Copyright - News

  • – 2018-09-13 –

    The Supreme Court of Canada issued its ruling in Rogers Communications Inc v Voltage Pictures LLC, 2018 SCC 38, today, the latest installment in a long series of ongoing efforts by Voltage to establish a controversial mass copyright litigation model in Canada and the first decision to meaningfully interpret Canada's notice-and-notice regime. As CIPPIC argued in its intervention, which was ably prepared by our external counsel, Jeremy de Beer and Bram Abramson, the decision under appeal discouraged ISPs from conducting rigorous quality assurance checks necessary to reduce mis-identification of customers accused of copyright infringement. It also placed the cost burden of increasingly expansive copyright litigation models on customers of ISPs. All this, in turn, jeopardizes privacy rights of mis-identified customers; exposes innocent individuals to legal threats and costly lawsuits; raises Canada's Internet access fees (already amongst the highest in the world) even higher; and undermines competition by disproportionately impacting smaller ISPs who are less able to diffuse the costs of robust quality assurance.

    The ruling narrowed a prohibition, imposed by the Federal Court of Appeal, on any cost recovery for quality assurance protocols employed by ISPs when compelled to identify customers in the context of a copyright lawsuit. The court held that ISPs will be permitted to recover some (but not all) of these costs, sending the matter back to the Federal Court for determination of what specific quality assurance protocols are reasonable and non-duplicative. This, in turn, removes cost-based disincentives to adopt robust quality assurance protocols by ISPs.

    Image credits (left to bottom right): smileycreek, "Don't Feed The Trolls", October 4, 2014, Flickr, CC-BY-NC-SA 2.0; h0us3s, "Hazard Warning-Electricity", September 11, 2006, OpenClipart, CC-0 1.0; jaschon, "Padlock Icon", July 25, 2010, OpenClipart, CC-0 1.0.

  • – 2018-07-04 –

    We've filed our Memorandum of Fact and Law in our intervention in Cooperstock v. UnitedFCA File No A-262-17, in the Federal Court of Appeal.  Focusing on trade-mark, CIPPIC argue that interpretation of the Trade-marks Act must be grounded in its nexus to trade and its intrinsic balance of competing interests.  These interests include consumer protection, free competition, and freedom of expression.

    Update:  Also filed: the CCLA intervention, focusing on the copyright aspects of the case.

  • – 2018-06-18 –

    CIPPIC has been granted leave to intervene before the Federal Court of Appeal in Cooperstock v United, an important consumer criticism case testing the boundaries of defences to copyright and trade-mark infringement.  CIPPIC's intervention is partner to a parallel intervention by the Canadian Civil Liberties Association.  CIPPIC will focus on the trade-mark issues, while CCLA will address copyright issues.  Both interventions will explore the ways in which freedom of expression limits the reach of intellectual property rights

  • – 2017-11-15 –

    NAFTA MapCIPPIC has joined international copyright law experts calling for NAFTA and other trade negotiators to support a set of balanced copyright principles. In "The Washington Principles on Copyright Balance in Trade Agreements", the experts urge trade negotiators to support policies like fair dealing, safe harbor provisions, and other exceptions and limitations that permit and encourage access to knowledge, flourishing creativity, and innovation.

    Signers lay out the following copyright principles to ensure consumers’ digital rights:

    • Protect and promote copyright balance, including fair dealing
    • Provide technology-enabling exceptions, such as for search engines and text- and data-mining
    • Require safe harbor provisions to protect online platforms from users’ infringement
    • Ensure legitimate exceptions for anti-circumvention, such as documentary filmmaking, cybersecurity research, and allowing assistive reading technologies for the blind
    • Adhere to existing multilateral commitments on copyright term
    • Guarantee proportionality and due process in copyright enforcement

    Read the text:

  • – 2017-10-30 –

    CIPPIC today filed with global Affairs Canada its comments on the resumption of negotiations over the Trans Pacific Partnership. The withdrawal of the United States from the TPP offers an opportunity to improve the agreement and address some of the more problematic provisions of the previously-concluded trade agreement. CIPPIC's Comments focus on:

    • process & transparency;
    • problems with the Investor State Dispute Mechanism (ISDS);
    • digital trade and privacy issues; and
    • balance in the intellectual property provisions.

    11/07/2017 UPDATE: In response to reports that some TPP-11 states were considering freezing several provisions of the TPPA, including problematic provisions on data localization, cross-border privacy and ISDS, CIPPIC submitted a followup letter to the Honorouable François-Philippe Champagne, the Minister of International Trade, calling on Canada to support a freeze of these provisions in APEC meetings taking place this week. As the letter points out, all of these provisions were concessions to the United States and have not been shown to benefit Canada in any way. As the United States is no longer a party to the TPP, the provisions should not be included in any finalized version of that agreement.

    Image Credit: Jason Garber, CC-BY-NC-SA 2.0, May 2, 2006, Flickr

  • – 2017-09-29 –

    CIPPIC's submissions to the Copyright Board's consultations on Options for Reform focuses on five key reforms: 

    • adopt shorter timeframes;
    • implement case management;
    • implement a streamlined evidentiary process;
    • extend tariff length to 5 years and eliminate tariff retroactivity; and
    • allow for interveners in tariff proceedings.

    CIPPIC suggests that, regardless of the specific approach to reform ultimately adopted by the Board, addressing these five issues would create for greater certainty in the marketplace, improve the efficacy of decision-making, and make tariff proceedings quicker, less wasteful, and less costly.

  • – 2017-08-18 –

    CIPPIC has joined with dozens of civil society groups across North America to call on Canada, the United States and Mexico to call upon the United States, Mexico and Canada "to meaningfully reform trade negotiation processes to make them more transparent, inclusive and accountable".  

    NAFTA intellectual property and digital trade negotiations could potentially overhaul the normative approach of all three counties to these important areas of law.  Such discussions should actively seek civil society participation, not curtail it.  The August 18th joint letter, penned by the Electronic Frontier Foundation, specifically calls for:

    • public release of text proposals by governments before negotiations, with clear processes established for members of the public to comment on them;
    • consolidated versions of negotiating texts published between negotiating rounds;
    • locations and times of key meetings announced well ahead of time; and
    • the establishment of consultative trade groups that are broadly representative of both business and public interest stakeholders with a commitment to conducting deliberations openly.
  • – 2017-07-18 –

    CIPPIC's submission to Global Affairs Canada on the re-negotiation of NAFTA calls for transparency and caution.  CIPPIC's letter groups its recommendations under three broad categories:

  • – 2017-03-21 –

    A NAFTA Arbitration Panel has dismissed Eli Lilly's claim for compensation from the Canadian government for the invalidation of two of its patents by the Supreme Court of Canada.  Lilly claimed that Canada's utility standard under patent law failed to meet its NAFTA obligations, and that the invalidation of its patents amounted to an expropriation that entitled it to a remedy under NAFTA's investor protection provisions.

    Lilly's argument sought to leverage international trade investor protection provisions to shape the general contours of substantive intellectual property law.  The Panel rejected that invitation, declining to challenge courts' supervisory role over patentability in the Canadian patent system, stating that "a NAFTA Chapter Eleven tribunal is not an appellate tier" and that it would be inappropriate for a NAFTA tribunal to assess judicial conduct against NAFTA obligations other than in "exceptional circumstances, in which there is clear evidence of egregious and shocking conduct."   

    Decision:

    Previously:

  • – 2016-11-10 –

    The Federal Court of Canada has found that obtaining, reading and distributing paywalled articles for the purposes of assessing and responding to the contents of those articles constituted fair dealing under the Copyright Act.

    In a tightly drafted judgement, Justice Barnes found that the Finance Department employees exercised their fair dealing rights for research purposes in receiving a pair of articles from a Blacklock's subscriber, and reading and sharing those articles internally with other Department employees.  Justice Barnes rejected Blacklock's arguments that its terms of use barred such dealing, noting that it was not Blacklock's practice to explicitly bring such terms to the attention of users, and, in any event, those terms contained an ambiguity permitting reproduction and distribution for non-commercial, personal or educational purposes.

    Given the outcome of its fair dealing analysis, Justice Barnes saw no need to address the Government's claim that Blacklock's practices constituted copyright misuse, although he did note that there are "certainly some troubling aspects to Blacklock's business practices".  The Court awarded costs to the Government.