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  1. 1. Global Information Law and Practice Digital Copyright January 13, 2020 professor michael geist university of ottawa, faculty of law
  2. 2. 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
  3. 3. 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
  4. 4. 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
  5. 5. 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
  6. 6. Digital Copyright
  7. 7. Digital Locks Copyright Innovation Balance Trade
  8. 8. 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.
  9. 9. 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?
  10. 10. Anti-Circumvention Rules (Digital Locks)
  11. 11. Three Layers of Protection 1. Copyright protection 2. Technological protection 3. Legal protection of the technology
  12. 12. Devil in the Details –Copy controls –Access controls –Exceptions –Unintended consequences •Garage door openers •Printer ink cartridges
  13. 13. How to create a global rule?
  14. 14. US Domestic Pressures –Green paper (1994) –White paper (1995) –WIPO (1996) –DMCA (1998) –Bi-lateral Pressures (1998 – present)
  15. 15. WIPO Internet Treaties
  16. 16. 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
  17. 17. 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
  18. 18. 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
  19. 19. 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
  20. 20. 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
  21. 21. 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
  22. 22. 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
  23. 23. So what happens…
  24. 24. “adequate legal protection and effective legal remedies against the circumvention of effective technological measures”
  25. 25. 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)
  26. 26. 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
  27. 27. 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
  28. 28. 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
  29. 29. 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
  30. 30. 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
  31. 31. 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
  32. 32. Digital Copyright Innovations
  33. 33. User Exceptions • Expansion of fair dealing – Prior coverage research, private study, news reporting, criticism, review – Adds education, parody, satire • Format shifting (reproduction for private purposes) – Authorized copy – Don’t give it away – No circumvention – Use for private purposes – Not a copy to CD (private copying levy) • Time shifting – Legally acquire program – No circumvention – One copy – Only keep for “reasonable” period of time – Don’t give it away – Private purposes – Does not apply to on-demand services
  34. 34. User Exceptions • Backup Copies – Solely for backup purposes – Not an infringing copy – No circumvention – Don’t give it away – Must destroy if don’t own or license source copy
  35. 35. User Exceptions • Non-commercial User Generated Content – Use new work to create new work AND authorize intermediary to disseminate if: • Non-commercial purposes • Attribution if possible • Source not infringing copyright • No substantial adverse effect (including financial) on exploitation of existing work
  36. 36. Education Exceptions • Publicly Available Materials on the Internet – Education institution can reproduce, communicate, or perform any work publicly available on the Internet – Conditions • Attribution • No digital lock • No opt-out notice • No knowledge that posted without consent • Distance education – New exception for communication of lessons regardless of location of the student – Conditions • Student must destroy materials 30 days after conclusion of the course • Institution must destroy materials 30 days after conclusion of the course • Limit further communication of the lesson • Cinematographic works – New exception provided not infringing copy • Reproduction in class – Technology neutral - no longer limited to flip charts, overhead projectors, etc.
  37. 37. Library Exceptions • Digital Inter-Library Loans – Libraries can provide digital copies to their patrons or patrons of other libraries – Conditions • Measures to prevent making more than one copy • Measures to prevent communicating to another person • Measures to prevent using for more than five business days
  38. 38. 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
  39. 39. Building a Balance: SCC on Copyright
  40. 40. Theberge - 2002 • Dispute between well-known Quebec artist and gallery • Initial agreement calls for posters of works. Gallery “transfers” images to canvas. Artist sues. • Issue: – Is this a reproduction? • Court sides with gallery – a reproduction requires more than one copy. This a “transfer” since one copy all the time • Note that this a 4-3 decision, suggesting split on the court
  41. 41. “Excessive control by holders of copyrights and other forms of intellectual property may unduly 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.”
  42. 42. CCH - 2004 • Dispute between the Law Society of Upper Canada and legal publishers • Two kinds of copying at issue: – Provision of photocopy machines (authorization) – Copying on demand services • Unanimous court sides with LSUC – Strong endorsement of fair dealing – Introduction of “users’ rights” language – High threshold for authorization
  43. 43. “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.”
  44. 44. ESAC v. SOCAN - 2012 • Is the communication right triggered for the sound recording contained in a downloaded software program? • Same music is licensed for inclusion on the program & no fee payable if purchased in physical format from a store • ESAC characterizes as double dipping • SOCAN argues additional value for the download • Court sides with ESAC – Emphasizes importance of technological neutrality – Describes the Internet as “technological taxi”
  45. 45. “The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method 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.”