The reason for that, in my view, is that the permission extended by the express term means that there was an authority (permission) from the copyright owner to use the copyright material. In effect, the sub-licensor was authorised to give that consent and, to that extent, to bind the owner. This demonstrates that the key lies in the area of authority – what authority was the sub-licensor given by the owner? In my example the answer is plain.” ¬ “The real question is therefore as to the scope of the authority given by the head licensor to the sub-licensor. That depends on all the facts. If the authority is sufficiently wide to allow the grant of a sub-licence which is capable of surviving the termination of the head licence, then the head licensor (copyright owner) must be taken as giving the ultimate permission himself, on normal agency principles.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 39
    • Orr-Adams (t/a Applied Concrete Systems, A Partnership) v Bailey [2013] EWPCC 30 (12 Jun. 2013) ¬ Does a licensee have a continuing right to use confidential information and copyright works after a contract termination and an obligation to continue pay royalties for such use? ¬ “Bearing that guidance in mind, I accept that the Defendants' contention that they remained able to exploit the Disputed Formulations after determination of the agreement made some commercial sense, as otherwise they could have been faced with the difficulty of not having products to sell after determination. Therefore, there would have been an implied term of the agreement for the Defendants to have the right to continue to sell products made to the Disputed Formulations for a limited period after determination. Or, it may have been reasonable for there to be an implied term that they could carry on exploiting them generally after termination. However, in either case I can see no basis for the Defendants' contention that such posttermination sales did not carry with them an obligation to continue making payments to the Claimants. That seems to me to be the obvious corollary of any implied right to continue making such sales.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 40
    • Agence France Presse v. Morel, 106 U.S.P.Q. 2d 1192 (S.D.N.Y.2013) ¬ “AFP argues that it was a third party beneficiary to the Twitter TOS and derives a license from those terms of service, and is therefore insulated from liability...The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract. An individual may be a third-party beneficiary to a contract if the terms of the contract "necessarily require" that the promisor conferred a benefit on that third party.” ¬ “The Court need not fix the precise scope of any license created by the Twitter TOS in order to resolve the dispute before it. Rather, it suffices to say that based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case... Put differently, the evidence does not reflect a clear intent to grant AFP a license to remove the Photos-atIssue from Twitter and license them to third parties, nor does it "necessarily require" such a license... Indeed, this is the fatal flaw in AFP's argument: it fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 41
    • Oakcraft Homes Inc v Ecklund, 2013 CanLII 41981 (ON SCSM) ¬ Innocent infringement? ¬ “The failure to mark ownership on the plan does not in law as set out above, defeat the right to copyright. The Ecklunds knew that the plan originated with the Plaintiff, the Plaintiff having discussed it with them, having made changes in writing thereon and having been sent an updated plan with proposed changes as discussed following attendances at other custom homes built by the Plaintiff. The Ecklunds cannot excuse their conduct in passing those plans onto Toscana merely because the ownership is not marked on the plans and merely because the Plaintiff did not specifically tell the Ecklunds they could not use them. It defies logic and common sense for the Ecklunds to use those factors as an excuse to escape liability for their actions. They took the plans with full knowledge that they had no colour of right to them and then they knowingly passed them on to the Defendant Toscana and solicited others as well for the sole purpose of them being used as jump off points for their custom home design. What the Ecklunds did in the result was infringe the Plaintiff’s copyright in the plans. ¬ Toscana knowingly took those plans with the intention of using them as jump off points to satisfy a potential customer shopping for the best deal on a custom home. Its principals were wilfully blind to determining where the plans came from and who authored them. They chose not to ask knowing that their potential customer was not the author.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 42
    • Oakcraft Homes Inc v Ecklund, 2013 CanLII 41981 (ON SCSM) ¬ Measure of damages ¬ “On the measure of damages, the Plaintiff seeks by its Claim the sum of $17,500.00 for the value of the plans had they been sold as a separate item. The Defendant Toscana claims that the proper value to be assessed for the plans is $5700.00. Neither party presented very cogent evidence on the proper amount to be assessed for damages for the value of the plans. It is therefore left to the court to make a determination in this regard. In doing so, I have regard to the approach taken by the Quebec Court of Appeal in the Construction Denis Desjardins Inc. v. Jeanson case to strike the midpoint as the measure of damages in the absence of cogent proof as to value. In this case, the midpoint is $11,600.00. Accordingly, I assess the Plaintiff’s damages at $11,600.00.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 43
    • Tremblay v. Orio Canada Inc., 2013 FC 109 ¬ “Any development done for Orio Canada Inc. shall become the exclusive property thereof and may not therefore be marketed or reused by Service Informatique Professionnel or any other party.” ¬ “In this case, the Court has no choice but to find that a signature is lacking. Although the parties have confirmed before this Court that the plaintiff submitted other bids to the defendant that include the same clause, there is nothing in the evidence to support a finding that the bids submitted after April 2007 were signed... Had it not been for the absence of the plaintiff’s signature, there would have been an assignment of the copyright under the Act, but in the circumstances, the Court can only find that, pursuant to subsection13(4) of the Act, the plaintiff did not assign his copyright in the modified SAM program. Accepting the defendant’s argument and making the opposite finding solely on the basis of the plaintiff’s testimony would render meaningless the requirement imposed by Parliament. This finding may appear rigid, but it complies with the formal requirements of the Act.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 44
    • Tremblay v. Orio Canada Inc., 2013 FC 109 ¬ “the Court is nevertheless of the view, on the basis of the record and the evidence, that the plaintiff granted an implied licence of use to the defendant with respect to the modified SAM program. This conclusion is dictated by the following reasons. ¬ First, the Court notes that this case rests on one key, determinative factor: the plaintiff authored the clause at issue, and it was the plaintiff, not the defendant, who included it in the bids. Next, the evidence shows that the plaintiff included this clause repeatedly in all of his bids to the defendant and that this was his usual practice. The plaintiff confirmed this upon examination by explaining that the purpose of the clause was to allow the defendant to market the modified SAM program. The evidence also shows that the plaintiff knew that the modified SAM program would be installed at car dealerships. The plaintiff even travelled to some of these dealerships himself on occasion. The Court also notes that the plaintiff was paid for his work… ¬ Therefore, in light of the evidence, the Court finds that the plaintiff granted the defendant an implied licence to use the modified SAM program. It has been recognized in the case law that an implied licence can be inferred from the parties’ conduct and need not be made in writing… The Court is of the view that this is the case here.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 45
    • Tremblay c. Canada (Orio Canada Inc)., 2013 CAF 225 ¬ “Thus, the case law provides unanimously that we can not oppose the holder of a copyright assignment or exclusive licensee who is not evidenced by a writing signed by the holder of the right in question … ¬ However, these decisions do not deal with a case where the owner of the copyright recognized in court to have consented to the transfer of ownership of the right in question. It seems to me an exaggerated formalism that make ineffective against a transferor a transfer clause of copyright that he has written himself and recognizes court as governing its relations with the transferee, and this for the simple reason that it is not signed. As I mentioned earlier, the purpose of subsection 13 (4) and (7) of the Act, copyright is to protect the owner of the copyright assignment against a law that is not granted clearly. Where the transferee recognizes himself in court the assignment clause which governs its reports, the purpose of the Act is about me filled.” ¬ Orio, however, has not made ​a cross-appeal against the decision of the judge trying the assignment of copyright is unenforceable to the caller. In these circumstances, it is not for this Court to reform this aspect of the judge's decision.” (Google translate) McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 46
    • B4U Network (Europe) Ltd v Performing Right Society Ltd [2013] EWCA Civ 1236 (16 October 2013) ¬ “At common law a man cannot give to another that which he does not own or does not yet possess. Thus, absent statute, a work must be in existence before ownership in the rights in the work can be assigned at law. But although future property, or an expectancy, cannot be assigned at law, equity would decree specific performance of the contract, provided it was for value and sufficiently specific (Maitland on Equity, 2nd ed. 1936, p.150, Kitto, Equity Doctrines and Remedies Butterworths Aus. 2002). ¬ Accordingly, where an author, or composer, assigned the copyright in works which he had not yet created, the assignment took effect only in equity as an agreement to assign future copyright in those works, should they be created. Once the work was created, the legal title would have to be dealt with by a separate assignment.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 48
    • B4U Network (Europe) Ltd v Performing Right Society Ltd [2013] EWCA Civ 1236 (16 October 2013) ¬ It is, in my view, inconsistent with the concept of a higher right created by an equitable assignment, independent of the contract, to suggest that a reasonable person would have understood the parties to have intended only to transfer rights in works of which they became owner once the works had been composed. To do so would turn the priority rules in relation to equitable assignments topsy-turvy; it permits the property rights created by the equitable assignment to be undermined by a subsequent equitable assignment… ¬ The conclusion I have reached gives full effect to the words of the PRS agreement, without addition or substitution. At the time of that agreement the composers could have become owners of the song. As prospective owners, their assignment took effect under section 91 once the song had been composed.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 49
    • Delta Hotels v. Backus-Naur et al., 2013 ONSC 582 ¬ “The defendants also say that equitable ownership of copyright is an untenable plea and, as such, should be disallowed. Equitable ownership of copyright is a recognized principle in the United Kingdom. Ms. Zagar submits (and the excerpt cited by her from Professor Vaver’s Intellectual Property Law: Copyright, Patents, Trademarks, 2d ed., at 140 appears to support her submission) that there is no direct discussion in Canadian jurisprudence in favour or against equitable ownership of copyright.” ¬ Ms. Zagar says that...having regard to the state of the law in Canada, it is not absolutely clear that a claim founded on equitable ownership of copyright is incapable of success (even if success is uncertain). On the materials before me, I am inclined to agree with this submission, too. While I accept, as Mr. Seed has argued, that there is now no precedent in Canadian law for the alternative plea proposed, I cannot say that it necessarily follows that on the specific facts of any given case, or this case, there could never be.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 50
    • Oakcraft Homes Inc v Ecklund, 2013 CanLII 41981 (ON SCSM) ¬ Is there a copyright in house plans created using computer tools? ¬ “It is clear from the evidence and I so find that Thompson embarked upon a course of conduct over time that turned his visions intellectually applied and conceptually conceived into an exceptional work deserving of copyright protection. His plan as presented to the Ecklands and after consultation with them embodied his vision and was unique to that vision. The fact that the plan was sent to a draftsman who reduced it to technical standards commanded by planning authorities does not in any way diminish the intellectual exercise used to create the original plan nor does it shift ownership to the draftsperson. Drafting for that purpose is a technical art using technical drawing tools. Today, that art has become a science by the use of computer aided design (CAD). Can it be said that the use of CAD thereby converts ownership in the original work to the computer software technician operating the machine or the computer software programmer who programmed the CAD software? The answer is obvious….NO!” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 51
    • Oakcraft Homes Inc v Ecklund, 2013 CanLII 41981 (ON SCSM) ¬ Ownership of works created by corporate officers? ¬ ”The Court has recognized over the years that when dealing with senior officers of corporations like presidents or other key officers, that these people are usually considered an employee of the company, whether or not a written contract of services exists and the copyright will therefore be owned by the company. B & S Publications Inc. v. Max-Contacts Inc,. 2001 Carswell Alta 69 at para. 21. ¬ On the issue of who owns the copyright in the plan and the allegation that the Plaintiff is not the rightful owner, the law is clear in that where an individual in the employ of a corporate entity is a principal/owner and senior officer thereof and he creates the work while in the corporation’s employ, the ownership resides in the corporation and a formal assignment of one to the other is therefore unnecessary.” ¬ Is the decision correct? McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 52
    • Coward v Phaestos Ltd & Ors [2013] EWHC 1292 (Ch) (17 May 2013) ¬ Is software created by a partner a partnership asset even if there is no written assignment of copyright? ¬ “It is not in dispute that the software which was created by Dr Coward, was created for the purposes of the partnership and was the bedrock of that business. The trading could not have been undertaken without it. It was the central tool by which the trading and investment operations of the business were to be carried out. ¬ If one tests the proposition further by applying the criteria set out by Jacob J in Robin Ray, in my judgment, it is equally clear that it is necessary to infer that the software was partnership property.” ¬ “an asset is not prevented from being partnership property as a result of a lack of a transfer of the legal title. As in the case of Don King Productions Inc v Warren, if necessary, the legal owner of the asset will found to hold the legal title upon trust for the partnership.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 53
    • Tremblay c. Canada (Orio Canada Inc)., 2013 CAF 225 ¬ ”As to the implied license to use, I see no error in the judge's decision wanting that, given the circumstances, the appellant consented not only an implied license marketing SAM modified, but also to that can be changed by software Orio to improve marketing. In this regard, the decision of the Supreme Court of Canada in Netupsky c. Dominion Bridge , [1972] SCR 368 appears to me analogous to the present case… ¬ There is no doubt in my opinion that the parties had in mind that the modified SAM could not only be marketed, but that this program could also be future improvements at the request of Orio, and that these improvements could be made ​either by calling or by a third party designated by Orio. Explicitly recognizing that "[a] ny development is Orio Canada inc. become the exclusive property "thereof, the appellant was in fact waived exclusivity on the development of all future enhancements audit program. The implied license arising from all relationships between the parties therefore allows Orio to copy the source code of SAM modified to do rework by third parties. The trial judge therefore did not err in so ruling.” (Google translate) McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 54
    • Pinto v. Bronfman Jewish Education Centre, 2013 FC 945 ¬ “Mr. Pinto has failed to make out this critical component of infringement. The evidence establishes that Mr. Pinto consented to, and indeed actively facilitated, BJEC’s use of his music. This is not a case of uncertainty or ambiguity. The evidence is consistent with consent. ¬ A court may find an implied licence has been granted when an artistic work was created as part of a freelance contract at the request of the purchaser. In such cases, the freelance contract is construed as including an implied licence for the purchaser to use the work for the purpose it was created… ¬ This principle is directly applicable to the present circumstances. BJEC engaged Mr. Pinto to compose, produce, arrange, perform and record music for the TaL AM curriculum. BJEC paid Mr. Pinto for his work, and in exchange for the consideration, received an implied licence to use the work for the purpose contemplated by the parties”. ¬ See also, Planification-Organisation-Publications Systèmes (POPS) Ltée v. 9054-8181 Québec Inc, 2013 FC 427 McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 55
    • Pinto v. Bronfman Jewish Education Centre, 2013 FC 945 ¬ “When a licence is granted in exchange for consideration, as in this case, it cannot be unilaterally revoked: Silverson v Neon Products Ltd, [1977] BCJ No 1092 (SC) at paras 33-36; Fox Canadian Law of Copyright and Industrial Designs, ch 19 at 29.” ¬ See also, Planification-Organisation-Publications Systèmes (POPS) Ltée v. 9054-8181 Québec Inc, 2013 FC 427 McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 56
    • Pinto v. Bronfman Jewish Education Centre, 2013 FC 945 ¬ “Section 2 of the Act provides that the “maker” is “the person by whom the arrangements necessary for the first fixation of the sounds are undertaken.” Section 2.11 explains that the necessary arrangements include “entering into contracts with performers, financial arrangements and technical arrangements required for the first fixation of the sounds for a sound recording.” ¬ Case law interpreting these provisions has emphasized the element of financial risk and payment for the recording. The maker is not necessarily the person who has personally undertaken the necessary arrangements, but instead the individual or corporation that bore the financial risk of doing so, such as a record company”… ¬ “However, it was BJEC that ultimately assumed the financial risk for the recording, as its payments to Mr. Pinto covered all of his costs, including paying the studio and vocalist…. In my view, though he was not an employee, he was entitled to be reimbursed for his expenses and therefore did not assume the financial responsibility for the recording. It is significant that for fourteen years BJEC paid every invoice provided by Mr. Pinto, including all disbursements. Accordingly, I conclude that BJEC was the maker of the sound recording and owned the copyright.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 57
    • Pinto v. Bronfman Jewish Education Centre, 2013 FC 945 “The certificates create only a presumption of ownership. As the certificates were registered after Mr. Pinto began these proceedings, the presumption has less weight: CCH Canadian Ltd v Law Society of Upper Canada, 2002 FCA 187 (CanLII), 2002 FCA 187 at para 63. In any event, in this case, there is substantial additional evidence regarding copyright ownership, all of which pre-dates registration. As will be discussed below, this evidence rebuts any presumption created by registration, assuming that registration is valid.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 58
    • Pinto v. Bronfman Jewish Education Centre, 2013 FC 945 ¬ “There should be some relationship between the actual damages and statutory damages: Hughes & Peacock on Copyright and Industrial Design, at 665. Hughes J and Susan Peacock continue and observe that: ¬ The overarching mandate of a judge assessing statutory damages in lieu of damages and loss of profits is to arrive at a reasonable assessment in all of the circumstances in order to yield a just result. There should be some correlation between actual damages and statutory damages. ¬ This, in turn, directs the inquiry to a broad range of factors, including whether or not the defendants acted in good or bad faith and the need for deterrence.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 59
    • Planification-Organisation-Publications Systèmes (POPS) Ltée v. 9054-8181 Québec Inc., 2013 FC 427 “As discussed in the immediately preceding section above, IDP provided substantial consideration in exchange for an explicit or implied licence to use and to continue to develop the Software. That consideration was provided pursuant to an explicit or verbal agreement, and was further evidenced by a course of conduct pursued by the parties over the course of many years. Accordingly, POPS was not entitled to unilaterally revoke that licence (Katz (Michael Katz Associates) v Cytrynbaum (1983), 76 CPR (2s) 276, at para 19 (BCCA), citing H G Fox, The Canadian Law of Copyright and Industrial Designs, 2d ed (Toronto: Carswell, 1967), at pp 339-340); see also (J S McKeown, Fox, Canadian Law of Copyright and Industrial Designs, 4th ed, (Toronto: Carswell, 2009) at 19:4(e); and Winter Garden Theatre v Millenium Products, [1948] A.C. 173, at 193 and 198).” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 60
    • Metro. Reg'l Info. Sys. v. AMER. HOME REALTY NET., 722 F. 3d 591 (4th.Cir.2013) ¬ “A transfer of one or more of the exclusive rights of copyright ownership by assignment or exclusive license "is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." 17 U.S.C. § 204(a)” ¬ “The issue we must yet resolve is whether a subscriber, who "clicks yes" in response to MRIS's electronic TOU prior to uploading copyrighted photographs, has signed a written transfer of the exclusive rights of copyright ownership in those photographs consistent with Section 204(a). Although the Copyright Act itself does not contain a definition of a writing or a signature, much less address our specific inquiry, Congress has provided clear guidance on this point elsewhere, in the ESign Act.” ¬ “To invalidate copyright transfer agreements solely because they were made electronically would thwart the clear congressional intent embodied in the E-Sign Act. We therefore hold that an electronic agreement may effect a valid transfer of copyright interests under Section 204 of the Copyright Act. Accordingly, we agree with the district court that MRIS is likely to succeed against AHRN in establishing its ownership of copyright interests in the copied photographs.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 61
    • Craigslist, Inc. v. 3Taps INC., 2013 U.S.Dist. LEXIS 61837 (N.D.Cal.Apr. 30, 2013) ¬ Action for copyright infringement for scraping ads based on license. ¬ “You also expressly grant and assign to [Craigslist] all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).” ¬ “Whether that clause has effect depends on whether users granted Craigslist an exclusive license to the user-created content. "[O]nly the owner of an exclusive right under the copyright is entitled to sue for infringement.“... A party may not assign the right to sue for infringement without also granting an exclusive license or ownership.” ¬ “The Court therefore concludes that the TOU, standing alone, did not grant Craigslistan exclusive license. Without an exclusive license, Craigslist cannot sue for infringement; the TOU provision that purportedly granted Craigslist the right to sue is "impermissible”.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 62
    • Righthaven LLC v Hoehn 2013 WL 1908876 (9th.Cir.May 9, 2013) ¬ “Stephens Media and Righthaven executed a copyright assignment agreement for each article. Each copyright assignment provided that, “subject to [Stephens Media’s] rights of reversion,” Stephens Media granted to Righthaven “all copyrights requisite to have Righthaven recognized as the copyright owner of the Work for purposes of Righthaven being able to claim ownership as well as the right to seek redress for past, present, and future infringements of the copyright . . .in and to the Work.” ¬ “Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so. Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln’s wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 63
    • Layette Minimome Inc c Jarrar, 2013 QCCS 6084 ¬ “But the defendants rely, with reason, that the Act has no application here because the copies were made ​in China, at the request of a resident of Dubai and were sold in the UAE. As the Supreme Court of Canada emphasized in Society of Composers, Authors and Music Publishers of Canada c. Canadian Association of Internet Providers, the Parliament of Canada has the power to legislate with extraterritorial effect, but in the absence of clear words or a necessary deduction to the contrary, it is presumed not to have wanted to do it. Nothing here to conclude that the legislature intended to give extraterritorial effect to the provisions on counterfeiting and nothing in the evidence to conclude that any element of the infringement has taken place in Canada. ¬ The Act is therefore not applicable to the circumstances of the dispute.” (Google translate) McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 64
    • Selzer v Green Day, Inc. 725 F.3d 1170 (9th.Cir. 2013) Seltzer sues rock band and concert effects provider, alleging that unauthorized use of his illustration of screaming face, Scream Icon of a screaming, contorted face. in a video backdrop of band's stage show infringed his copyright. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 65
    • Selzer v Green Day, Inc. 725 F.3d 1170 (9th.Cir. 2013) ¬ “A leading treatise on this topic has lamented the frequent misuse of the transformation test, complaining that it has become a conclusory label which is “all things to all people.” Melville B. Nimmer & David Nimmer, 4 Nimmer on Copyright § 13.05 [A][1][b], 13–168–70 (2011) (internal quotation marks omitted); see also id. at 13–168–69 (listing cases which have “erroneous[ly] with[held]” the transformative label). ¬ The plethora of cases addressing this topic means there is no shortage of language from other courts elucidating (or obfuscating) the meaning of transformation.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 66
    • Seltzer v Green Day, Inc. 725 F.3d 1170 (9th.Cir. 2013) ¬ “Although the law in this area is splintered, as discussed above, our conclusion on transformation is generally in line with other appellate authority on transformative use. In the typical “non-transformative” case, the use is one which makes no alteration to the expressive content or message of the original work.” ¬ “In contrast, an allegedly infringing work is typically viewed as transformative as long as new expressive content or message is apparent. This is so even where—as here—the allegedly infringing work makes few physical changes to the original or fails to comment on the original.” ¬ “We conclude, therefore, that Green Day's use of Scream Icon was transformative. Furthermore, although the statute instructs us to consider the “commercial nature” of a work (and Green Day's concert was undoubtedly commercial in nature) “the degree to which the new user exploits the copyright for commercial gain—as opposed to incidental use as part of a commercial enterprise—affects the weight we afford commercial nature as a factor.”… Green Day's use of Scream Icon was only incidentally commercial; the band never used it to market the concert, CDs, or merchandise. Under these circumstances, the first fair use factor weighs in Green Day's favor.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 67
    • CARIOU v. Prince, 714 F.3d 694, (2nd.Cir.2013) Cariou sues Prince, a well-known appropriation artist based on use of photos of Rastafarians and Jamaican landscape in paintings that were marketed and sold by gallery and owner. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 68
    • CARIOU v. Prince, 714 F.3d 694, (2nd.Cir.2013) ¬ “Prince and Gagosian principally contend on appeal that Prince's work is transformative and constitutes fair use of Cariou's copyrighted photographs, and that the district court imposed an incorrect legal standard when it concluded that, in order to qualify for a fair use defense, Prince's work must “comment on Cariou, on Cariou's Photos, or on aspects of popular culture closely associated with Cariou or the Photos. We agree with Appellants that the law does not require that a secondary use comment on the original artist or work, or popular culture, and we conclude that twenty-five of Prince's artworks do make fair use Cariou's copyrighted photographs. With regard to the remaining five artworks, we remand to the district court, applying the proper standard, to consider in the first instance whether Prince is entitled to a fair use defense.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 69
    • CARIOU v. Prince, 714 F.3d 694, (2nd.Cir.2013) ¬ “Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative. Cariou's black-andwhite photographs were printed in a 9 1/2" x 12" book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs. Prince's composition, presentation, scale, color pal-ette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince's work.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 70
    • CARIOU v. Prince, 714 F.3d 694, (2nd.Cir.2013) ¬ “…as the Supreme Court has recognized, Congress “could not have intended” a rule that commercial uses are presumptively unfair. Campbell, 510 U.S. at 584, 114 S.Ct. 1164 Instead, “[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Id. at 579, 114 S.Ct. 1164. Alt-hough there is no question that Prince's artworks are commercial, we do not place much significance on that fact due to the transformative nature of the work.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 71
    • Bouchat v. Baltimore Ravens Ltd. (4th. Cir. Dec. 17, 2013) ¬ Flying B Logo McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 72
    • Bouchat v. Baltimore Ravens Ltd. (4th. Cir. Dec. 17, 2013) ¬ “The NFL wishes to create narratives about various aspects of its history, including some that transpired between 1996 and 1998, when the Flying B logo represented the Ravens. These videos have told new stories and feature all of the hallmarks of documentary films. They also, of course, contain fleeting, insubstantial images of the Flying B logo. But just as it would have been a terrible shame to prevent Edward Hopper from painting the "Esso" sign in his masterful Portrait of Orleans, so too would it be a mistake to prevent the NFL from using the Flying B logo to create new protected works. See E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1100 (9th Cir. 2008) (noting that under trademark law, the First Amendment protects those uses that have artistic relevance). The NFL may not arouse sympathies in the way that a revered artist does, but the consequences of this case reach far beyond its facts. Society's interest in ensuring the creation of transformative works incidentally utilizing copyrighted material is legitimate no matter who the defendant may be.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 73
    • Bouchat v. Baltimore Ravens Ltd. (4th. Cir. Dec. 17, 2013) “Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts. It would force those wishing to create videos and documentaries to receive approval and endorsement from their subjects, who could "simply choose to prohibit unflattering or disfavored depictions." See IDA Brief at 5. Social commentary as well as historical narrative could be affected if, for example, companies facing unwelcome inquiries could ban all depiction of their logos. This would align incentives in exactly the wrong manner, diminishing accuracy and increasing transaction costs, all the while discouraging the creation of new expressive works. This regime, the logical outgrowth of Bouchat's fair use position, would chill the very artistic creation that copyright law attempts to nurture. “ McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 74
    • The Authors Guild, Inc. v Google Inc. 2013 WL 6017130 (S.D.N.Y. Nov.14, 2013) ¬ “In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 75
    • The Authors Guild, Inc. v Google Inc. 2013 WL 6017130 (S.D.N.Y. Nov.14, 2013) ¬ What is a “fair” treatment of books and other works created in an analog age? Should their authors have a right to negotiate the details of their digital exploitation in a developing online technological marketplace? ¬ Should the transformative nature of digital technologies allow their makers to use fair use to trump exclusive rights? ¬ In a rapidly evolving technological age, what counts as a truly ‘transformative’ and should new uses of works for commercial purposes be viewed as tending to be fair or unfair? ¬ Is it fair that online service providers should be able to reap all of the commercial benefits of new uses of works without paying for such uses? ¬ Should the courts or Congress make policy choices to address copyright issues presented by technological developments? ¬ See, The Google Book project: is it fair use? http://www.barrysookman.com/2014/01/05/the-google-book-project-is-it-fairuse/ McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 76
    • American Institute of Physics v. Schwegman Lundberg & Woessner, PA 2013 WL 4666330 (D.Minn., 2013) “Having weighed all these factors, this Court concludes that Schwegman is entitled to the fair use defense as a matter of law. The record demonstrates no genuine dispute that Schwegman's use of the Articles was new and different than and did not merely supersede the original purpose of the Articles. Also, the undisputed facts demonstrate that the nature of the Articles is predominantly informational. Further, although Schwegman did make complete copies of the Articles in its patent prosecution practice, the only reasonable inference to draw from the record is that Schwegman's copying of the Articles was consistent with the new and different purpose and character of Schwegman's use. And there is no evidence to suggest that Schwegman's copying impacted a traditional, reasonable, or likely to be developed market for the Articles. Thus, all four fair use factors weigh in favor of finding that Schwegman's use in this matter is fair as a matter of law.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 77
    • The Associated Press v. Meltwater U.S. Holdings, Inc (S.D.N.Y, March 21, 2013) ¬ “Examining the four factors individually, and considering them as a whole in light of the purposes of the Copyright Act and the fair use defense, Meltwater has failed to raise a material question of fact to support its fair use defense. Meltwater's business model relies on the systematic copying of protected expression and the sale of collections of those copies in reports that compete directly with the copyright owner and that owner's licensees and that deprive that owner of a stream of income to which it is entitled. Meltwater's News Reports gather and deliver news coverage to its subscribers. It is a classic news clipping service. This is not a transformative use… ¬ Meltwater has attempted to escape the straight forward application of the four-part fair use test by characterizing itself as a search engine. Meltwater has failed to show, however, that its interactions with its subscribers are equivalent in any material way to the functioning of search engines, as that term is commonly understood. Exploitation of search engine technology to gather content does not answer the question of whether the business itself functions as a search engine. In any event, however Meltwater's business is classified, it must still show that its use of copyrighted expressive content was a fair use. This it has not done.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 78
    • Diversey v Schmidly, No. 13-2058 (10th Dec. 23 Cir.2013) ¬ Was the distribution right implicated when a University library listed a work in its library catalog for public lending? ¬ “As Diversey points out, § 106(3) explicitly protects the copyright owner's exclusive right to distribute copies by lending. See Hotaling, 118 F.3d at 203 ("When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public.")… ¬ This is the essence of a violation of the copyright owner's exclusive right to distribute his work via lending…. Peter S. Menell, In Search of Copyright's Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc'y U.S.A. 1, 52-66 (2011) (analyzing the legislative history regarding the distribution right and concluding the requirement of actual distribution of an unauthorized copy is unwarranted).” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 79
    • Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th. Cir. 2013) ¬ “Various film studios alleged that the services offered and websites maintained by Appellants Gary Fung and his company, isoHunt Web Technologies, Inc. (isohunt.com, torrentbox.com, podtropolis.com, and ed2k-it.com, collectively referred to in this opinion as "Fung" or the "Fung sites") induced third parties to download infringing copies of the studios' copyrighted works. The district court agreed, holding that the undisputed facts establish that Fung is liable for contributory copyright infringement. The district court also held as a matter of law that Fung is not entitled to protection from damages liability under any of the "safe harbor" provisions of the Digital Millennium Copyright Act ("DMCA”)…By separate order, the district court permanently enjoined Fung from engaging in a number of activities that ostensibly facilitate the infringement of Plaintiffs' works. ¬ Fung contests the copyright violation determination as well as the determination of his ineligibility for safe harbor protection under the DMCA. He also argues that the injunction is punitive and unduly vague, violates his rights to free speech, and exceeds the district court's jurisdiction by requiring filtering of communications occurring outside of the United States. We affirm on the liability issues but reverse in part with regard to the injunctive relief granted.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 80
    • Disney Enterprises, Inc. v. Hotfile Corp. 2013 WL 6336286 (S.D.Fla.,2013) ¬ “The analysis here, based on precedent, is straightforward. Hotfile controls the means of infringement by among other things mandating user registration and hosting the infringing materials on its own servers.. Moreover, Hotfile has a stated policy that permits it to control user activity (and, as in Fonovisa, to exclude users) and maintains that it has exercised that control in policing content. Hotfile has also adopted technology that it claims is effective in filtering and targeting infringing works. These actions, which benefit Hotfile in an assessment of direct liability, belie Hotfile's argument that it lacks control because it has no search function and no way to identify or remove infringing files. It is also clear that prior to the filing of the Complaint, Hotfile failed to properly exercise its control in light of the number of users who were blatantly infringing and the estimates of the Studios' experts regarding the prevalence of protected content available for download. Accordingly, on this record, the Studios have made a case for vicarious liability, and summary judgment is entered in their favor.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 81
    • Pearson Education, Inc. v. Ishayev, No. 11 Civ. 5052 (PAE), (S.D.N.Y.2013) ¬ “As a matter of law, sending an email containing a hyperlink to a site facilitating the sale of a copyrighted work does not itself constitute copyright infringement. A hyperlink (or HTML instructions directing an internet user to a particular website) is the digital equivalent of giving the recipient driving directions to another website on the Internet. A hyperlink does not itself contain any substantive content; in that important sense, a hyperlink differs from a zip file. Because hyperlinks do not themselves contain the copyrighted or protected derivative works, forwarding them does not infringe on any of a copyright owner's five exclusive rights under § 106.” ¬ “To be sure, if Ishayev had himself uploaded the electronic copies of the manual onto the filesonic.com website, he would then be liable for copyright infringement, assuming plaintiffs had met their burden in showing that more than a de minimis amount of copyrighted material was present in the instructors' manuals.” ¬ “To be sure, "[a]lthough hyperlinking per se does not constitute direct copyright infringement because there is no copying . . . in some instances there may be a tenable claim of contributory infringement or vicarious liability.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 82
    • Football Dataco Ltd & Ors v Stan James Plc & Ors [2013] EWCA Civ 27 (06 February 2013) ¬ Is the operator of a website that offers a pop-up box that links to another site and which, when accessed by a user, will inevitably result in infringement, liable for primary infringement as a joint tort-feasor? ¬ “What is at issue is whether Stan James is a joint-tortfeasor with the UK punters who avail themselves of the pop-up Live Scores on Stan James' website. ¬ What does follow from the fact that Stan James and Sportradar act together is that Stan James' pop-up Live Scores should be treated just as if it were Stan James' own link. ¬ So the question boils down to this: if A has a website containing infringing material which will inevitably be copied into the computer of B if he enters that website, is A a joint tortfeasor with B? I am conscious that this question is important. The answer would seem to apply equally to copyright as to database rights. If the answer is yes, then the owner of any website anywhere in the world will be a joint tortfeasor with a UK user of that website if the inevitable consequence of access to that site by the user is infringement by that user. ¬ I would hold the answer to be yes. The provider of such a website is causing each and every UK user who accesses his site to infringe. His very purpose in providing the website is to cause or procure acts which will amount in law to infringement by any UK user of it. The case is not one of a mere facilitator, such as eBay or Amstrad where the choice to infringe or not ultimately lay with the consumer. Here Stan James is in reality responsible for the punter's infringement.” McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 83
    • Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors [2013] UKSC 18 (17 April 2013) ¬ UK Supreme Court ruled that the exception permitting temporary copying as part of a technical processes in section 28A of the Copyright, Designs and Patents Act 1988, permitted copying in a web browser. ¬ “...it has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form...All that article 5.1 of the Directive achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding that the technical processes involved incidentally include the making of temporary copies within the electronic equipment employed... McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 84
    • American Broadcasting Companies, Inc. v Aereo, Inc. US.Sup.Ct. Docket for 13-461 McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 85
    • Inhale, Inc. v Starbuzz Tobacco, Inc., Case: 12-56331 (9th.Cir. Jan 9, 2014) Copyright in a “hookah” (a device for smoking tobacco)? McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 86
    • Slides available @ barrysookman.com and mccarthy.ca • Underlines in quotes may reflect emphasis added. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca DOCS #13068218 87
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