Shortly after the Copyright Board certified Tariff 8 setting royalty rates for webcasting services in Canada, 70 music organizations publicly denounced it. They called it “a serious setback for the music community in Canada” and “for artists and the music companies who invest in their careers”. A core criticism was the Board’s refusal to use freely negotiated market-based agreements as the proxy to set the rates and to certify the tariff at 10% of the rates that the same services pay in the U.S.
Archive for the ‘Copyright’ category
In Club Resorts Ltd. v Van Breda, 2012 SCC 17, the Supreme Court clarified the rules for when a Canadian court can assume jurisdiction over a claim against a party located outside the jurisdiction. Specifically, it clarified the rules for applying the real and substantial test to determining if there is a sufficient connection between the subject matter of the action and the jurisdiction for determining jurisdiction simpliciter. The Van Breda case did not, however, address how that test would apply to cases involving infringement of copyright.
In the landmark ruling in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (case no. C-131/12, May 13, 2014), the Court of Justice of the European Union (CJEU) recognized that search engines are controllers of the personal information they process and have the obligation, in appropriate cases, to de-list links to personal information in their search results. A recent decision in Mosley v Google Inc & Anor  EWHC 59 (QB) (15 January 2015) has recognized that a right to get a blocking order against a search engine might also exist in the United Kingdom under the UK Data Protection Act 1998. The case also illustrates the challenges individuals have in vindicating their privacy interests in the Internet context.
On January 22, I gave a talk at the Law Society of Upper Canada’s 19th Annual Intellectual Property Law: The Year in Review program. My talk canvassed developments in copyright in 2014. I previously published a paper that summarizes leading cases from Canada, the United States, elsewhere in the Commonwealth and the European Union called Copyright law 2014: the year in review and is available at the link on my blog.
My slides from the LSUC talk are reproduced below and summarize the following cases:
As the creative industries continued to grow economically in importance in 2014, so have the stakes in copyright litigation. Increasingly, the courts have been challenged to resolve complex disputes arising from new uses of works and other subject matter brought about by innovations in technology. While content is often a core and indispensable element of new and innovative services, products or offerings, frequently parties dispute whether the use requires permission and payment to rights holders or can be engaged in without permission or payment. This post reviews some of the highlights of the court battles of 2014 in Canada and other Commonwealth countries, the United States and the European Union.
Blocking orders against web sites and services that engage in or enable copyright infringement are common in the European Union. BitTorrent sites like The Pirate Bay are a frequent target of such orders. See, Keeping The Pirate Bays at Bay: using blocking orders to curtail infringements; Blocking orders against ISPs legal in the EU: UPC Telekabel Wien.
To prove copyright infringement, the claimant has the onus of proving two things: first the alleged infringer created his or her work by copying from the copyright owner’s work (copying in fact); second, that all or a substantial part of the original work was copied (illicit copying). The analytical steps in each inquiry have been considered in numerous cases. For example, the Supreme Court of Canada reviewed the steps a Canadian court should follow in establishing illicit copying in a “altered copying” case in Cinar Corporation v. Robinson, 2013 SCC 73 (summarized here).
The Supreme Court granted leave to appeal today in another copyright case, Canadian Broadcasting Corporation / Société Radio-Canada v. SODRAC 2003 Inc. The appeal is from the decision of the Federal Court of Appeal which ruled that broadcasters must pay royalties for ephemeral recordings in accordance with the 1990 decision of the Supreme Court in Bishop v. Stevens.
On May 16, 2014 the Copyright Board released its decision certifying Re: Sound Tariff 8 setting royalty rates for webcasting services in Canada. Re:Sound promptly filed an application for judicial review of the decision, calling it a “significant outlier in the world” that “greatly disadvantages the Canadian music industry in the globalized market place.” Re:Sound’s application was met with a blizzard of support when 70 music organizations released a joint statement publically denouncing the Copyright Board decision. They called it “a serious setback for the music community in Canada” and “for artists and the music companies who invest in their careers”.
In an important decision rendered on June 13, 2014, a Canadian court ordered Google to block a website that was selling goods that violated the trade secrets of the plaintiffs. The plaintiffs obtained a default judgment against the defendants. But, the defendants continued to sell the offending goods over the Internet. The plaintiffs, unable to enforce their judgment, asked for Google’s help in blocking the website. Google voluntarily de-indexed specific URL’s requested by the plaintiffs, but this “whac-a-mole” process was ineffective. When Google refused to de-index the offending websites from its search results, the plaintiffs brought a motion against Google for interim relief requiring Google to de-index the websites. Over Google’s objections, in Equustek Solutions Inc. v. Jack 2014 BCSC 1063, Madam Justice Fenlon of the British Columbia Supreme Court granted the injunction.