Leveraging Jurisdictional Differences in Copyright Litigation

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Discussion of differences between copyright law in Canada and the United States and when plainitff should consider parallel actions to encourage settlement.

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Leveraging Jurisdictional Differences in Copyright Litigation

  1. 1. Leveraging Jurisdictional Differences in Cross-Border Copyright Litigation Mark S. Hayes Blake, Cassels & Graydon LLP OBA Institute 2009 Toronto, Ontario February 2, 2009
  2. 2. The Opportunity • Copyright is primarily a national right • Many copyright infringements occur simultaneously in multiple jurisdictions – Use of infringing material in a internationally distributed work that incorporates many smaller works – Exploitation of copyright works over the Internet • When can parallel Canadian action advance the interests of a copyright owner?
  3. 3. Factors to consider • Copyright law differences • Procedural differences • Litigant comfort levels • Strategies
  4. 4. Copyright law differences • Fair use vs. fair dealing • Freedom of speech • Employees and works for hire • Compulsory licences • Moral rights • Neighbouring rights
  5. 5. Fair use vs. fair dealing • US “fair dealing” is very flexible and allows for a great deal of judicial discretion • Canadian “fair dealing” imports some of the US balancing rules, but categories are limited – research or private study – criticism or review – news reporting • No parody, no time or format shifting
  6. 6. Employees and works for hire • U.S. Copyright Act "work for hire“: – created by an employee within scope of employment – work is "specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work” if parties expressly agree in written instrument signed by them that work shall be considered work made for hire • Commissioner is both author of work and first owner of copyright
  7. 7. Employees and works for hire • Canadian copyright law – If work is by employee, employer is first owner of copyright but employee is author • Employee has moral rights and term is calculated based on employee’s life span – If work is by contractor, contractor is first owner of copyright and author • Commissioner of work may obtain written assignment of copyright, but contractor has moral rights and term is calculated based on contractor’s life span • Copyright will revert to heirs of contractor 25 years after contractor ‘s death
  8. 8. Procedural differences • Federal Court and provincial courts • Summary infringement proceedings • Costs • Pleadings
  9. 9. Litigant comfort levels • Legal differences • Lack of familiarity with local counsel and procedures • Additional costs and inconvenience
  10. 10. Strategies • Litigate discrete set of issues in new action • Raise new issues • Change, limit or augment parties • Different timing of proceedings
  11. 11. Questions? For a digital copy of these slides, just ask! mark.hayes@blakes.com

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