communication to the public Archives

Copyright Lawyer Insights from the ALAI 2025 Copyright Year in Review

This year had some particularly interesting caselaw developments including cases on copyright subsistence and ownership, infringement, defenses and remedies. As in prior years, there were also a few questionable holdings by courts around the country.

My 2024-2025 Copyright Year in Review presentation is available below. It has yellow colored highlights on the portions of the cases I focused on during my talk to AlAI Canada copyright lawyer members.…

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Five Tech Cases Everyone Needs to Know – SOCAN v CAIP

The Supreme Court decision in SOCAN v CAIP was a landmark copyright decision that broke new ground on the liability (or immunities) of ISPs for copyright infringement in Canada and in formulating the territorial scope of the Copyright Act. It was argued for CAIP by Internet lawyer Barry Sookman and Thomas Heintzman.

If you want to know more, you will want to listen to the podcast hosted by Connor Bildfell and my interview with him on the case. You may also be interested in the case comment I published on the case which can be accessed here.…

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Barry Sookman Supreme Court appellant lawyer

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Supreme Court of Canada confirms all acts of making available are covered by Copyright Act: SOCAN v ESA

In a decision just released in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, the Supreme Court of Canada confirmed that Canada fully implemented its WIPO copyright Internet Treaty “making available” obligations through a combination of the communication to the public, reproduction, and authorization rights. In doing so, the Court held that any unauthorized act of making a work available online, and any subsequent unauthorized streaming or downloading of the work, are infringing.…

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Hard lessons in dataset licensing to create commercial products: 77m v Ordnance Survey

If you are interested in database licensing, the intrigue of how complex geo-spatial based services are developed, electronic mapping and polygons, the legality of scraping, how online terms governing databases are construed, and database rights, then the recent UK decision in 77m Ltd v Ordnance Survey Ltd [2019] EWHC 3007 (Ch) (08 November 2019) is for you.

The dispute in the case was between a start-up company 77m and Ordnance Survey (OS), the national mapping agency of Great Britain. 77m created a dataset called Matrix consisting of an up-to-date, detailed and accurate list of the geospatial coordinates of all the residential and non-residential addresses in Great Britain containing 28 million records.…

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Kodi box add-on distributor loses copyright appeal: Bell v Adam Lackman dba TVADDONS.AG

Illegal streaming of TV and movie programming fueled by the sale of illicit streaming devices (ISDs) (such as fully loaded Kodi boxes) and websites that make available to the public software add-ons configured and marketed to facilitate receipt of pirate streams is a real problem in Canada. The most effective way of reducing this type of illegal streaming is by the use of website blocking, something the CRTC will have to consider in the FairPlay Canada website blocking application.

In the meantime, the less effective but still very important ground game against the distribution of ISDs and software add-ons continues.…

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Copyright Board making available right decision released

The Copyright Board just released its long awaited decision on the scope of the making available right under the Copyright Act. In a well reasoned and thorough decision, the Board ruled that the MAR right applies to the making available of both streams and downloads, acts that have to be exclusive rights in order for Canada to meet its international treaty obligations under the WCT and WPPT.

The Board summarized its reasons as follows:

As will be made clear from the reasons that follow, subsection 2.4(1.1) of the Act deems the act of placing a work or other subject-matter on a server of a telecommunication network in a way that a request from a member of the public triggers the transmission of that work or subject matter, including in the form of a stream or download, whether or not such a request ever takes place, to be a communication to the public by telecommunication.

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Legality of Kodi boxes: my interview with Fairchild TV

Kodi boxes pre-configured to enable buyers to stream and download movie and TV content are proving to be a challenge to producers and distributors of this content in Canada and around the world. Recently the Federal Court granted an injunction prohibiting the sale of certain pre-configured boxes. The decision was recently affirmed by the Federal Court of Appeal.

I was interviewed earlier this week about the these decisions and the legality of the sales and uses of these boxes. My interview can be viewed here and below.…

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Why crackdown on pirate set-top boxes is good for innovation: a reply to Michael Geist

Last week the Federal Court granted an interlocutory injunction restraining ITVBOX.NET, WATCHNSAVE INC, MTLFREETV.COM and others from selling set-top boxes preloaded with software. The software was specifically adapted to enable purchasers to stream and download infringing copies of programs made available by Bell, Bell Expressvu, Rogers, and Videotron on a subscription basis. The devices were advertised and promoted by prominently emphasizing these capabilities and as a way to obtain this content without paying.

The decision by Justice Tremblay-Lamer in Bell Canada v ITVBOX.NET…

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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.…

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YouTube, Facebook, Netflix liable to pay for music in Canada rules Copyright Board

On Friday, the Copyright Board released a decision and certified two SOCAN tariffs, Tariffs 22.D.1 (Internet – Online Audiovisual Services) and 22.D.2 (Internet – User-Generated Content). The years covered by the tariffs are 2007-2013.

The tariffs were certified based on agreements reached between SOCAN and objectors. Between the objectors and other entities which filed submissions, the heavyweights affected by the tariffs participated including Apple, Yahoo!, YouTube, Netflix, Facebook, Cineplex, the members of the Canadian Association of Broadcasters (CAB), and the Canadian ISPS Rogers, Bell, and Shaw.…

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