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ALAI Canada: Colloque Annual

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ALAI Canada: Colloque Annual

  1. 1. McCarthy Tétrault Advance™ Building Capabilities for Growth ALAI CANADA: COLLOQUE ANNUEL Copyright and Technology: Challenges to Authors and Copyright Holders Barry B. Sookman Direct Line: (416) 601-7949 E-Mail: bsookman@mccarthy.ca January 26, 2016 McCarthy Tétrault LLP / mccarthy.ca / 15202446
  2. 2. Introduction ¬ Technology brings new challenges to every facet of copyright ¬ Changing public and judicial attitudes ¬ Copyright reform, ACTA, TPP ¬ Polarization, activism, risk taking ¬ How will our copyright regime adapt to changing technologies? ¬ Who will benefit? McCarthy Tétrault LLP / mccarthy.ca / 15202446 2
  3. 3. Challenges - exclusive rights McCarthy Tétrault LLP / mccarthy.ca / 15202446 3 Do you need permission to link? Here's my table attempting a summary of recent CJEU case law, IPKat, October 11, 2015 @ http://ipkitten.blogspot.ca/2015/10/do-you-need-permission-to-link-heres-my.html • Does the MAR extend to all means of making content available? • What copying will be regarded as reproductions? • Scope of secondary liability.
  4. 4. Challenges – exclusive rights ¬ What is a communication, who communicates to the public, and makes copies? ¬ Network clouds? Cartoon Network LP v CSC Holdings Inc 536 F 3d 121 (Cablevision) (2nd Cir 2008), RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd [2010] SGCA 43, National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd, [2012] FCAFC 59 (April 2012) ¬ Internet retransmission? American Broadcasting v. Aereo, Inc., 134 S. Ct. 2498 (2014) ¬ Digital exhaustion/resale right? Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013) McCarthy Tétrault LLP / mccarthy.ca / 15202446 4
  5. 5. Challenges – intermediaries ¬ Responsibility for reducing infringements carried out using intermediary networks: ¬ Notice and notice: Sony Music Entertainment (Ireland) Limited v UPC Communications Ireland Limited (No.1) [2015] IEHC 317 ¬ Have and implement a repeat infringer policy: BMG Rights Management (US) LLC v Cox Communications, Inc. No. 1:2014cv01611, (E.D. Va. Dec 1, 2015) ¬ Blocking and de-indexing orders: Cartier International AG & Ors v British Sky Broadcasting Ltd & Ors [2014] EWHC 3354 (Ch) (17 October 2014) McCarthy Tétrault LLP / mccarthy.ca / 15202446 5
  6. 6. Challenges - exceptions and limitations ¬ “…issues of ownership and fair play are at the heart of The Authors Guild’s lawsuit against internet giant Google, which has, without permission from authors and without paying for their copyrighted material, digitized millions of their books while ignoring, as if these were irrelevant, their creators’ claims to ownership. Google has justified this theft by arguing that the use they were making of our property was “transformative,” a public service. They wouldn’t be selling our books for profit, just providing a research tool that displays only snippets, which would fall under the doctrine of “fair use.” ¬ “Nor should Google’s avowed altruism go unchallenged. Their use of our intellectual property enhances both the quality and value of their search engine, which in turn gives them an advantage over competitors. It’s completely disingenuous for them to argue that their behavior is selfless when it leads directly to an improved bottom line and increases their value as a corporation.” Richard Russo [Authors Guild Council member] on Authors Guild v. Google, Jan 6, 2016 McCarthy Tétrault LLP / mccarthy.ca / 15202446 6
  7. 7. Challenges – fair remuneration ¬ “the low payment of creators, composers, songwriters and performers is today the most visible part of the impact caused by technological advances in the use of protected works in the digital environment…despite the fact that digital technology has allowed a wider access to music by society as never before, there are questions about the importance that has been attributed to these creators and performers and if it is enough.” WIPO, Proposal for Analysis of Copyright related to the Digital Environment, Group of Latin American and Caribbean Countries (GRULAC) , SCCR/31/4, Dec. 1, 2015. ¬ Commercial webcasters pay “Webcast 10.2¢ per thousand plays”. “In the United States, for 2012, the rate that webcasters must pay for the same rights when their sole business is webcasting is $1.10 per thousand plays (the “Pureplay rate”).” Copyright Board, Fact Sheet, May 16, 2014. ¬ Does private copying cause de minimis harm? British Academy of Songwriters, Composers And Authors v Secretary of State for Business, Innovation And Skills [2015] EWHC 1723 (Admin) (19 June 2015) McCarthy Tétrault LLP / mccarthy.ca / 15202446 7
  8. 8. Challenges – Culture ¬ “Authors’ incomes are dropping… And a [PWC] study on the longer-term implications shows a decline in writing and publishing for the learning population; investment to create Canadian educational materials drying up; writers abandoning projects that could be of use to students; and the choice and quality of educational materials available to students steadily dropping.” ¬ “The danger is that students at Canadian schools, colleges and universities will graduate without having read enough of the Canadian stories, the Canadian research, the Canadian approach to policy to feel that they are part of the larger space-time continuum…” Heather Menzies (Chair Writers Union) The copyright act needs to be edited – for writers’ survival, Globe & Mail Jan. 14, 2016 ault LLP / mccarthy.ca / 15202446 8
  9. 9. Challenges – technological neutrality “In the absence of law or specific legal provisions on the use of protected intellectual goods in the digital environment traditional rights are often interpreted by analogy or conceptual proximity of legal theories originally envisaged for the physical environment. This exercise usually ignores the fact that many aspects of the physical environment are difficult to apply in the digital environment.” WIPO, Proposal for Analysis of Copyright related to the Digital Environment, presented by the Group of Latin American and Caribbean Countries (GRULAC) , SCCR/31/4, Dec. 1, 2015 McCarthy Tétrault LLP / mccarthy.ca / 15202446 9
  10. 10. Goals of Copyright – why it matters McCarthy Tétrault LLP / mccarthy.ca / 15202446 10
  11. 11. McCarthy Tétrault LLP / mccarthy.ca / 15202446 11 Copyright creates incentives to create and distribute Works “Intellectual property laws originated in order to protect the promulgation of ideas. Copyright law provides incentives for innovators -artists, musicians, inventors, writers, performers and marketers - to create. It is designed to ensure that ideas are expressed and developed instead of remaining dormant. Individuals need to be encouraged to develop their own talents and personal expression of artistic ideas, including music. If they are robbed of the fruits of their efforts, their incentive to express their ideas in tangible form is diminished.” BMG Canada Inc.v John Doe 2005 FCA 193
  12. 12. McCarthy Tétrault LLP / mccarthy.ca / 15202446 12 Copyright prevent “unfair” appropriation of efforts (historical view) ¬ The moral basis of copyright rests on the 8th commandment ‘Thou shalt not steal’”. MacMillan & Co. Ltd. v. Cooper (1923), 40 T.L.R. 186 (P.C.) per Lord Atkinson ¬ Bishop v. Stevens [1990] 2 S.C.R. 467 Justice McLachlin of the Supreme Court of Canada stated that the Copyright Act “was passed with a single object, namely, the benefit of authors of all kinds”. ¬ Vigneux v. Canadian Performing Rights Society, [1943] S.C.R. 348, reversed [1945] A.C. 108 (Canada P.C.). Justice Duff stated that the purpose of copyright is to prevent persons from “unfairly availing themselves of the work of others” and that the “protection of authors … is the object to be attained by all patent and copyright laws.”
  13. 13. McCarthy Tétrault LLP / mccarthy.ca / 15202446 13 Rational for Copyright (modern view) “The Copyright Act is usually presented as 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 (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated).” Théberge v. Galerie d'Art du Petit Champlain inc. (2002), 17 C.P.R. (4th) 161 (S.C.C.)
  14. 14. Rational for Copyright (modern view) ¬ “Théberge reflected a move away from an earlier, author- centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace: see e.g. Bishop v. Stevens, [1990] 2 S.C.R. 467, at pp. 478-79. Under this former framework, any benefit the public might derive from the copyright system was only “a fortunate by-product of private entitlement”… ¬ “Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain.” SOCAN v. Bell Canada, [2012] 2 SCR 326 14McCarthy Tétrault LLP / mccarthy.ca / 15202446 14
  15. 15. Rational for Copyright (modern view) ”To be sure, Théberge demonstrates how this Court’s understanding of the purpose of the Copyright Act has evolved since the pronouncement in Bishop that the “single object” of the Act was to benefit authors: Bishop, at pp. 478-79, quoting Performing Rights Society v. Hammond’s Bradford Brewery Co., [1934] 1 Ch. 121, at p. 127. Théberge observed that, when weighing competing policy interests under copyright, “[t]he proper balance . . . lies not only in recognizing the creator’s rights but in giving due weight to their limited nature”: para. 31.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 15McCarthy Tétrault LLP / mccarthy.ca / 15202446 15
  16. 16. Canada’s Framework for Addressing Technology Challenges McCarthy Tétrault LLP / mccarthy.ca / 15202446 16
  17. 17. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Originality “As mentioned, in Théberge, supra, this Court stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation… By way of contrast, when an author must exercise skill and judgment to ground originality in a work, there is a safeguard against the author being overcompensated for his or her work. This helps ensure that there is room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others…” CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 17
  18. 18. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Originality “Requiring that an original work be the product of an exercise of skill and judgment is a workable yet fair standard. The “sweat of the brow” approach to originality is too low a standard. It shifts the balance of copyright protection too far in favour of the owner’s rights, and fails to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works. On the other hand, the creativity standard of originality is too high. A creativity standard implies that something must be novel or non- obvious — concepts more properly associated with patent law than copyright law. By way of contrast, a standard requiring the exercise of skill and judgment in the production of a work avoids these difficulties and provides a workable and appropriate standard for copyright protection that is consistent with the policy objectives of the Copyright Act.” CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 18
  19. 19. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Authorization “Authorize” means to “sanction, approve and countenance” … Countenance in the context of authorizing copyright infringement must be understood in its strongest dictionary meaning, namely, “give approval to, sanction, permit, favour, encourage…Authorization is a question of fact that depends on the circumstances of each particular case and can be inferred from acts that are less than direct and positive, including a sufficient degree of indifference… However, a person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law…This presumption may be rebutted if it is shown that a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement.” CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 19
  20. 20. McCarthy Tétrault LLP / mccarthy.ca / 15202446 ¬ Court rejected Moorhouse decision which held that there can be infringement if a person: (1) has under his control the means by which an infringement of copyright may be committed “such as a photocopying machine;” (2) makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and (3) omits to take reasonable steps to limit its use to legitimate purposes. ¬ Moorhouse was rejected because it “shifts the balance in copyright too far in favour of the owner's rights and unnecessarily interferes with the proper use of copyrighted works for the good of society as a whole”. CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 Authorization 20
  21. 21. Communication to the public “Ultimately, in determining the extent of copyright, regard must be had for the fact that “[t]he Copyright Act is usually presented as 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” (Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336, at para. 30). This balance is not appropriately struck where the existence of copyright protection depends merely on the business model that the alleged infringer chooses to adopt rather than the underlying communication activity. Whether a business chooses to convey copyright protected content in a traditional, “broadcasting” type fashion, or opts for newer approaches based on consumer choice and convenience, the end result is the same. The copyrighted work has been made available to an aggregation of individuals of the general public.” Rogers Communications Inc v SOCAN, 2012 SCC 35 McCarthy Tétrault LLP / mccarthy.ca / 15202446 21
  22. 22. Communication and MAR ¬ “…the right to “communicate” is historically connected to the right to perform a work and not the right to reproduce permanent copies of the work… ¬ The right to perform historically presupposed a live audience that would be present at the site where the performance took place… ¬ we agree with Rothstein J. (at para. 98) that there is a “historic relationship” between the performance right and the communication right in the Copyright Act, but we disagree with his conclusion that Parliament intended to sever this relationship based on the 1988 amendments. In our view, this historical connection between communication and performance still exists today.” ESA v SOCAN [2012] 2 SCR 231 ¬ Did the 2012 CMA amendments change the law? McCarthy Tétrault LLP / mccarthy.ca / 15202446 22
  23. 23. Reproduction ¬ “The ordinary meaning of the text of the Copyright Act indicates that broadcast-incidental copying activities do engage the reproduction right… ¬ There is nothing in the text, context or legislative history of these provisions (or s. 3(1)) that supports the view that the broadcasting process obviates the fact that broadcast-incidental copies are reproductions under the Copyright Act. Arguments based on purpose in the form of technological neutrality and balance are advanced to come to the opposite conclusion, but purposive construction is a tool of statutory interpretation to assist in understanding the meaning of the text. It is not a stand-alone basis for the Court to develop its own theory of what it considers appropriate policy. Accordingly, the Board was correct in proceeding on the basis that broadcast incidental copies engage the reproduction right under s. 3(1)(d) of the Copyright Act.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 McCarthy Tétrault LLP / mccarthy.ca / 15202446 23
  24. 24. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Fair Dealing “…the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright 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. As Professor Vaver, supra, has explained, at p. 171: ‘User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’” CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 (emphasis added) 24
  25. 25. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Fair Dealing “…in considering whether previews are for the purpose of “research” under the first step of CCH, the Board properly considered them from the perspective of the user or consumer’s purpose. And from that perspective, consumers used the previews for the purpose of conducting research to identify which music to purchase, purchases which trigger dissemination of musical works and compensation for their creators, both of which are outcomes the Act seeks to encourage.” SOCAN v. Bell Canada, [2012] 2 SCR 326, “As noted in the companion appeal SOCAN v. Bell, fair dealing is a “user’s right”, and the relevant perspective when considering whether the dealing is for an allowable purpose under the first stage of CCH is that of the user”. Alberta (Education) v. Access Copyright, [2012] 2 SCR 345 25
  26. 26. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Fair Dealing ¬ “When the Great Library staff make copies… they do so for the purpose of research. Although the retrieval and photocopying of legal works are not research in and of themselves, they are necessary conditions of research and thus part of the research process. The reproduction of legal works is for the purpose of research in that it is an essential element of the legal research process. There is no other purpose for the copying; the Law Society does not profit from this service.” ¬ "Dealing" connotes not individual acts, but a practice or system... 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 research or private study and were fair. They may do this either by showing that their own practices and policies were research- based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair.” CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 26
  27. 27. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Fair Dealing “In CCH, the Court concluded that since no evidence had been tendered by the publishers of legal works to show that the market for the works had decreased as a result of the copies made by the Great Library, the detrimental impact had not been demonstrated. Similarly, other than the bald fact of a decline in sales over 20 years, there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales.” Alberta (Education) v. Access Copyright, [2012] 2 SCR 345 27
  28. 28. Technological Neutrality - Principle ¬ “The principle of technological neutrality is recognition that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted or applied to favour or discriminate against any particular form of technology.” ¬ “The Federal Court of Appeal set out a fair reading of ESA when it described it as establishing that “[t]echnological neutrality is determined by functional equivalence: para. 39.” ¬ “technological neutrality required the consideration of the difference between the old and new forms of delivery of works. In the absence of any difference between them, no separate right was engaged.” ¬ ““an additional layer of protections and fees” [should] not be imposed based solely on technological change: ESA, at para. 9.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 McCarthy Tétrault LLP / mccarthy.ca / 15202446 28
  29. 29. Technological Neutrality - Source “It is derived from the balancing of user and right- holder interests discussed by this Court in Théberge — 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”: para. 30. Because this long-standing principle informs the Copyright Act as a whole, it must be maintained across all technological contexts: “The traditional balance between authors and users should be preserved in the digital environment”: ESA, at para. 8.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 McCarthy Tétrault LLP / mccarthy.ca / 15202446 29
  30. 30. Technological Neutrality - Role ¬ “The Copyright Act as a whole is to be read having regard to the principles of technological neutrality and balance, unless its text indicates otherwise.” ¬ “the principles of balancing user and right-holder interests and of technological neutrality are central to Canadian copyright law, they cannot change the express terms of the Copyright Act.” ¬ “Arguments based on purpose in the form of technological neutrality and balance are advanced to come to the opposite conclusion, but purposive construction is a tool of statutory interpretation to assist in understanding the meaning of the text. It is not a stand-alone basis for the Court to develop its own theory of what it considers appropriate policy.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 McCarthy Tétrault LLP / mccarthy.ca / 15202446 30
  31. 31. Technological Neutrality - Valuation ¬ “Overall, the Board’s valuation analysis must comport with the Copyright Act’s fundamental requirement to recognize technological neutrality and balance between user and right- holder interests.” ¬ “…where the right is engaged, the issue becomes one of valuation of that right, and the principles of technological neutrality and balance must be adapted to the valuation context.” ¬ “In the regulatory context, the principle of technological neutrality applies to valuation of a reproduction licence, just as it does in determining whether an activity implicates copyright at all.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 McCarthy Tétrault LLP / mccarthy.ca / 15202446 31
  32. 32. Technological Neutrality - Valuation ¬ “ technological neutrality requires that different technologies using reproductions of copyright protected work that produce the same value to the users should be treated the same way.” ¬ “technological neutrality implies that it would be improper to impose higher copyright licensing costs on the user of one technology than would be imposed on the user of a different technology.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 McCarthy Tétrault LLP / mccarthy.ca / 15202446 32
  33. 33. Technological Neutrality - Valuation ¬ “Conversely, different technologies using reproductions that produce different values should not be treated the same way.” ¬ “Where the user of one technology derives greater value from the use of reproductions of copyright protected work than another user using reproductions of the copyright protected work in a different technology, technological neutrality will imply that the copyright holder should be entitled to a larger royalty from the user who obtains such greater value.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 McCarthy Tétrault LLP / mccarthy.ca / 15202446 33
  34. 34. Technological Neutrality - Valuation “When it is tasked with fixing licence fees, the Board must have regard to factors it considers relevant in striking a balance between the rights of users and right-holders. Relevant factors will include, but are not limited to, the risks taken by the user, the extent of the investment the user made in the new technology, and the nature of the copyright protected work’s use in the new technology. The Board must assess the respective contributions of, on the one hand, the risks taken by the user and the investment made by the user, and on the other hand, the reproductions of the copyright protected works, to the value enjoyed by the user.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 McCarthy Tétrault LLP / mccarthy.ca / 15202446 34
  35. 35. Technological Neutrality - Valuation “When it is tasked with determining the value of a right, an important consideration for the Board is the value of that right to the user. The value of the use of reproductions in one technology may stem from functional differences from use in another technology. Value differences may also stem from internal efficiencies between technologies. Ignoring internal efficiencies would result in rights holders being denied additional royalties when the use of their copyrighted work in the more efficient technology confers greater value to the user of that technology.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 McCarthy Tétrault LLP / mccarthy.ca / 15202446 35
  36. 36. Technological Neutrality - Communication ¬ “A communication is not restricted to a purely non- interactive context.” ¬ “Section 3(1)(f) Is Not Limited to Traditional “Push” Technologies; It Is Technology-Neutral” ¬ “Although the words “in any material form whatever” qualify the right to “produce or reproduce the work” in s. 3(1), the same principle should guide the application of the neutral wording of the right to “communicate … to the public by telecommunication”. The broad definition of “telecommunication” was adopted precisely to provide for a communication right “not dependent on the form of technology…” Rogers Communications Inc. v. SOCAN, [2012] 2 S.C.R. 283 McCarthy Tétrault LLP / mccarthy.ca / 15202446 36
  37. 37. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Technological Neutrality - Fair Dealing “Since fair dealing is a “user’s” right, the “amount of the dealing” factor should be assessed based on the individual use, not the amount of the dealing in the aggregate...The “amount of the dealing” factor should therefore be assessed by looking at how each dealing occurs on an individual level, not on the aggregate use.” “Further, given the ease and magnitude with which digital works are disseminated over the Internet, focusing on the “aggregate” amount of the dealing in cases involving digital works could well lead to disproportionate findings of unfairness when compared with non-digital works. If, as SOCAN urges, large-scale organized dealings are inherently unfair, most of what online service providers do with musical works would be treated as copyright infringement. This, it seems to me, potentially undermines the goal of technological neutrality, which seeks to have the Copyright Act applied in a way that operates consistently, regardless of the form of media involved, or its technological sophistication”. SOCAN v. Bell Canada, [2012] 2 SCR 326, 37
  38. 38. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Intermediary liability/responsibility ¬ “In the Board's view, the means “necessary” under s. 2.4(1)(b) were means that were content neutral and were necessary to maximize the economy and cost-effectiveness of the Internet “conduit”. That interpretation, it seems to me, best promotes “the public interest in the encouragement and dissemination of works of the arts and intellect” (Théberge, supra, at para. 30) without depriving copyright owners of their legitimate entitlement. The creation of a “cache” copy, after all, is a serendipitous consequence of improvements in Internet technology, is content neutral, and in light of s. 2.4(1)(b) of the Act ought not to have any legal bearing on the communication between the content provider and the end user…(emphasis added) ¬ “Caching” is dictated by the need to deliver faster and more economic service, and should not, when undertaken only for such technical reasons, attract copyright liability.” SOCAN v CAIP, [2004] 2 S.C.R. 427 38
  39. 39. McCarthy Tétrault LLP / mccarthy.ca / 15202446 Intermediary liability/responsibility ¬ “I conclude that the Copyright Act, as a matter of legislative policy established by Parliament, does not impose liability for infringement on intermediaries who supply software and hardware to facilitate use of the Internet. The attributes of such a “conduit”, as found by the Board, include a lack of actual knowledge of the infringing contents, and the impracticality (both technical and economic) of monitoring the vast amount of material moving through the Internet, which is prodigious…” ¬ “…copyright liability may well attach if the activities of the ISP cease to be content neutral, e.g. if [a hosting provider] has notice that a content provider has posted infringing material on its system and fails to take remedial action.” ¬ “While lack of knowledge of the infringing nature of a work is not a defence to copyright actions generally…nevertheless the presence of such knowledge would be a factor in the evaluation of the “conduit” status of an Internet Service Provider, as discussed below.” SOCAN v CAIP, [2004] 2 S.C.R. 427 39
  40. 40. Intermediary liability/responsibility ¬ “…it appears that Voltage has a strong prima facie case establishing piracy of its copyright product by the fact that TekSavvy’s subscribers are downloading its materials without any possible suggested colour of right. Piracy of copyrighted materials on the Internet is a serious issue in North America. The Court’s general policy therefore, should be to support measures that reasonably deter such illegal conduct, in which category I place Voltage’s litigation, as it appears to be brought on a bona fide basis to deter such activity.” ¬ “the policy in these types of motions should normally be to facilitate the plaintiff’s legitimate efforts to obtain the information from ISPs on the prima facie illegal activities of its subscribers. In my view, courts should be careful not to allow the ISP’s intervention to unduly interfere in the copyright holder’s efforts to pursue the subscribers, except where a good case is made out to do so.” Voltage Pictures LLC v. John Doe, 2015 FC 1364 McCarthy Tétrault LLP / mccarthy.ca / 15202446 40
  41. 41. Intermediary liability/responsibility ¬ “Mr. Justice Arnold found that the English High Court had jurisdiction to require Internet service providers to block availability of the offending websites. ¬ Section 39(1) of the Law and Equity Act, R.S.B.C. 1996, c. 253 is rooted in the same predecessor legislation as s. 37(1) of the English Senior Courts Act 1981, and is in almost identical terms: ¬ 39 (1) An injunction or an order in the nature of mandamus may be granted or a receiver or receiver manager appointed by an interlocutory order of the court in all cases in which it appears to the court to be just or convenient that the order should be made. ¬ Canadian law on the authority to issue injunctions has paralleled that of England. In my view, Arnold J.’s conclusions with respect to the jurisdiction of English courts to grant injunctions are equally applicable to the Supreme Court of British Columbia.” Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265 McCarthy Tétrault LLP / mccarthy.ca / 15202446 41
  42. 42. Intermediary liability/responsibility ¬ “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”: see Construction Denis Desjardins inc. v. Jeanson, 2010 QCCA 1287 (CanLII), at para. 47. 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.” Cinar Corporation v. Robinson, [2013] 3 SCR 1168 McCarthy Tétrault LLP / mccarthy.ca / 15202446 42
  43. 43. How will authors/copyright holders do? ¬ Linking – Svensson, Bestwater, GS Media? ¬ Internet retransmission and network clouds – Aereo and Cablevision? ¬ Digital exhaustion – ReDigi? ¬ Fair dealing – Google Books? ¬ Internet intermediary responsibility – BMG, Cartier? ¬ Culture? McCarthy Tétrault LLP / mccarthy.ca / 15202446 43
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