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  • 1. regulation of internet commerce class nine - january 15, 2013 professor michael geist university of ottawa, faculty of law
  • 2. Seismic Shifts in Copyright: C-11
  • 3. intermediaries & enforcement
  • 4. Global Approaches• Nothing• Notice and Takedown – Safe harbour contingent on takedown on notification – “Put back” mechanism• Notice and Termination – France, NZ, UK experiment with termination systems• Notice and Notice – Canada, Chile
  • 5. C-11 - Notice & Notice• Copyright holder can send notice: – a) state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant – (b) identify the work or other subject-matter to which the claimed infringement relates; – (c) state the claimant’s interest or right with respect to the copyright in the work or other subject-matter; – (d) specify the location data for the electronic location to which the claimed infringement relates; – (e) specify the infringement that is claimed; – (f) specify the date and time of the commission of the claimed infringement; and – (g) contain any other information that may be prescribed by regulation.
  • 6. C-11 - Notice & Notice• Once receive valid notice, ISP will: – Forward notification to subscriber (or explain why can’t forward it to claimant) – Retain records for six months – If proceedings launched within six months, retain for a year• Damages for ISP - $5,000 to $10,000• Fee for service can be set by government (if no fee set, no fee)• Government working on regulations for this issue
  • 7. C-11 - ILTs• Provider of “any tool that makes it possible to locate information that is available through the Internet or another digital network”• Only injunctive relief if: – Caches – Communicates to public – Does not modify (except for technical reasons) – Complies with robot.txt files – No interference
  • 8. C-11 - Enabler Provision• “It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable 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.”• Factors: – Express or implicit marketing – Knowledge – Uses other than copyright infringement – Ability to limit copyright infringement – Benefits to person – Viability of service without copyright infringement
  • 9. C-11 - Statutory Damages• Distinguish between commercial & non-commercial – Commercial • Between $500 and $20,000 per infringement – Non-Commercial • From $100 to $5,000 for all infringements
  • 10. Seismic Shifts in Copyright: SCC
  • 11. Theberge - 2002• “transfer” of image from poster to canvass• Artists sues gallery for reproduction• Split court concludes reproduction requires more than one copy – this a “transfer”
  • 12. “Excessive control by holders of copyrights and other forms of intellectual property mayunduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”
  • 13. CCH - 2004• Longstanding case between Law Society of Upper Canada and legal publishers• Focus on two forms of copying: – Copying at photocopiers within the Great Library – Copying on request from legal community• Court concludes no infringement – Strong endorsement of fair dealing – Concept of “users’ rights” introduced – Fair dealing always available – Large and liberal interpretation – High standard for authorization of infringement
  • 14. “the fair dealing exception is perhaps moreproperly understood as an integral part of theCopyright Act than simply a defence. Any act falling within the fair dealing exception willnot be an infringement of copyright. The fairdealing exception, like other exceptions in theCopyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”
  • 15. “The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or privatestudy. “Research” must be given a large and liberal interpretation in order toensure that users’ rights are not unduly constrained. I agree with the Court of Appeal that research is not limited to non-commercial or private contexts.”
  • 16. “The amount taken may also be more orless fair depending on the purpose. For example, for the purpose of research orprivate study, it may be essential to copy an entire academic article or an entire judicial decision.”
  • 17. “Persons or institutions relying on the s.29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of researchor private study and were fair. They may do this either by showing that their ownpractices and policies were research-basedand fair, or by showing that all individual dealings with the materials were in fact research-based and fair.”
  • 18. The Copyright Pentalogy (2012)
  • 19. ESAC v. SOCAN• SOCAN seeks compensation for the communication of sound recording in downloaded software game• ESAC argues already licensed music• No additional fee if purchase physical game. Unfair to treat downloaded version differently• Court sides with ESAC• Strong endorsement of technological neutrality in copyright
  • 20. “there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, ordownloading an identical copy using the Internet. The Internet is simply atechnological taxi that delivers a durablecopy of the same work to the end user.”
  • 21. “The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, weinterpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on themethod of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.”
  • 22. SOCAN v. Bell• Song previews case• Is compensation required for the playing song previews on music services such as iTunes?• Bell et al argue that the song preview is fair dealing because it is consumer research• SOCAN argues: – research should be interpreted more restrictively – Aggregate amount of copying should be considered• SCC sides with Bell – song previews are fair dealing
  • 23. “Limiting research to creative purposes would also run counter to the ordinary meaning of "research", which can include many activitiesthat do not demand the establishment of new facts or conclusions. It can be piecemeal,informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose exceptpersonal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework..”
  • 24. “In mandating a generous interpretation of the fair dealing purposes, including "research", the Court in CCH created arelatively low threshold for the first step so that the analytical heavy-hitting isdone in determining whether the dealing was fair.”
  • 25. “There is no doubt that the aggregatequantity of music heard through previews is significant, but SOCANs argument conflicts with the Courts statement in CCH that "amount" means the "quantity of the work taken" (para. 56). Since fairdealing is a "users" right, the "amount of the dealing" factor should be assessed based on the individual use, not the amount of the dealing in the aggregate.”
  • 26. Alberta v. Access Copyright• Appeal of Fed CA review of Copyright Board’s ruling in Access Copyright tariff for K-12• Background study – Excludes copying with permission (88% of all copying) – Excludes fair dealing, public domain, etc. (5% of all copying) – Certain copies provided by teacher or instructed by teacher (7% of copying)• Battle is over the instructional copies – schools say fair dealing, Access Copyright says no. Copyright Board says no.• Copyright Board’s fair dealing analysis at issue• Access Copyright argues fair dealing doesn’t include instruction, not private study, aggregate copying, economic harm• SCC sides with schools – Board’s analysis “unreasonable”
  • 27. “photocopies made by a teacher andprovided to primary and secondary school students are an essential element in theresearch and private study undertaken bythose students. The fact that some copies were provided on request and otherswere not, did not change the significance of those copies for students engaged in research and private study.”
  • 28. “Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of "instruction"; they are there to facilitate the studentsresearch and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers...”
  • 29. “…they study what they are told to study,and the teachers purpose in providing copiesis to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.”
  • 30. “With respect, the word "private" in "privatestudy" should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning areessentially personal endeavours, whether theyare engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers instruction from the students studying”
  • 31. “First, unlike the single patron in CCH, teachers do not make multiple copies of the class set fortheir own use, they make them for the use of the students. Moreover, as discussed in the companion case SOCAN v. Bell, the "amount" factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated.”
  • 32. “Under the Boards approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaperin Access Copyrights repertoire that is relied on by a teacher. This is a demonstrably unrealistic outcome. Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students research and private study..”
  • 33. “other than the bald fact of a decline in salesover 20 years, there is no evidence from Access Copyright demonstrating any link betweenphotocopying short excerpts and the decline in textbook sales”
  • 34. User Rights Now: Fair Dealing• Two part test: 1. Is the copying for a specified purpose? 2. If yes, it is fair dealing based on the six factor test?
  • 35. User Rights Now: Fair Dealing• Part One: Specified Purpose – Research, private study, news reporting, criticism, review (current) – Education, parody, satire (C-11) “In mandating a generous interpretation of the fair dealing purposes, including "research", the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair.”
  • 36. User Rights Now: Fair Dealing• Part Two: Six Factor Test1.Purpose of the dealing2.Character of the dealing3.Amount of the dealing4.Alternatives5.Nature of the work6.Effect of the dealing on the work
  • 37. User Rights Now: Fair Dealing1. Purpose of the dealing- broad interpretation of research- private study is personal study, includes instruction
  • 38. User Rights Now: Fair Dealing2. Character of the dealingIn assessing the character of a dealing, courts must examinehow the works were dealt with. If multiple copies of worksare being widely distributed, this will tend to be unfair. If,however, a single copy of a work is used for a specificlegitimate purpose, then it may be easier to conclude that itwas a fair dealing. If the copy of the work is destroyed after itis used for its specific intended purpose, this may also favoura finding of fairness.
  • 39. User Rights Now: Fair Dealing2. Character of the dealingSOCANs argument was based on the fact that consumers accessed, on average, 10 times the number of previews as full-length musical works. However, no copy existed after the preview was heard. The previews were streamed, not downloaded. Users did not get a permanent copy, and once the preview was heard, the file was automatically deleted from the users computer. The fact that each file was automatically deleted meant that copies could not be duplicated or further disseminated by users.
  • 40. User Rights Now: Fair Dealing3. Amount of the Dealing“If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”
  • 41. User Rights Now: Fair Dealing3. Amount of the Dealing“The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.”
  • 42. User Rights Now: Fair Dealing4. Alternatives“Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non- copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court.”
  • 43. User Rights Now: Fair Dealing4. Alternatives“The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a persons decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owners monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Acts balance between owners rights and users interests.”
  • 44. User Rights Now: Fair Dealing4. Alternatives“buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks. First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies. The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them. In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Boards finding that teachers only photocopy short excerpts to complement existing textbooks.”
  • 45. User Rights Now: Fair Dealing5. Nature of the work“The nature of the work in question should also beconsidered by courts assessing whether a dealing is fair.Although certainly not determinative, if a work has not beenpublished, the dealing may be more fair in that itsreproduction with acknowledgement could lead to a widerpublic dissemination of the work - one of the goals ofcopyright law. If, however, the work in question wasconfidential, this may tip the scales towards finding that thedealing was unfair.”
  • 46. User Rights Now: Fair Dealing6. Effect of the dealing on the work“the effect of the dealing on the work is another factorwarranting consideration when courts are determiningwhether a dealing is fair. If the reproduced work is likely tocompete with the market of the original work, this maysuggest that the dealing is not fair. Although the effect of thedealing on the market of the copyright owner is an importantfactor, it is neither the only factor nor the most importantfactor that a court must consider in deciding if the dealing isfair.”
  • 47. User Rights Now: Fair Dealing6. Effect of the dealing on the work“In CCH, the Court concluded that since no evidence hadbeen tendered by the publishers of legal works to show thatthe market for the works had decreased as a result of thecopies made by the Great Library, the detrimental impact hadnot been demonstrated. Similarly, other than the bald fact ofa decline in sales over 20 years, there is no evidence fromAccess Copyright demonstrating any link betweenphotocopying short excerpts and the decline in textbooksales.”