Copyright

Litigation

Law Reform

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.

We've filed our Memorandum of Fact and Law in our intervention in Cooperstock v. United 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.

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

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:

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

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.

FAQ: Copyright Trolls

FAQ on privacy and copyright issues raised by photography-related activities.

CETA


Introduction

In 2002, the European Commission and the Government of Canada agreed to “design a new type of forward-looking, wide-ranging bilateral trade agreement covering…new generation issues and outstanding trade barriers.”

On May 6, 2009, Canada and the European Union (EU) announced the launch of formal negotiations towards the new trade and investment agreement, the Comprehensive Economic and Trade Agreement (CETA).

CETA is intended to build upon previous economic cooperation agreements between Canada and the EU, starting with the 1976 Framework Agreement for Commercial and Economic Co-operation, as well as the 1998 EU-Canada Trade Initiative.

While the scope of CETA is broad, this F.A.Q. will focus on intellectual property issues.

This F.A.Q. was supported by the Social Sciences and Humanities Research Council

The Anti-Counterfeiting Trade Agreement, or "ACTA", is a controversial trade agreement negotiated by a number of nations, including Canada. ACTA addresses standards of enforcement of intellectual property rights. ACTA's content has the potential to impact civil liberties and divert public resources towards the enforcement of private rights.

Bill C-61 was a bill to amend Canada's Copyright Act. The bill died on the order paper with the election of 2008. However, the present government has indicated in its Throne Speech that it intends again to introduce legislation to amend the Copyright Act. Accordingly, we keep this FAQ available to the public.

Over the past few years, file-sharing - i.e., the sharing of files over peer-to-peer (P2P) networks - has become a popular way for music lovers to sample and gather music from a wide range of performers. However, most of the music downloaded and shared by consumers is copyrighted and hence, subject to laws limiting the rights of consumers to reproduce and distribute it.

Digital Rights Management (DRM), also sometimes called ECMS, or electronic copyright management systems, are technologies designed to automatically manage rights in relation to information. This can include preventing copyright works and other information from being accessed or copied without authorization and establishing and enforcing license terms with individuals.

Copyright is a system of laws for promoting both the creation of and access to artistic, literary, musical, dramatic and other creative works. It is usually presented as a balance between promoting the public interest in the encouragement of the creation and dissemination of works of the arts and intellect, and obtaining a just reward for the copyright holder

The broadcast flag is a Digital Rights Management (DRM) system for controlling consumer treatment of high-definition television (HDTV) broadcast content.

Bill C-60 was a proposal to amend Canada's Copyright Act. The Bill died on the order paper with the fall of the Martin government in 2005. However, the issues that motivated the government to table this Bill remain with us.

Blacklock’s Reporter v AG Canada Case opens in Federal Court

On March 4, 2004 the Supreme Court of Canada released its decision in the case of Law Society of Upper Canada v. CCH Limited [2004] S.C.J. No. 12, (2004) 236 D.L.R. (4th) 395 holding (i) that the Copyright Act's fair dealing exception should be liberally interpreted to prevent undue restraint of users' rights and (ii) that the provision of self-service photocopiers does not equal an infringement of copyright.

The Supreme Court of Canada heard arguments on Dec.3, 2003 from Internet Service Providers (ISPs) and music industry representatives in an important case that will decide, among other things, the extent to which Canadian ISPs are liable for content flowing through their networks, and the extent to which foreign actors who target communications to Canadians may be liable under the Canadian Copyright Act.

Edit:   Decision released! (November 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. Factors relevant to this balance include:
  • the risks taken by the user,
  • the extent of the investment made by the user in the new technology, and
  • the nature of the copyright protected work’s use in the new technology.

National Post/Warman v. Fournier, Federal Court of Appeal, File Nos. A-394-12 & A-395-12

Voltage v. Doe, Federal Court, 2013

CIPPIC has filed a Statement of Defense on behalf of its client, Geolytica, in response to a lawsuit filed by the Canada Post Corporation in the Federal Court of Canada (File No. T-519-12) claiming that it owns copyright in its database of postal codes and that Geolytica has infringed that copyright by "crowd-sourcing" data for its own database of postal codes mapped to street addresses.

The case raises fundamental copyright issues, including the scope of protection afforded compilations of data, the subsistence of copyright in factual address identifiers such as postal codes, and the availability of defenses such as fair dealing to developers of research tools such as Geolytica's Canadian Postal Code Geocoded Dataset.  The case will have significant implications for downstream innovators and analysts looking at using datasets for research and to facilitate the research of others.

 

Copyright Pentalogy (SCC, 2012)

Following through on its threat, the Canadian Recording Industry Association (CRIA) launched a lawsuit in the Federal Court (Trial Division), in Toronto Ontario, on February 10, 2004 against 29 unnamed alleged music file-sharers.

Canada's 2010 Digital Economy Consultation

To better understand the basics of copyright law, Prof. Samuel E. Trosow (Western Ontario University)
presents to us his master class: Introduction to Copyright Law and prospects for new legislation.

In 2005, parliament considered revisions to the Copyright Act in order to ensure that Canada's copyright framework remained relevant in the rapidly changing digital environment. The Canadian government introduced a long-awaited bill to amend the Copyright Act on June 20, 2005.
On November 3, 2004, CIPPIC Associate Alex Cameron presented a brief to the Senate Standing Committee on Social Affairs, Science and Technology on Bill S-9, proposed amendments to the Copyright Act that would give photographers first ownership of copyright in the photographs they take.

As Parliament considers legislated protection of Digital Rights Management (DRM) technologies (designed to detect and stop copying of digital works), the Privacy Commissioner of Canada has indicated her intent to "initiate a dialogue" with the departments of Heritage Canada and Industry Canada "to ensure that privacy risks" associated with any copyright legislation "are addressed." Some of the Commissioner's provincial counterparts have signaled their support of her initiative.

On May 12, 2004 the Standing Committee on Canadian Heritage, chaired by Sarmite D. Bulte, M.P. released an interim report listing a number of recommended reforms to Canadian copyright law. The first round of hearings for the report were launched in October 2003 where the Committee heard from a panel of invited witnesses including representatives from Canadian Heritage, Industry Canada, the Canadian Internet Policy and Public Interest Clinic, the Canadian Association of Internet Providers and the Canadian Motion Picture Distributors Association among others. As a result of these consultations, the Committee came up with a number of recommendations.

The Canadian government is considering amending Canada's copyright law. CIPPIC is greatly concerned with the proposals and recommendations contained in the Standing Committee on Canadian Heritage's Report on Copyright Reform.

In September 2003, the House of Commons Standing Committee on Canadian Heritage ("Heritage Committee") began its review of the Section 92 report published by Industry Canadain October 2002.