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.
Archive for the ‘Fair Dealing’ category
During the copyright reform process leading up Bill C-32 (the Copyright Modernization Act), some proponents of reform had advocated broadening the Copyright Act’s fair dealing exception to a US style fair use regime. This was opposed by a wide spectrum of the Canadian creative community. Eventually the proposal was not adopted when Bill C-11 was finally proclaimed into force. See, Barry Sookman and Dan Glover, Why Canada Should Not Adopt Fair Use: A joint submission to the Copyright Consultation
Last week was a very eventful one in copyright law with three significant copyright rulings from US courts. The US Supreme Court ruled that importing genuine grey market works into the US does not infringe copyright. The Ninth Circuit affirmed a ruling that the Canadian bitTorrent site isoHunt is liable for contributory copyright infringement. Last, a US District Court ruled that Meltwater’s controversial electronic news clipping service is liable for copyright infringement and is not protected by fair use doctrine.
Yesterday, I gave a talk at the Law Society of Upper Canada’s 17h Annual Intellectual Property Law: The Year in Review program. My talk canvassed developments in copyright in Canada and around the world in 2012. My slides are shown below. The associated paper prepared in collaboration with Glen Bloom, with the help of others, is available here.
The following copyright cases from Canada, the USA, UK and Ireland, Australia, and Europe are dealt with in the paper and slides.
Aga Khan v. Tajdin, 2012 FCA 12
The Copyright Board released a decision earlier today dismissing the application of the Canadian Association of Broadcasters (CAB) for a decision reducing the royalties paid by commercial radio stations to CSI, AVLA/SOPROQ and ArtistI by 90 per cent, from November 7, 2012 until the Board renders a decision on the merits in the commercial radio tariff proceeding.
The CAB contended there is no longer a legal basis for a tariff targeting the reproduction of a sound recording, or a performer’s performance or work that is embodied in a sound recording, by commercial radio stations as a result of the recent Bill C-11 amendments to the Copyright Act and the fair dealing decision of the Supreme Court in SOCAN v. Bell Canada. The CAB also asked the Board to issue a decision rescinding the CSI tariff.
I can’t figure this one out. I’m a lawyer, not a psychologist.
After the Supreme Court of Canada released its decision in the Access Copyright case, two academics, Michael Geist and Ariel Katz, stepped up their attacks on Access Copyright.
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.
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.
Just over two weeks ago, the Supreme Court released its opinion in the Alberta (Education) v. Canadian Copyright Licensing Agency, 2012 SCC 37 (Access Copyright) fair dealing case. In that proceeding, the Copyright Board examined whether copying of short extracts of works for classroom teaching purposes was a fair dealing.* The Board and the Federal Court of Appeal found it was not. The Supreme Court allowed the appeal and remitted the matter to the Board to reconsider its decision in accordance with the Court’s construction of the fair dealing factors.