Copyright - News

  • – 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.

  • – 2016-09-21 –

    The trial in Blacklock’s Reporter v Attorney-General Canada ended today with the parties’ closing arguments.

    Justice Barnes opened the day inviting the parties to make submissions focusing on the legal implications of what happened between the parties.

    Plaintiff’s counsel opened argument with a brief review of the documentary evidence, and suggested that there were four issues:  (1) infringement, (2) fair dealing, (3) copyright misuse, and (4) damages.

  • – 2016-07-28 –

    Voltage Pictures and its litigation partners - the applicants in a file-sharing "reverse class action" - have been granted a Norwich Order in respect of a single John Doe. The Court limited its Order to the name and address of the Rogers subscriber (the Applicants had sought additional information such as email address) and required payment to Rogers at its hourly fee for providing the subscriber data (the Applicants had argued that the new notice and notice provisions of the Copyright Act meant that Rogers had to provide this information for free). CIPPIC intervened in the motion on the narrow issue of the privacy protections and limits that might be required of any such order. It is possible that Voltage and its partners might appeal the decision on the issue of paying ISP costs. However, with the Order in hand, Voltage and its litigation partners are in place to begin discovery against the Doe with the goal of having the Doe appointed as the representative defedant and moving towards certification of its controversial reverse class proceeding.

    UPDATE: On Friday, August 5, 2016, Voltage filed a Notice of Appeal, FCA File No A-278-16, with the Federal Court of Appeal, challenging the Federal Court's conclusion that it cannot pass the cost of enforcing its rights on to Rogers' customers. Voltage did not seek a stay of the Proposed Class Action Proceeding and, as a result, it appears as though the class proceeding and the appeal will proceed in parallel.

  • – 2016-07-11 –

    CIPPIC and Carleton University’s Geomatics and Cartographic Research Centre have proposed the creation of a Traditional Knowledge open licensing scheme to help overcome some of the challenges associated with granting and obtaining permission for the use and sharing of traditional knowledge.  The scheme envisions a series of open licenses - similar to Creative Commons licenses -  responsive to the needs of granting communities that help overcome some of the obstacles parties routinely encounter in granting and obtaining permission for the use and sharing of traditional knowledge.

  • – 2016-06-03 –

    Canada Post has agreed to discontinue it's copyright infringement lawsuit against Geolytica.  The case involved a claim that Geloytica's use of a crowd-sourced database of postal codes mapped to geographic addresses infringed intellectual property rights Canada Post alleged that it enjoyed in those postal codes.

    While the terms of settlement are confidential, the parties have prepared an agreed statement:

    Canada Post commenced court proceedings in 2012 against Geolytica Inc. for copyright infringement in relation to Geolytica Inc.'s Canadian Postal Code Geocoded Dataset and related services offered on its website at geocoder.ca. The parties have now settled their dispute and Canada Post will discontinue the court proceedings. The postal codes returned by various geocoder interface APIs and downloadable on geocoder.ca, are estimated via a crowdsourcing process. They are not licensed by geocoder.ca from Canada Post, the entity responsible for assigning postal codes to street addresses. Geolytica continues to offer its products and services, using the postal code data it has collected via a crowdsourcing process which it created.

    While undoubtedly a good outcome for Geolytica, the settlement leaves unaddressed the legal claims advanced by Canada Post.

  • – 2016-02-12 –

    CIPPIC and the Centre for Intellectual Property Policy at McGill University have together applied for amicus curae status in Eli Lilly v. Government of Canada UNCT/14/2, a NAFTA trade dispute before an arbitration tribunal.

    At issue is whether Canada's utility standard under patent law meets Canada's obligations under North American Free Trade Agreement.  The Complainant, the pharmaceutical giant Eli Lilly, claims that it does not.  When a Federal Court judge invalidated one of its patent registration for failing Canada's legal test for "utility" - an essential requirement of any valid patent - Eli Lilly claimed that it was entitled to a remedy under NAFTA's investor protection provisions.

    Most trade agreements these days include these investor protection provisions.  This case marks the expansion of the use of these provisions from cases that look more like state expropriation to the general contours of substantive intellectual property law.  The Tribunal is being asked to challenge the court's supervisory role over patentability in the Canadian patent system and to take an expansive view of the content of NAFTA's patent provisions.

  • – 2015-12-10 –

    TekSavvy Solutions Inc., the ISP targeted by Voltage PIctures in its motion for the identities of roughly 2000 subscribers whom Voltage alleges have infringed copyright in Voltage films, has succeeded in its appeal of its cost award in that motion.  In an earlier motion, TekSavvy had been awarded $21,577.50 as its "reasonable legal costs, administrative costs, and disbursements".  On appeal, that figure was raised by an additional $11,822.50. 

    As a result of this decision, and assuming the parties seek no further appeal, after paying these costs to TekSavvy (assuming it chooses to do so), Voltage will be in a position to provide a draft of proposed communications to targeted Subscribers and request the Court to convene a case conference with the Federal Court Case Management Review judge to approve the contents of the letter. 

  • – 2015-11-26 –
    In a 7-2 decision, the Court upheld the Copyright Board's decision to characterize broadcast-incidental copies as "reproductions" for the purposes of the Copyright Act, but overturned the Board's method of calculating fees payable for such activities.  The majority found no reason to depart from long-standing caselaw on the character of ephemeral copies as reproductions for the purposes of the Act, and concluded that the separation of synchronization and broadcast‑incidental licences does not offend technological neutrality or impose new layers of protection or fees based solely on technological change.  However, the majority concluded that the Board failed to consider the principles of technological neutrality and balance in valuing the ephemeral licence.  The Court concluded that balance between user and right‑holder interests requires that the Board assess the respective contributions of the user and the copyright‑protected works to the value enjoyed by the user.