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
It was another busy two weeks in copyright with courts in the UK and US canvassing whether browsing a work, hosting a user generated content site, and creating appropriation art, infringes copyright. The opinions of the three courts (finding no liability in each case) on copyright policy was perhaps as interesting as the holdings themselves. On top of that, a U.S. appeals court ruled that the DMCA hosting exception does not apply to pre-1972 sound recordings.
Here is a message from the WIPO Director General Francis Gurry on World Intellectual Property day:
On World IP Day we encourage people to reflect about the role of intellectual property in our changing world. I believe there is a certain genius in intellectual property. What it does is create a unique incentive for investment in research and development, in innovation, and in cultural creation and production.
How does it do that? By creating a mechanism for buying, selling and sharing access to the benefits of innovation and cultural creation. Our challenge is to ensure that the conditions for access are fair and balanced, so that the benefits are widespread, and so that it fosters a truly dynamic, creative global society in which the next generation will thrive.
The CRTC recently published a Report on the Informal Consultation of 25 February 2013 among Industry and Consumer Groups and CRTC Staff on Canada’s Anti-Spam Legislation. The consultation followed the Commission’s release of guidelines on CASL.
The objective of the informal consultation “was to facilitate a focused conversation and gather useful information regarding issues that businesses and consumer groups foresee when CASL comes into force.” The discussions focused on six topics:
- Proof of consent
- Section 66 of CASL and the three-year transitional period
- Obtaining consent to send a commercial electronic message (CEM) – seeking consent for affiliates
Access Copyright has taken legal action on three fronts. It sued York University for reproducing works covered by its repertoire without payment of royalties under the Interim Tariff approved by the Copyright Board. It also filed an application for an interim tariff covering copying in elementary and secondary schools. Last, Access Copyright filed a proposed post‐secondary tariff for the period of 2014‐2017. Access Copyright’s press release is here. A copy of the Statement of Claim is here.
The annual Fordham IP law conference is, in my view, second to none. This year”s Fordham’s 21st Annual Conference on Intellectual Property Law and Policy was sensational. Great program and fabulous international faculty. IPkat reported on some of the sessions.
On Friday, I was on a panel Performance Rights in Copyright: Public, Private or “Digital”? The speakers and panelists with me were Profs. Tyler Ochoa (Santa Clara U. School of Law) and Jane Ginsburg (Columbia), David Ellen (GC Cablevision), Dr. Silke von Lewinski (Max Planck Institute for IP) and Janet Cullum (Cooley). It was a very timely panel, especially given the recent release of the opinion in WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd.Cir.Apr, 1, 2013). Judge Chin who delivered the powerful dissent in the Aereo case was in the audience.
ReDigi runs a digital music resale business. Buyers of tracks from iTunes or ReDigi can sell them using ReDigi’s service. The service scans hard drives of users and transmits copies of tracks to its cloud. Buyers wanting the music can acquire copies at a discount from iTune’s price from ReDigi. ReDigi was sued for copyright infringement. The novel question was whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine. In Capitol Records, LLC v. ReDigi Inc., 2013 WL 1286134, (S.D.N.Y., March 30, 2013) a US District Court found ReDigi’s service infringing on just about every asserted ground.
The Federal Court of Appeal ruled this week that the Crown is bound by the Copyright Act. In Manitoba v. Canadian Copyright Licensing Agency (Access Copyright), 2013 FCA 91 the Court made it clear that the structure of the Act, its legislative history and evolution all lead to this conclusion:
The Second Circuit released an important opinion yesterday ruling that Aereo’s New York based Internet streaming service does not infringe the US public performance right. In WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd.Cir.Apr, 1, 2013), by a two to one majority, the Court ruled that the technical architecture of the service which is based on “renting” mini-antennas and transcoders to members of the public that are used to stream over the air live broadcasts renders the service non-infringing.
Central to the Court’s ruling was it prior decision in the Cablevision case which according to the Court established the following: .