Copyright - News

  • – 2022-06-06 –

    Voltage Holdings, LLC V Doe#1 et al, 2022 FC 827, saw the first time a plaintiff in a Canadian copyright filesharing action sought a motion for default judgment against dozens of defendants. Voltage is no stranger to copyright litigation. The American film production company has been the plaintiff in numerous copyright infringement lawsuits around the world. These cases concern unauthorized online sharing of Voltage’s films by unidentified defendants. Voltage often opts to sue internet subscribers who were suspected to have unauthorized copies of Voltage’s films shared through their home networks, even if the subscriber and the person who shared the unauthorized copies were not necessarily one and the same.

    In this case as in others, Voltage had taken no steps to identify the alleged direct infringers. Instead, the defendants were internet subscribers that Voltage found using their IP addresses, through information provided to them by ISPs via a Norwich order. These defendants had not responded to Voltage’s previous communications regarding the alleged infringements and had filed no defense. Voltage sought to obtain statutory damages for infringement through a default judgment.

  • – 2022-05-30 –

    As the last few remaining NHL teams battle their way towards the Stanley Cup finals, the Federal Court has ordered Canadian ISPs to begin blocking NHL game streams accused of violating copyright Friday. While Canadian courts have previously recognized the availability of static website blocking (despite CIPPIC's objection), this order is the first of its kind in Canada, as we argued in our intervention. It implements a sophisticated system that relies on a private company to identify allegedly unauthorized streams using automated assessment tools and report these to Canadian ISPs for real-time blocking, and represents the next step and the never-ending expansion of remedies demanded by copyright holders in Canada.

    The order adopts a number of safeguards. It will only operate during the remainder of the playoffs, where there are fewer games to monitor and less opportunities for over-blocking. The Court also ordered an independent expert to audit the website blocking initiative. The independent audit will provide critical evidence that will be critical when courts are later asked to extend this remedy. Specifically, if Rogers, Bell, and the other media companies who applied for this order wish to extend its application beyond the 2022 playoff season, the independent audit will need to establish that collateral blocking of legitimate content was minimal and that the blocking was effective in actually increasing legitimate subscriptions rather than simply driving customers to other forms of infringement or adoption of VPN services.

    Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0

  • – 2021-09-20 –

    Titled Innovation and Balance, CIPPIC's submission to the Government of Canada consultation on Copyright and Artificial Intelligence and IoT offers a set of cautious and balanced recommendations for maintaining Canada's copyright framework in the face of new technologies. CIPPIC's articling students Yuan Stevens and Liwah Keller, supported by a team of CIPPIC interns, took the lead in drafting CIPPIC's submissions.

  • – 2021-07-30 –

    The Supreme Court of Canada today released its decision in York University v. Access Copyright, 2021 SCC 32.  The case addressed two issues: whether Access Copyright’s Copyright Board tariff is mandatory, and whether copying by York pursuant to its Guidelines constitutes fair dealing.  Both courts below had ruled the tariff not mandatory and the Guidelines unfair.

    In a unanimous decision penned by Justice Abella (in her last case on the bench), the Court found that the tariff was not mandatory and so was unenforceable against York, and in light of the absence of any real legal issue between York and Access Copyright, that it would be inappropriate to decide the fair dealing issue. 

    However, the Court cautioned that this result should not “should not be construed as endorsing the reasoning of” the courts below, citing “some significant jurisprudential problems with those aspects of their judgments that warrant comment.”  The Court went on to “correct” those “errors” [para. 87-88]

    Highlights of that analysis include:

  • – 2021-04-26 –

    supreme court of canada
    "supreme court of canada" by jacob earl is licensed under CC BY-NC-ND 2.0

    CIPPIC has filed its intervener factum in the Supreme Court in York University v Access Copyright, SCC No, 39222, an important case addressing the scope of educational fair dealing. CIPPIC argues that a purposive interpretation of fair dealing that embodies Charter values:/p>

    • recognizes that copyright is right to exclude, not simply be paid;
    • identifies the relevant perspective as that of the ultimate user;
    • recognizes universities’ unique role as cradles of authorship and innovation; 
    • appreciates educational institutions' role in society where truth is contested; and
    • appreciates that intermediaries and commercial actors are aspects of marketplaces that facilitate the socially beneficial exercise of both owners’ and users’ rights.

    David Fewer acted for CIPPIC.  CIPPIC was supported by a broad team of students, including articling student Bo Kruk and interns Sarah Crothers, Tina Dekker, Matthew Akl, and research assistant Courtney Wong.

    The hearing of this appeal is currently set for May 21, 2021.

  • – 2021-04-01 –

    CIPPIC’s submission (The Public's Domain) to the government consultation on copyright term extension places the public domain at the heart of Canada’s copyright system.  Given the costs of term extension to Canada’s copyright ecosystem, CIPPIC argues for a form of term extension that offers something back in the form of a registry of works.  Copyright is rare among forms of intellectual property in that protection arises automatically without the need to declare one’s rights.  This means that copyright lacks a functional registry akin to the Patent Registry or the Trademarks Registry.  A Copyright Registry would provide Canadians with greater notice of both protected content and content soon to join the public domain.

    CIPPIC articling student Bo Kruk co-authored the submission with David Fewer and with research assistance from CIPPIC interne Nadine Eltawdy.

  • – 2020-07-02 –

    CIPPIC was granted leave to intervene before the Federal Court of Appeal in Teksavvy Solutions Inc v Bell Media Inc, FCA File No A-440-19, an appeal of an order compelling Canada's ISPs to block access to a website accused of copyright infringement. The order under appeal is novel, and if approved will have far-reaching implications for free expression and balanced copyright, creating an extraordinary new censorship power that the applicants have sought in trade negotiations, at parliament, and at the CRTC, without success.

    The intervention order itself adopts a thoughtful, but decidedly novel approach in its application of the Federal Court of Appeal's uniquely rigorous test for public interest intervention. As set out in CIPPIC's initial motion to intervene, dated February 3, 2020 (paras 5-12) and affirmed by the case management judge in a brief and pointed direction dated April 24, 2020, the test for intervention requires extensive coordination among different public interest interveners to avoid duplication. In light of the interveners' demonstrably successful efforts to coordinate, the Court took the exceptional step of merging many of the parties, allowing CIPPIC to file a joint intervention with our close colleagues at the Canadian Internet Registration Authority (CIRA). The British Columbia Civil Liberties Association (BCCLA) was also granted leave to elaborate on its detailed proposed submissions regarding the need to account for freedom of expression when issuing orders that interfere with access to expressive content. The intervention order is also innovative for its willingness to depart from a categorical approach to classifying proposed interveners, and instead consider the particular characteristics of specific parties and their historical record of intervention. This allows for a more thoughtful and contextual approach to granting intervener status, while interveners will need to be more cautious in implementing the Court's conditions of intervention or risk developing a negative track record and threatening future interventions. Three other parties seeking to intervene on behalf of intellectual property rights holders were also granted leave to intervene, and merged into a single intervention. CIPPIC is represented by Alyssa Tomkins and James Plotkin of Caza Saikaley, SRL/LLP. UPDATE: On August 3, 2020, CIPPIC and CIRA filed their joint Facta. A hearing has not yet been scheduled in this matter.

    Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0

  • – 2019-12-06 –

    The appeal of Cooperstock v United Airlines, Inc., scheduled to be heard Tuesday, December 10, has been discontinued as the parties have reached a settlement.

    While undoubtedly a positive development for the parties - who bear the cost and stress of the litigation - the development leaves intact the troubling lower court decision in United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII).  Mr. Cooperstock operated Untied.com, a consumer criticism site targeting the plaintiff, United Airlines.  United, after years of tolerating Mr. Cooperstock's stings, in 2012 concluded that it could take no more and filed a statement of claim alleging copyright infringement and a number of violations of its rights under the Trademarks Act.  The lower court agreed sided with United in a controversial opinion. Mr. Cooperstock appealed.

  • – 2019-11-13 –

    Justice Boswell of the Federal Court of Canada has denied Voltage’s motion to certify a “reverse” class proceeding for copyright infringement against a class of unidentified internet subscribers and alleged BitTorrent users.

    CIPPIC intervened in the motion, arguing among other things that Voltage’s pleadings did not disclose a reasonable cause of action and that a class proceeding was not preferable given that it would amount to individual factual inquiries specific to each class member.  The Court agreed on both counts.  In rejecting the motion, Justice Boswell concluded:

    [77]  I agree with CIPPIC’s submissions that Voltage’s pleadings do not disclose a reasonable cause of action with respect to primary infringement.  While Voltage alleges that its forensic software identified a direct infringement in [sic] Voltage’s films, Voltage has failed to identify a Direct Infringer in its amended notice of application. ... 

    [...]

    [160]  A class proceeding is not a preferable procedure for the just and efficient resolution of any common issues which may exist.  The proposed proceeding would require multiple individual fact-findings for each class member on almost every issue. ...

  • – 2019-08-06 –

    The Federal Court of Canada has set Rogers' "reasonable costs" of compliance with a Norwich Order in Voltage's reverse class proceeding.  The decision caps a long-running dispute over the proportion of ISP costs copyright claimants must pay ISPs to comply with Norwich orders obliging ISPs to hand over subscriber information to copyright claimants alleging infringement.  Following a 2018 Supreme Court of Canada decision clarifying the range of costs ISPs may ask claimants to pay for subscriber data, Rogers had asked for costs of $100 per subscriber.  Voltage had asked for costs to be set at close to a third of that figure.  The Court split the difference, undertaking a detailed calculation based upon the time and employee costs involved to arrive at the figure of $67.23, plus HST, for the IP address lookup of the single subscriber involved.