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Leveraging Jurisdictional Differences in Copyright Litigation
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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.

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

Published in: Education

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  • 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. 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. Factors to consider • Copyright law differences • Procedural differences • Litigant comfort levels • Strategies
  • 4. Copyright law differences • Fair use vs. fair dealing • Freedom of speech • Employees and works for hire • Compulsory licences • Moral rights • Neighbouring rights
  • 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. 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. 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. Procedural differences • Federal Court and provincial courts • Summary infringement proceedings • Costs • Pleadings
  • 9. Litigant comfort levels • Legal differences • Lack of familiarity with local counsel and procedures • Additional costs and inconvenience
  • 10. Strategies • Litigate discrete set of issues in new action • Raise new issues • Change, limit or augment parties • Different timing of proceedings
  • 11. Questions? For a digital copy of these slides, just ask! mark.hayes@blakes.com