Does by-passing a subscription paywall to access a news article violate the new prohibitions in the Copyright Act that make it an infringement to circumvent a technological protection measure (TPM)? Yes, according to a decision just released by an Ontario court in 395804 Ontario Limited (Blacklock’s Reporter) v Canadian Vintners Association, 2015 CanLII 65885 (ON SCSM). Can a defendant rely on the new fair dealing defense for education to excuse the copying if the defendant illegally accessed the work by circumventing a TPM to do so? No, the fair dealing defense cannot apply where a work is obtained illegally.
Archive for the ‘C-11’ category
The Government announced today that the notice and notice regime established under C-11 is coming into force in January 2015. The delay in bringing these provisions into force was a consultations on possible regulations that the regime permitted. The Government announced that the provisions are coming into force without regulations.
The regime permits copyright owners to send notices to internet service providers and other internet intermediaries claiming infringement of copyright. The notices must be passed on by these service providers to their users. Because there are no regulations, the notices must be processed and passed on by the internet intermediaries without any fees payable by copyright owners.
In the ESA v. SOCAN, 2012 SCC 34 case, the Supreme Court decided by a 5 to 4 majority that the transmission of a copy of a musical work to members of the public is not a communication to the public within the meaning of Section 3(1)(f) of the Copyright Act. When the Copyright Modernization Act was enacted the communication to the public right was expanded to expressly confer on copyright holders making available rights required by the WIPO Treaties. This was accomplished, inter alia, by the inclusion of Section 2.4(1.1) which provides that:
Bill C-11, the Copyright Modernization Act, with a few exceptions, is now law with the publication of the Governor General Order in Council. The fourth attempt to amend the Copyright Act since 2005 succeeded where Bills C-60 (2005), C-61 (2008), and C-32 (2010) did not.
A lot has changed since 2005 when Bill C-60 was first introduced. That Bill would have made a limited, but important, set of amendments. Its summary reminds us that it would have amended the “Copyright Act to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, to clarify the liability of network service providers, to facilitate technology-enhanced learning and interlibrary loans, and to update certain other provisions of the Act.” Bill C-11 addresses far more than this.
The Privy Council has released a copy of notice dated October 25, 2012 (P.C. 2012-1392) setting out when the amendments to the Copyright Act will come into force. The information in the notice, which has been published by some law libraries, provides for the amendments to come into force in three stages.
- Most amendments will come into force when the notice is officially published in the Canada Gazette Part II which is expected to take place soon and perhaps as early as November 7, 2012.
My mother warned me to be suspicious when people give gratuitous compliments. So, I read with some suspicion the recent blog post by Ariel Katz, who responded to my post Did the Supreme Court eviscerate Access Copyright’s business model? A reply to Michael Geist, generously calling me a “well experienced lawyer” and a “smart well-trained lawyer”.[]
In that post I argued that Michael Geist’s claim that the Supreme Court’s decision eviscerated Access Copyright’s business model did not stand up to scrutiny. I pointed out that his assertions completely ignored the teachings of the Supreme Court that whether something is a fair dealing is a question of fact and that his claims were not based on any analysis to demonstrate why the Supreme Court decision had the effects he claimed.
Last week, The US Congressional International Anti-Piracy Caucus published its 2012 International Anti-Piracy Caucus Country Watch List. Canada, which had previously been on the watch list, has now been reclassified along with Spain as a country “in transition”. According to the report, “Both Canada and Spain have taken positive steps towards putting in place a stronger legal framework for the protection of copyright, and as such we have included them this year as countries in transition to acknowledge the progress made, while urging both to follow through strongly on their commitments.”
Canada’s progress was described by our most important trading partner as follows:
Michael Geist in a series of recent blog posts claims that the decisions of the Supreme Court in the SOCAN v. Bell Canada, 2012 SCC 36 (SOCAN v Bell) and Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (Access Copyright) cases eviscerated Access Copyright’s business model. He asserts that the cases make all copying that would be subject to a license from Access Copyright fair dealings. Moreover, he claims that publishers would not suffer significant economic harm if all copying permitted under Access Copyright licenses or model licenses were fair dealings and no educational institution, whether elementary, secondary, or post-secondary, paid a penny for all such uses.
Earlier this week, the Australian Law Reform Commission published an Issues Paper titled Copyright and the Digital Economy. The paper asked 55 questions about copyright and possible reforms to Australia’s copyright laws. The paper discusses many reforms debated in Canada during the 2009 Copyright Consultations and more recently during the debates and examination of The Copyright Modernization Act (Bills C-32 and C-11) in the House of Commons Special Legislation Committee. These include new exceptions to permit copying for private uses such as format and time shifting, online uses for social media, uses by libraries, archives and for education, and safe harbours for Internet intermediaries.