alai canada: colloque annual

McCarthy Tétrault Advance™

Building Capabilities for Growth

ALAI CANADA: COLLOQUE ANNUEL

Copyright and Technology: Challenges to Authors

and Copyright Holders

Barry B. Sookman

Direct Line: (416) 601-7949

E-Mail: [email protected] January 26, 2016

McCarthy Tétrault LLP / mccarthy.ca / 15202446

Introduction

¬ Technology brings new challenges to every facet of

copyright

¬ Changing public and judicial attitudes

¬ Copyright reform, ACTA, TPP

¬ Polarization, activism, risk taking

¬ How will our copyright regime adapt to changing

technologies?

¬ Who will benefit?

McCarthy Tétrault LLP / mccarthy.ca / 15202446 2

Challenges - exclusive rights


Do you need permission to link? Here's my table attempting a summary of recent CJEU case law, IPKat,

October 11, 2015 @ http://ipkitten.blogspot.ca/2015/10/do-you-need-permission-to-link-heres-my.html

• Does the MAR extend to all means of making content

available?

• What copying will be regarded as reproductions?

• Scope of secondary liability.

Challenges – exclusive rights

¬ What is a communication, who communicates to the public,

and makes copies?

¬ Network clouds? Cartoon Network LP v CSC Holdings

Inc 536 F 3d 121 (Cablevision) (2nd Cir 2008), RecordTV

Pte Ltd v MediaCorp TV Singapore Pte Ltd [2010] SGCA

43, National Rugby League Investments Pty Limited v

Singtel Optus Pty Ltd, [2012] FCAFC 59 (April 2012)

¬ Internet retransmission? American Broadcasting v. Aereo,

Inc., 134 S. Ct. 2498 (2014)

¬ Digital exhaustion/resale right? Capitol Records, LLC v.

ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013)


Challenges – intermediaries

¬ Responsibility for reducing infringements carried out using

intermediary networks:

¬ Notice and notice: Sony Music Entertainment (Ireland)

Limited v UPC Communications Ireland Limited (No.1)

[2015] IEHC 317

¬ Have and implement a repeat infringer policy: BMG Rights

Management (US) LLC v Cox Communications, Inc. No.

1:2014cv01611, (E.D. Va. Dec 1, 2015)

¬ Blocking and de-indexing orders: Cartier International AG & Ors

v British Sky Broadcasting Ltd & Ors [2014] EWHC 3354 (Ch)

(17 October 2014)


Challenges - exceptions and limitations

¬ “…issues of ownership and fair play are at the heart of The Authors

Guild’s lawsuit against internet giant Google, which has, without

permission from authors and without paying for their copyrighted

material, digitized millions of their books while ignoring, as if these

were irrelevant, their creators’ claims to ownership. Google has

justified this theft by arguing that the use they were making of our

property was “transformative,” a public service. They wouldn’t be

selling our books for profit, just providing a research tool that displays

only snippets, which would fall under the doctrine of “fair use.”

¬ “Nor should Google’s avowed altruism go unchallenged. Their use of

our intellectual property enhances both the quality and value of their

search engine, which in turn gives them an advantage over

competitors. It’s completely disingenuous for them to argue that their

behavior is selfless when it leads directly to an improved bottom line

and increases their value as a corporation.” Richard Russo [Authors

Guild Council member] on Authors Guild v. Google, Jan 6, 2016


https://www.authorsguild.org/industry-advocacy/richard-russo-on-authors-guild-v-google/

https://www.authorsguild.org/industry-advocacy/richard-russo-on-authors-guild-v-google/

Challenges – fair remuneration

¬ “the low payment of creators, composers, songwriters and performers is

today the most visible part of the impact caused by technological

advances in the use of protected works in the digital

environment…despite the fact that digital technology has allowed a

wider access to music by society as never before, there are questions

about the importance that has been attributed to these creators and

performers and if it is enough.” WIPO, Proposal for Analysis of

Copyright related to the Digital Environment, Group of Latin American

and Caribbean Countries (GRULAC) , SCCR/31/4, Dec. 1, 2015.

¬ Commercial webcasters pay “Webcast 10.2¢ per thousand plays”. “In

the United States, for 2012, the rate that webcasters must pay for the

same rights when their sole business is webcasting is $1.10 per

thousand plays (the “Pureplay rate”).” Copyright Board, Fact Sheet, May

16, 2014.

¬ Does private copying cause de minimis harm? British Academy of

Songwriters, Composers And Authors v Secretary of State for Business,

Innovation And Skills [2015] EWHC 1723 (Admin) (19 June 2015)


http://www.wipo.int/edocs/mdocs/copyright/en/sccr_31/sccr_31_4.pdf


http://www.cb-cda.gc.ca/decisions/2014/ReSound8-60-fact-sheet-en.pdf

Challenges – Culture

¬ “Authors’ incomes are dropping… And a [PWC] study on the

longer-term implications shows a decline in writing and

publishing for the learning population; investment to create

Canadian educational materials drying up; writers

abandoning projects that could be of use to students; and

the choice and quality of educational materials available to

students steadily dropping.”

¬ “The danger is that students at Canadian schools, colleges

and universities will graduate without having read enough of

the Canadian stories, the Canadian research, the Canadian

approach to policy to feel that they are part of the larger

space-time continuum…” Heather Menzies (Chair Writers

Union) The copyright act needs to be edited – for writers’

survival, Globe & Mail Jan. 14, 2016

ault LLP / mccarthy.ca / 15202446 8

http://www.theglobeandmail.com/opinion/f/article28197828/





Challenges – technological neutrality

“In the absence of law or specific legal provisions on

the use of protected intellectual goods in the digital

environment traditional rights are often interpreted

by analogy or conceptual proximity of legal theories

originally envisaged for the physical environment.

This exercise usually ignores the fact that many

aspects of the physical environment are difficult to

apply in the digital environment.” WIPO, Proposal for

Analysis of Copyright related to the Digital

Environment, presented by the Group of Latin

American and Caribbean Countries (GRULAC) ,

SCCR/31/4, Dec. 1, 2015





Goals of Copyright – why it matters



Copyright creates incentives to create and distribute Works

“Intellectual property laws originated in order to

protect the promulgation of ideas. Copyright law

provides incentives for innovators -artists, musicians,

inventors, writers, performers and marketers - to

create. It is designed to ensure that ideas are

expressed and developed instead of remaining

dormant. Individuals need to be encouraged to

develop their own talents and personal expression of

artistic ideas, including music. If they are robbed of

the fruits of their efforts, their incentive to express

their ideas in tangible form is diminished.” BMG

Canada Inc.v John Doe 2005 FCA 193


Copyright prevent “unfair” appropriation of efforts (historical view)

¬ The moral basis of copyright rests on the 8th commandment

‘Thou shalt not steal’”. MacMillan & Co. Ltd. v. Cooper (1923),

40 T.L.R. 186 (P.C.) per Lord Atkinson

¬ Bishop v. Stevens [1990] 2 S.C.R. 467 Justice McLachlin of

the Supreme Court of Canada stated that the Copyright Act

“was passed with a single object, namely, the benefit of

authors of all kinds”.

¬ Vigneux v. Canadian Performing Rights Society, [1943] S.C.R.

348, reversed [1945] A.C. 108 (Canada P.C.). Justice Duff

stated that the purpose of copyright is to prevent persons from

“unfairly availing themselves of the work of others” and that the

“protection of authors … is the object to be attained by all

patent and copyright laws.”


Rational for Copyright (modern view)

“The Copyright Act is usually presented as a

balance between promoting the public

interest in the encouragement and

dissemination of works of the arts and

intellect and obtaining a just reward for the

creator (or, more accurately, to prevent

someone other than the creator from

appropriating whatever benefits may be

generated).” Théberge v. Galerie d'Art du

Petit Champlain inc. (2002), 17 C.P.R. (4th)

161 (S.C.C.)


¬ “Théberge reflected a move away from an earlier, author-

centric view which focused on the exclusive right of authors

and copyright owners to control how their works were used in

the marketplace: see e.g. Bishop v. Stevens, [1990] 2 S.C.R.

467, at pp. 478-79. Under this former framework, any benefit

the public might derive from the copyright system was only “a

fortunate by-product of private entitlement”…

¬ “Théberge focused attention instead on the importance

copyright plays in promoting the public interest, and

emphasized that the dissemination of artistic works is central

to developing a robustly cultured and intellectual public

domain.” SOCAN v. Bell Canada, [2012] 2 SCR 326

14 McCarthy Tétrault LLP / mccarthy.ca / 15202446 14


”To be sure, Théberge demonstrates how this Court’s

understanding of the purpose of the Copyright Act has

evolved since the pronouncement in Bishop that the

“single object” of the Act was to benefit authors: Bishop,

at pp. 478-79, quoting Performing Rights Society v.

Hammond’s Bradford Brewery Co., [1934] 1 Ch. 121, at

p. 127. Théberge observed that, when weighing

competing policy interests under copyright, “[t]he proper

balance . . . lies not only in recognizing the creator’s

rights but in giving due weight to their limited nature”:

para. 31.” Canadian Broadcasting Corp. v. SODRAC

2003 Inc., 2015 SCC 57

15 McCarthy Tétrault LLP / mccarthy.ca / 15202446 15

http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.html

Canada’s Framework for Addressing Technology Challenges



Originality

“As mentioned, in Théberge, supra, this Court stated that the purpose

of copyright law was to balance the public interest in promoting the

encouragement and dissemination of works of the arts and intellect

and obtaining a just reward for the creator. When courts adopt a

standard of originality requiring only that something be more than a

mere copy or that someone simply show industriousness to ground

copyright in a work, they tip the scale in favour of the author’s or

creator’s rights, at the loss of society’s interest in maintaining a robust

public domain that could help foster future creative innovation… By

way of contrast, when an author must exercise skill and judgment to

ground originality in a work, there is a safeguard against the author

being overcompensated for his or her work. This helps ensure that

there is room for the public domain to flourish as others are able to

produce new works by building on the ideas and information contained

in the works of others…” CCH Canadian Ltd. v. Law Society of Upper

Canada, [2004] 1 S.C.R. 339

17


Originality

“Requiring that an original work be the product of an exercise of

skill and judgment is a workable yet fair standard. The “sweat of

the brow” approach to originality is too low a standard. It shifts the

balance of copyright protection too far in favour of the owner’s

rights, and fails to allow copyright to protect the public’s interest in

maximizing the production and dissemination of intellectual works.

On the other hand, the creativity standard of originality is too high.

A creativity standard implies that something must be novel or non-

obvious — concepts more properly associated with patent law

than copyright law. By way of contrast, a standard requiring the

exercise of skill and judgment in the production of a work avoids

these difficulties and provides a workable and appropriate

standard for copyright protection that is consistent with the policy

objectives of the Copyright Act.” CCH Canadian Ltd. v. Law

Society of Upper Canada, [2004] 1 S.C.R. 339

18


Authorization

“Authorize” means to “sanction, approve and countenance” …

Countenance in the context of authorizing copyright infringement

must be understood in its strongest dictionary meaning, namely,

“give approval to, sanction, permit, favour,

encourage…Authorization is a question of fact that depends on the

circumstances of each particular case and can be inferred from

acts that are less than direct and positive, including a sufficient

degree of indifference… However, a person does not authorize

infringement by authorizing the mere use of equipment that could

be used to infringe copyright. Courts should presume that a person

who authorizes an activity does so only so far as it is in

accordance with the law…This presumption may be rebutted if it is

shown that a certain relationship or degree of control existed

between the alleged authorizer and the persons who committed

the copyright infringement.” CCH Canadian Ltd. v. Law Society of

Upper Canada, [2004] 1 S.C.R. 339

19


¬ Court rejected Moorhouse decision which held that there can

be infringement if a person:

(1) has under his control the means by which an infringement

of copyright may be committed “such as a photocopying

machine;”

(2) makes it available to other persons, knowing, or having

reason to suspect, that it is likely to be used for the

purpose of committing an infringement, and

(3) omits to take reasonable steps to limit its use to legitimate

purposes.

¬ Moorhouse was rejected because it “shifts the balance in

copyright too far in favour of the owner's rights and

unnecessarily interferes with the proper use of copyrighted

works for the good of society as a whole”. CCH Canadian Ltd.

v. Law Society of Upper Canada, [2004] 1 S.C.R. 339

Authorization

20

Communication to the public

“Ultimately, in determining the extent of copyright, regard must be

had for the fact that “[t]he Copyright Act is usually presented as a

balance between promoting the public interest in the

encouragement and dissemination of works of the arts and intellect

and obtaining a just reward for the creator” (Théberge v. Galerie

d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336,

at para. 30). This balance is not appropriately struck where the

existence of copyright protection depends merely on the business

model that the alleged infringer chooses to adopt rather than the

underlying communication activity. Whether a business chooses to

convey copyright protected content in a traditional, “broadcasting”

type fashion, or opts for newer approaches based on consumer

choice and convenience, the end result is the same. The

copyrighted work has been made available to an aggregation of

individuals of the general public.” Rogers Communications Inc v

SOCAN, 2012 SCC 35


Communication and MAR

¬ “…the right to “communicate” is historically connected to the

right to perform a work and not the right to reproduce

permanent copies of the work…

¬ The right to perform historically presupposed a live audience

that would be present at the site where the performance took

place…

¬ we agree with Rothstein J. (at para. 98) that there is a “historic

relationship” between the performance right and the

communication right in the Copyright Act, but we disagree with

his conclusion that Parliament intended to sever this

relationship based on the 1988 amendments. In our view, this

historical connection between communication and performance

still exists today.” ESA v SOCAN [2012] 2 SCR 231

¬ Did the 2012 CMA amendments change the law?


Reproduction

¬ “The ordinary meaning of the text of the Copyright Act indicates

that broadcast-incidental copying activities do engage the

reproduction right…

¬ There is nothing in the text, context or legislative history of these

provisions (or s. 3(1)) that supports the view that the broadcasting

process obviates the fact that broadcast-incidental copies are

reproductions under the Copyright Act. Arguments based on

purpose in the form of technological neutrality and balance are

advanced to come to the opposite conclusion, but purposive

construction is a tool of statutory interpretation to assist in

understanding the meaning of the text. It is not a stand-alone basis

for the Court to develop its own theory of what it considers

appropriate policy. Accordingly, the Board was correct in

proceeding on the basis that broadcast incidental copies engage

the reproduction right under s. 3(1)(d) of the Copyright Act.”

Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57



Fair Dealing

“…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. As

Professor Vaver, supra, has explained, at p. 171: ‘User

rights are not just loopholes. Both owner rights and user

rights should therefore be given the fair and balanced

reading that befits remedial legislation.’” CCH Canadian

Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339

(emphasis added)

24


Fair Dealing

“…in considering whether previews are for the purpose of

“research” under the first step of CCH, the Board properly

considered them from the perspective of the user or consumer’s

purpose. And from that perspective, consumers used the previews

for the purpose of conducting research to identify which music to

purchase, purchases which trigger dissemination of musical works

and compensation for their creators, both of which are outcomes

the Act seeks to encourage.” SOCAN v. Bell Canada, [2012] 2

SCR 326,

“As noted in the companion appeal SOCAN v. Bell, fair dealing is a

“user’s right”, and the relevant perspective when considering

whether the dealing is for an allowable purpose under the first

stage of CCH is that of the user”. Alberta (Education) v. Access

Copyright, [2012] 2 SCR 345

25


Fair Dealing

¬ “When the Great Library staff make copies… they do so for the

purpose of research. Although the retrieval and photocopying of legal

works are not research in and of themselves, they are necessary

conditions of research and thus part of the research process. The

reproduction of legal works is for the purpose of research in that it is

an essential element of the legal research process. There is no other

purpose for the copying; the Law Society does not profit from this

service.”

¬ "Dealing" connotes not individual acts, but a practice or system...

Persons or institutions relying on the s. 29 fair dealing exception need

only prove that their own dealings with copyrighted works were for the

purpose of research or private study and were fair. They may do this

either by showing that their own practices and policies were research-

based and fair, or by showing that all individual dealings with the

materials were in fact research-based and fair.” CCH Canadian Ltd. v.

Law Society of Upper Canada, [2004] 1 S.C.R. 339

26


Fair Dealing

“In CCH, the Court concluded that since no

evidence had been tendered by the publishers of

legal works to show that the market for the works

had decreased as a result of the copies made by

the Great Library, the detrimental impact had not

been demonstrated. Similarly, other than the

bald fact of a decline in sales over 20 years,

there is no evidence from Access Copyright

demonstrating any link between photocopying

short excerpts and the decline in textbook sales.”

Alberta (Education) v. Access Copyright, [2012]

2 SCR 345

27

Technological Neutrality - Principle

¬ “The principle of technological neutrality is recognition that,

absent parliamentary intent to the contrary, the Copyright Act

should not be interpreted or applied to favour or discriminate

against any particular form of technology.”

¬ “The Federal Court of Appeal set out a fair reading of ESA when

it described it as establishing that “[t]echnological neutrality is

determined by functional equivalence: para. 39.”

¬ “technological neutrality required the consideration of the

difference between the old and new forms of delivery of works.

In the absence of any difference between them, no separate

right was engaged.”

¬ ““an additional layer of protections and fees” [should] not be

imposed based solely on technological change: ESA, at para.

9.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015

SCC 57


Technological Neutrality - Source

“It is derived from the balancing of user and right-

holder interests discussed by this Court in Théberge

— a “balance between promoting the public interest in

the encouragement and dissemination of works of the

arts and intellect and obtaining a just reward for the

creator”: para. 30. Because this long-standing

principle informs the Copyright Act as a whole, it must

be maintained across all technological contexts: “The

traditional balance between authors and users should

be preserved in the digital environment”: ESA, at

para. 8.” Canadian Broadcasting Corp. v. SODRAC

2003 Inc., 2015 SCC 57


Technological Neutrality - Role

¬ “The Copyright Act as a whole is to be read having regard to

the principles of technological neutrality and balance, unless

its text indicates otherwise.”

¬ “the principles of balancing user and right-holder interests and

of technological neutrality are central to Canadian copyright

law, they cannot change the express terms of the Copyright

Act.”

¬ “Arguments based on purpose in the form of technological

neutrality and balance are advanced to come to the opposite

conclusion, but purposive construction is a tool of statutory

interpretation to assist in understanding the meaning of the

text. It is not a stand-alone basis for the Court to develop its

own theory of what it considers appropriate policy.” Canadian

Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57


Technological Neutrality - Valuation

¬ “Overall, the Board’s valuation analysis must comport with

the Copyright Act’s fundamental requirement to recognize

technological neutrality and balance between user and right-

holder interests.”

¬ “…where the right is engaged, the issue becomes one of

valuation of that right, and the principles of technological

neutrality and balance must be adapted to the valuation

context.”

¬ “In the regulatory context, the principle of technological

neutrality applies to valuation of a reproduction licence, just

as it does in determining whether an activity implicates

copyright at all.” Canadian Broadcasting Corp. v. SODRAC

2003 Inc., 2015 SCC 57



¬ “ technological neutrality requires that different

technologies using reproductions of copyright

protected work that produce the same value to

the users should be treated the same way.”

¬ “technological neutrality implies that it would be

improper to impose higher copyright licensing

costs on the user of one technology than would

be imposed on the user of a different

technology.” Canadian Broadcasting Corp. v.

SODRAC 2003 Inc., 2015 SCC 57



¬ “Conversely, different technologies using

reproductions that produce different values should

not be treated the same way.”

¬ “Where the user of one technology derives greater

value from the use of reproductions of copyright

protected work than another user using

reproductions of the copyright protected work in a

different technology, technological neutrality will

imply that the copyright holder should be entitled to a

larger royalty from the user who obtains such greater

value.” Canadian Broadcasting Corp. v. SODRAC

2003 Inc., 2015 SCC 57



“When it is tasked with fixing licence fees, the Board must

have regard to factors it considers relevant in striking a

balance between the rights of users and right-holders.

Relevant factors will include, but are not limited to, the

risks taken by the user, the extent of the investment the

user made in the new technology, and the nature of the

copyright protected work’s use in the new technology.

The Board must assess the respective contributions of,

on the one hand, the risks taken by the user and the

investment made by the user, and on the other hand, the

reproductions of the copyright protected works, to the

value enjoyed by the user.” Canadian Broadcasting Corp.

v. SODRAC 2003 Inc., 2015 SCC 57



“When it is tasked with determining the value of a

right, an important consideration for the Board is the

value of that right to the user. The value of the use

of reproductions in one technology may stem from

functional differences from use in another

technology. Value differences may also stem from

internal efficiencies between technologies. Ignoring

internal efficiencies would result in rights holders

being denied additional royalties when the use of

their copyrighted work in the more efficient

technology confers greater value to the user of that

technology.” Canadian Broadcasting Corp. v.

SODRAC 2003 Inc., 2015 SCC 57


Technological Neutrality - Communication

¬ “A communication is not restricted to a purely non-

interactive context.”

¬ “Section 3(1)(f) Is Not Limited to Traditional “Push”

Technologies; It Is Technology-Neutral”

¬ “Although the words “in any material form whatever” qualify

the right to “produce or reproduce the work” in s. 3(1), the

same principle should guide the application of the neutral

wording of the right to “communicate … to the public by

telecommunication”. The broad definition of

“telecommunication” was adopted precisely to provide for a

communication right “not dependent on the form of

technology…” Rogers Communications Inc. v. SOCAN,

[2012] 2 S.C.R. 283



Technological Neutrality - Fair Dealing

“Since fair dealing is a “user’s” right, the “amount of the dealing” factor

should be assessed based on the individual use, not the amount of the

dealing in the aggregate...The “amount of the dealing” factor should

therefore be assessed by looking at how each dealing occurs on an

individual level, not on the aggregate use.”

“Further, given the ease and magnitude with which digital works are

disseminated over the Internet, focusing on the “aggregate” amount of the

dealing in cases involving digital works could well lead to disproportionate

findings of unfairness when compared with non-digital works. If, as

SOCAN urges, large-scale organized dealings are inherently unfair, most

of what online service providers do with musical works would be treated

as copyright infringement. This, it seems to me, potentially undermines

the goal of technological neutrality, which seeks to have the Copyright Act

applied in a way that operates consistently, regardless of the form of

media involved, or its technological sophistication”. SOCAN v. Bell

Canada, [2012] 2 SCR 326,

37


Intermediary liability/responsibility

¬ “In the Board's view, the means “necessary” under s. 2.4(1)(b) were

means that were content neutral and were necessary to maximize

the economy and cost-effectiveness of the Internet “conduit”. That

interpretation, it seems to me, best promotes “the public interest in

the encouragement and dissemination of works of the arts and

intellect” (Théberge, supra, at para. 30) without depriving copyright

owners of their legitimate entitlement. The creation of a “cache” copy,

after all, is a serendipitous consequence of improvements in Internet

technology, is content neutral, and in light of s. 2.4(1)(b) of the Act

ought not to have any legal bearing on the communication between

the content provider and the end user…(emphasis added)

¬ “Caching” is dictated by the need to deliver faster and more

economic service, and should not, when undertaken only for such

technical reasons, attract copyright liability.” SOCAN v CAIP, [2004]

2 S.C.R. 427

38



¬ “I conclude that the Copyright Act, as a matter of legislative policy

established by Parliament, does not impose liability for infringement

on intermediaries who supply software and hardware to facilitate use

of the Internet. The attributes of such a “conduit”, as found by the

Board, include a lack of actual knowledge of the infringing contents,

and the impracticality (both technical and economic) of monitoring the

vast amount of material moving through the Internet, which is

prodigious…”

¬ “…copyright liability may well attach if the activities of the ISP cease to

be content neutral, e.g. if [a hosting provider] has notice that a content

provider has posted infringing material on its system and fails to take

remedial action.”

¬ “While lack of knowledge of the infringing nature of a work is not a

defence to copyright actions generally…nevertheless the presence of

such knowledge would be a factor in the evaluation of the “conduit”

status of an Internet Service Provider, as discussed below.” SOCAN v

CAIP, [2004] 2 S.C.R. 427

39


¬ “…it appears that Voltage has a strong prima facie case

establishing piracy of its copyright product by the fact that

TekSavvy’s subscribers are downloading its materials without any

possible suggested colour of right. Piracy of copyrighted materials

on the Internet is a serious issue in North America. The Court’s

general policy therefore, should be to support measures that

reasonably deter such illegal conduct, in which category I place

Voltage’s litigation, as it appears to be brought on a bona fide basis

to deter such activity.”

¬ “the policy in these types of motions should normally be to facilitate

the plaintiff’s legitimate efforts to obtain the information from ISPs

on the prima facie illegal activities of its subscribers. In my view,

courts should be careful not to allow the ISP’s intervention to unduly

interfere in the copyright holder’s efforts to pursue the subscribers,

except where a good case is made out to do so.” Voltage Pictures

LLC v. John Doe, 2015 FC 1364



¬ “Mr. Justice Arnold found that the English High Court had

jurisdiction to require Internet service providers to block availability

of the offending websites.

¬ Section 39(1) of the Law and Equity Act, R.S.B.C. 1996,

c. 253 is rooted in the same predecessor legislation as s. 37(1)

of the English Senior Courts Act 1981, and is in almost identical

terms:

¬ 39 (1) An injunction or an order in the nature of mandamus may

be granted or a receiver or receiver manager appointed by an

interlocutory order of the court in all cases in which it appears to

the court to be just or convenient that the order should be made.

¬ Canadian law on the authority to issue injunctions has paralleled

that of England. In my view, Arnold J.’s conclusions with respect to

the jurisdiction of English courts to grant injunctions are equally

applicable to the Supreme Court of British Columbia.” Equustek

Solutions Inc. v. Google Inc., 2015 BCCA 265


http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-253/latest/rsbc-1996-c-253.html#sec39subsec1_smooth



http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-253/latest/rsbc-1996-c-253.html








¬ “Section 49 of the Charter provides that punitive damages may

be awarded if there is an unlawful and intentional interference

with any of the rights and freedoms that the Charter

recognizes. The evidence establishes unlawful and intentional

interference with several of Robinson’s Charter rights.

Copyright infringement is a violation of s. 6 of the Charter,

which provides that “[e]very person has a right to the peaceful

enjoyment and free disposition of his property, except to the

extent provided by law”: see Construction Denis Desjardins

inc. v. Jeanson, 2010 QCCA 1287 (CanLII), at para. 47.

Additionally, the infringement of copyright in this case

interfered with Robinson’s personal rights to inviolability and to

dignity, recognized by ss. 1 and 4 of the Charter.” Cinar

Corporation v. Robinson, [2013] 3 SCR 1168


How will authors/copyright holders do?

¬ Linking – Svensson, Bestwater, GS Media?

¬ Internet retransmission and network clouds – Aereo and

Cablevision?

¬ Digital exhaustion – ReDigi?

¬ Fair dealing – Google Books?

¬ Internet intermediary responsibility – BMG, Cartier?

¬ Culture?


VANCOUVER

Suite 1300, 777 Dunsmuir Street

P.O. Box 10424, Pacific Centre

Vancouver BC V7Y 1K2

Tel: 604-643-7100

Fax: 604-643-7900

Toll-Free: 1-877-244-7711

CALGARY

Suite 3300, 421 7th Avenue SW

Calgary AB T2P 4K9

Tel: 403-260-3500

Fax: 403-260-3501

Toll-Free: 1-877-244-7711

TORONTO

Box 48, Suite 5300

Toronto Dominion Bank Tower

Toronto ON M5K 1E6

Tel: 416-362-1812

Fax: 416-868-0673

Toll-Free: 1-877-244-7711

MONTRÉAL

Suite 2500

1000 De La Gauchetière Street West

Montréal QC H3B 0A2

Tel: 514-397-4100

Fax: 514-875-6246

Toll-Free: 1-877-244-7711

QUÉBEC

Le Complexe St-Amable

1150, rue de Claire-Fontaine, 7e étage

Québec QC G1R 5G4

Tel: 418-521-3000

Fax: 418-521-3099

Toll-Free: 1-877-244-7711

UNITED KINGDOM & EUROPE

125 Old Broad Street, 26th Floor

London EC2N 1AR

UNITED KINGDOM

Tel: +44 (0)20 7489 5700

Fax: +44 (0)20 7489 5777
