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Operating as a Canadian Business Under the New “User-Focused” Copyright Act - MaRS Best Practices

As of November 2012, Canada has a new Copyright Act that has been commonly identified as “user-focused.” This raises the question: What does the new Copyright Act mean for Canadian businesses?

In this presentation, we discuss:

-How the new act affects Canadian businesses, particularly innovative industries.
-What has changed and what remains the same for commercial copyright owners.
-What a business needs to know to protect its copyright and to keep from infringing the copyright of others.

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Operating as a Canadian Business Under the New “User-Focused” Copyright Act - MaRS Best Practices

  1. 1. Operating as a Canadian Business Under the New “User-Focused” Copyright Act Karen Durell MaRS Best Practices Series April 16, 2013
  2. 2. Conversion from IDEA to Intellecutal Property1)  Informal Knowledge 2) Formal Knowledge Human Resources Codified Assets InformationKnowledge of Contributors Designs Products 3) Protected Knowledge Intellectual Property Patents Trademarks Copyright, etc.
  3. 3. Types of Intellectual Property•  Industrial Designs •  Knowledge •  Know-How •  Patents •  Copyright •  Integrated Circuit Topography•  Trade Secret •  Trade-marks •  Plant Breeder’s Rights
  4. 4. Each Intellectual Property Right is Distinct“trade‑mark law should not be used to perpetuatemonopoly rights enjoyed under now‑expired patents” Kirkbi AG v. Ritvik Holdings Inc., [2005] 3 S.C.R. 302
  5. 5. Patents
  6. 6. Industrial Design
  7. 7. Trade-marks & Branding COKE ZERONIKE
  8. 8. CopyrightProtection for the expression of an idea
  9. 9. Copyright Protection CORPORATIONS AND INTELLECTUAL ASSETS:A CASE OF BEING BLINDED BY THE ECONOMIC VALUE Karen Lynne Durell, Faculty of Law, McGill University, Montreal Death of a August, 2004 A thesis submitted to McGill University in partial fulfilment of the requirements of the degree of M.C.L. Salesman - Software Code; - Manuals; -  Drawings/Layouts; -  This Powerpoint Slide; - Etc…….
  10. 10. Copyright Extended to… Dramatic works Photographs Musical works Artistic worksCopyright Act ≠ “One-Size-Fits-All” Literary works Sound recording Performers` performances Cinematrographic work
  11. 11. Does Copyright Exist?Not solely a matter of establishing “Originality”… Copyright Test = Originality must exist, meaning: •  More than mere copy of another work •  Exercise of skill and judgement & Intellectual effort –  Chief Justice McLachlin in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004
  12. 12. Canadian Copyright Act2005   Bill  C-­‐60   (Liberal  Minority  Gov’t)  2008   Bill  C-­‐61   (Conserva:ve  Minority  Gov’t)  2010   Bill  C-­‐32   (Conserva:ve  Minority  Gov’t)  2011   Bill  C-­‐11   (Conserva:ve  Gov’t)   -­‐  Iden:cal  to  Bill  C-­‐32   -­‐  Royal  Assent  on  June  29,  2012   -­‐  Parts  in  force  November  7,  2012   -­‐  Parts  s:ll  to  come  into  force  
  13. 13. Artists blast record companies over lawsuits against downloaders Joel Selvin, Neva Chonin, Chronicle Pop Music Critics Published 4:00 am, Thursday, September 11, 2003 Artists’ lawsuit: major record labels are the real piratesBetween $50 million and $6 billion may be owed to musicians and artists in … by Jacqui Cheng - Dec 7 2009, 1:51pm EST, ArsTechnica BALANCE? On September 8, 2003, the recording industry sued 261 American music fans for sharing songs on peer- to-peer (P2P) file sharing networks, kicking off an 1999: The Recording Industry Association unprecedented legal campaign against the people of America sues Napster, the online, that should be the recording industry’s best peer-to-peer file sharing service that’s customers: music fans allowing millions of computer users to score free, copyright music. The rules are about to change.
  14. 14. Overriding Change in New Act•  Compliance with WIPO treaties (1996)•  Division between Commercial & Non-Commercial Acts “legitimizes activities that Canadians do every day. For example, it recognizes that Canadians should not be liable for recording TV programs for later viewing, copying music from CDs to MP3 players, or backing up data if they are doing so for their private use and have not broken a digital lock.” -  Government of Canada•  Certainty for innovative companies necessary to: “develop products and services that involve legitimate uses of copyright material” - Government of Canada
  15. 15. Copyright Provides (Generally)Copyright = sole right to produce or reproduce work; perform work in public; to publish and rent work; to prevent others from copying a work without permissionRegistration: not required (Virtually-international right)Term = Life of the author plus 50 years (generally in Canada); or from first publication plus 50 years (e.g., cinematographic works, performer’s performance fixed in a sound recording, communication signal…)NOTE: Can file Copyright with the Canadian Copyright Office
  16. 16. International Copyright Example HAPPY BIRTHDAY SONG & COPYRIGHT•  1893: Tune written and composed by sisters Patty Hill & Milrded Hill –  “Good Morning to All” (published as kindergarten song)•  1912: “Happy Birthday” lyrics first printed•  1935: Registration of copyright for Happy Birthday song•  1946: Patty Hill died (after Mildred Hill was already deceased)Copyright Expiration•  1996: Copyright expired in Canada –  (Canadian laws = Life of author + 50 years)•  2016: Copyright will expire in Europe –  (EU laws = Life of author + 70 years)•  2030: Copyright will expire in the U.S. – according to owner –  (U.S. copyright laws = Life of author + 70 years)
  17. 17. Who Owns Copyright?First Owner is any of the following under the Act: –  First sole creator/author (even photographers) –  Co-creation = joint ownership –  “Work for Hire” NOTE: First Owner can be contractually designated
  18. 18. A Copyright Owner Can…License Copyright –  Authorization for a third party to use your copyrightAssign Copyright –  Transfer whole or partial rights to another owner –  Must be in writing and signed by the owner NOTE: Can File an Assignment or License Agreement with the Copyright Office NOTE: To follow chain of title and understand rights of use mustknow terms of any open source licensed content of software work (maybe commercial use is probhibited)
  19. 19. Moral Rights•  New Act Extends Moral Rights to Performers’ Performances“Moral rights, which are not assignable, treat the œuvre as an extension of the artist’s personality, possessing a dignity which is deserving of protection. The integrity of the work is infringed only if the work is modified to the prejudice of the honour or reputation of the author. Moral rights act as a continuing restraint on what purchasers can do with a work once it passes from the author” = Distinct from economic rights (Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336) NOTE: Include Waiver of Moral Rights in Contracts
  20. 20. Fair Dealing•  Fair Dealing (e.g., it is not an infringement to use copyright for): –  Research, private study, –  Education, parody or satire (New) –  Criticism or review –  News reporting
  21. 21. Other New Non-Infringing Uses of Copyright•  Reproduction for private •  Educational institution purposes •  Back-up copies•  Reproduction for later listening or viewing•  Non-commercial user generated content•  Libraries, Archives, Museums
  22. 22. Penalties for Infringement•  Commercial vs. Non-Commercial Damages –  Non-commercial infringer = may have statutory damages limited to $100 - $5,000 –  Commercial infringer = upto $20,000 per infringement NOTE: Reduced likelihood of infringement suit against individuals NOTE: Free access to a website is not necessarily indicative of a non-commercial website
  23. 23. Digital Locks•  Technological Protection Measure = Digital Lock –  Breaking/circumvention allowed for: •  Encryption research, making computer programs interoperable, investigation related to the enforcement of any Act of Parliament for national security, lack of a notice indicating that use of a work will permit a third party to collect and communicate personal information relating to a user, provide work to person with perceptual disability, etc. –  Not infringement to merely possess tools or software capable of breaking or circumventing digital locks NOTE: Intended to improve ability of owner to control online use of works
  24. 24. ISPs & Search EnginesNot an Infringement to Act as ISP or Search Engine (Network Services Provision) … Unless ISP or Digital Network Service is Enabling Infringement (Enabler Provision)
  25. 25. Rights Management InformationA person who removes or alters Rights Management Information is infringing copyright –  Includes: works; performer’s performances fixed in sound recordings; and sound recordings –  same remedies as are available for infringement
  26. 26. Still to come…Notice-and-Notice Provisions NOTE: No implementation of notice-and-takedown or notice-and-termination provisions in Canada
  27. 27. QuestionsKaren Durell416.595.7913kdurell@millerthomson.com

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