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January 17 class

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  1. 1. Global Information Law and Practice Digital Copyright January 17, 2018 professor michael geist university of ottawa, faculty of law
  2. 2. Surveillance
  3. 3. “Five Eyes” Global Networks Metadata
  4. 4. Oversight Ministerial Approvals Transparency Reporting
  5. 5. Can a balance be struck? How?
  6. 6. Copyright • Creation of statute • Striking the balance in the public interest: – Incentives to create – Access to knowledge • National vs. Global – Berne, WIPO Internet treaties, TPP – National implementations
  7. 7. Basics of Copyright • Copyright protects expression not ideas • Copyright requires originality and some modicum of effort • Copyright protects for a limited term – life of the author + 50 years/70 years – Sound recordings 50/70 years • Basket of rights • right to reproduce the work • right to perform the work • right to translate the work • Rights of Enforcement – Statutory damages
  8. 8. Exceptions: Fair Dealing/Use • Fair use vs. Fair Dealing • Permits use of a portion of work without permission • Extent of copying depends on use, amount of the work • Essential aspect of the law for many IT/Internet companies
  9. 9. Exceptions: Fair Dealing/Use • Canadian purposes: • research • private study • news reporting • criticism • Review • Education • Parody • Satire • Subject to six factor fairness analysis • In addition, many other subject-specific exceptions + de minimis analysis
  10. 10. Digital Copyright
  11. 11. Digital Locks Safe Harbours Copyright Innovation
  12. 12. Copyright Case Study Steph Lanz is a mother of two young children who love nothing more than to sing and dance. One day, as the kids were dancing in the living room to Let It Go (from the popular movie Frozen), she opened her phone and began recording. The dancing and music was so great that she decided to post the three minute video on YouTube. A friend saw the video and remarked that the dancing brought back great memories from the movie. Lanz decided to make a second version of the video. This version mixed video of the kids dancing with clips from the Frozen movie DVD (she used a software program to disable the copy- protections). She uploaded the second movie to YouTube and made both available for download in her Dropbox account. Lanz’s videos were purely non-commercial. She did not sell them nor allow advertising to appear alongside them. Both videos became viral hits and soon came to the attention of lawyers from Disney. They were unwilling to “let it go.” The lawyers sent takedown notifications to YouTube and Dropbox and sent a demand letter to Lanz, accusing her of copyright infringement and seeking $50,000 in damages.
  13. 13. Copyright Case Study Lanz seeks your help: 1. Does the first Lanz video infringe copyright? 2. Does the second Lanz video infringe copyright? 3. What defences or arguments might Lanz raise? 4. Should YouTube and Dropbox be required to take down the videos? 5. If there is infringement, should Lanz be subject to damages?
  14. 14. Anti-Circumvention Rules (Digital Locks)
  15. 15. Three Layers of Protection 1. Copyright protection 2. Technological protection 3. Legal protection of the technology
  16. 16. Devil in the Details –Copy controls –Access controls –Exceptions –Unintended consequences •Garage door openers •Printer ink cartridges
  17. 17. How to create a global rule?
  18. 18. US Domestic Pressures –Green paper (1994) –White paper (1995) –WIPO (1996) –DMCA (1998) –Bi-lateral Pressures (1998 – present)
  19. 19. WIPO Internet Treaties
  20. 20. Legislative History – Anti-circumvention rules developed over two year period from 1994 - 96 – No reference in early preparatory meetings which started in 1989 – Four preparatory meetings + Diplomatic conference – Extensive records and minutes on all of these meetings
  21. 21. Legislative History - 4th prep meeting (Dec 1994) – U.S. raises protection for copy protection systems – No specific language proposed – Emphasis on trafficking in circumvention devices – Need to protect lawful uses discussed – Chair notes no agreement - floats prospect of general provision on circumvention and leave to countries to implement
  22. 22. Legislative History - 5th prep meeting (Sept 1995) – Still no specific language – U.S. stresses urgency of addressing the issue – Other countries express concern: • South Korea fears interference with normal exploitation of a work – Business raises concern as well - electronics industry on implications for fair use and innovation
  23. 23. Legislative History - 6th prep meeting (Feb 1996) – Specific language proposed: • U.S. proposes provision on trafficking in devices • Brazil & Argentina propose provisions on trafficking and circumvention of copy controls (no access controls) – Delegation responses: • South Korea seeks mandatory exceptions • Denmark favours general principle with flexible implementation • Thailand opposes any TPM protection • China seeks further study – Chair’s summary notes lack of consensus
  24. 24. Legislative History - 7th prep meeting (May 1996) – Specific language proposed: • EU adds proposal on trafficking in devices (but adds a knowledge requirement) – Delegation responses: • Canada says it cannot support any proposal • Singapore says it goes too far and interferes with legit uses • Thailand says it goes too far and would create confusion • South Korea concerned about harm to public interest • China expresses doubt that it fits within copyright • Ghana fears impact on developing world and should be reconsidered • Nigeria concerned about vagueness of language • Brazil, Egypt says need further clarification – No recommendations or conclusions
  25. 25. Legislative History - Diplomatic Conference (Dec 1996) – “Basic proposal”: • Targets trafficking + effective remedies – Delegation response: • Ghana demands provision be dropped • Canada not acceptable • Korea concerned about lawful uses • Singapore concerned about high standard of liability • Australia, Norway, Germany, Jamaica all call for narrowing the provision • South Africa proposes general language on acts of circumvention (no trafficking) • Only three delegations support - U.S., Hungary, Colombia
  26. 26. Legislative History - Plenary Conference (Dec 1996) – Delegation response: • Israel says Basic Proposal is “over broad” • Singapore says it interferes with bona fide uses of technology • Indonesia calls for more study • India warns on impact on fair use • South Korea warns on overbroad impact – No unqualified endorsements of Basic Proposal
  27. 27. So what happens…
  28. 28. “adequate legal protection and effective legal remedies against the circumvention of effective technological measures”
  29. 29. Country Implementations - U.S. – Several bills tried to implement • Digital Copyright Clarification and Technology Education Act (1997) – No ban on devices, accounted for fair use • Digital Millennium Copyright Act (1998) – Acknowledge that it goes beyond WIPO requirements – Triennial review of new exceptions • Unlocking Technology Act (2013)
  30. 30. Country Implementations - European Union – EU Copyright Directive (EUCD) • Similar to US DMCA but.. • Mandatory exceptions including teaching, research • Open to private copying exception • Requirement to ensure appropriate access – Different countries, different implementations • Denmark - only applies to copy controls • Germany - excludes public domain • Italy - includes private copying • Greece - legal right to pursue access following mediation • Netherlands - Justice Department power to decree access
  31. 31. Country Implementations - Canada – Four bills tried to implement • Bill C-60 (2005) –Linked circumvention to infringement –No ban on devices • Bill C-61 (2008) & Bill C-32 (2010) • Bill C-11 (2011) enacted in 2012 –US Style approach – access and copy controls
  32. 32. Country Implementations - Australia – Two stage process: • Digital Agenda Act (2000) – Targeted distribution of circumvention devices – Established exceptions to distribution provision • Australia - U.S. FTA (2004) – Ban on distribution – New provision on circumvention – Extends to access and copy controls
  33. 33. Country Implementations Hong Kong – Circumvention of Technological Protection Measures (2008) – Covers: • Making circumvention devices for sale or hire • Importing or exporting circumvention devices for sale or hire • Dealing in circumvention devices (including selling, letting, exhibiting in public or distributing in the course of trade or business) • Providing a commercial circumvention service which enables customers to circumvent technological measures used to protect copyright works
  34. 34. Country Implementations - Switzerland – Article 39(a)(4) (2008) • Full exception to circumvent for legal purposes – Establish monitoring agency on use of TPMs and potential instances of misuse
  35. 35. Country Implementations - Non-Parties – New Zealand (2008) • Right to circumvent for legal purposes • Qualified circumventers who can act on behalf of a user – India (2010) • Circumvention permitted for any legal purpose – Brazil (2010 bill) • Circumvention permitted for fair dealing, public domain • Equivalent penalties established for hindering fair dealing rights
  36. 36. Safe Harbours
  37. 37. Intermediary - Copyright • SOCAN v. CAIP – Tariff 22 - starts in 1996 as music download tariff – Targets ISPs for activity on their networks – Caching Section 2.4 (1) For the purposes of communication to the public by telecommunication, (b) a person whose only act in respect of the communication of a work or other subject-matter to the public consists of providing the means of telecommunication necessary for another person to so communicate the work or other subject-matter does not communicate that work or other subject- matter to the public;
  38. 38. Intermediary - Copyright “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.”
  39. 39. 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.
  40. 40. 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 • Fee for service can be set by government (if no fee set, no fee) • Damages for ISP - $5,000 to $10,000
  41. 41. U.S. Intermediaries • CDA Section 230 “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”
  42. 42. U.S. Intermediaries • DMCA A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider— (A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
  43. 43. U.S. Intermediaries • DMCA To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.