The Google Book project: is it fair use?

January 5th, 2014 by Barry Sookman No comments »

One of the most important, if not the most important, United States copyright cases decided in 2013 is The Authors Guild, Inc. v Google Inc. 2013 WL 6017130 (S.D.N.Y. Nov.14, 2013). The case has now been appealed to the Second Circuit Court of Appeals by The Authors Guild. The case raises issues of such significance to copyright holders and online service providers that it may well end up as a landmark precedent of the U.S. Supreme Court (assuming of course that certiorari is granted).*

Robinson v Cinar in the Supreme Court

December 24th, 2013 by Barry Sookman No comments »

sucro-3

In the last decade, the Supreme Court of Canada has canvassed many important issues in copyright law including the scope of the rights of reproduction and authorization, what makes a work original, and how to apply the fair dealing defense. In its decision released yesterday in Cinar Corporation v. Robinson, 2013 SCC 73, a unanimous Supreme Court released an important precedent dealing with many other core areas of copyright including the framework for how to assess if a “substantial part”  of a work has been reproduced, the assessment of damages for infringement including accounting of profits, non-pecuniary damages and punitive damages, the use of experts in a copyright case, the vicarious liability of directors for infringement, and whether copyright is protected by the Quebec Charter of human rights and freedoms. For copyright lawyers, this case is a goldmine – a treasure trove -of important copyright holdings by the Supreme Court.

CRTC FAQ on CASL

December 18th, 2013 by Barry Sookman No comments »

The CRTC just released a new FAQ on CASL. It contains little that is new and repeats much of what it had been previously said including in its two Guidelines. The focus of the FAQ are the anti-spam prohibitions. Some highlights are.

Disclaimer

These FAQs have been prepared by Commission staff in order to provide general information with respect to commonly posed questions about Canada’s Anti-Spam Legislation (CASL). This material is not to be considered legal advice, nor does it reflect a decision, policy or interpretation of CASL and/or its accompanying regulations, by the Commission, Office of the Privacy Commissioner, the Competition Bureau or, Industry Canada. Please note that this information may be subject to change.

The Industry Canada CASL regulations and RIAS: a lost opportunity

December 16th, 2013 by Barry Sookman No comments »

If it was not clear enough before that there are many problems with CASL, it became evident when Industry Canada released the final regulations and the Regulatory Impact Analysis Statement (the RIAS). CASL takes an extremely broad “ban all” approach to regulating commercial messages and the installation of computer programs. This structure makes the exceptions particularly important because every CEM sent without consent (and following the prescribed rules) and every computer program installed on any computer (machine or device) without consent (and making the required disclosures) as part of a commercial activity will be illegal. The regulations purport to address some of the major necessarily inadvertent consequences with CASL’s breadth and structure.  See, CASL Industry Canada regulations: summary and comments. However, they fall short in many very important respects.

Legislative and Judicial Approaches to Internet Regulation: CASL as a case study

December 14th, 2013 by Barry Sookman No comments »

Here are slides from a talk I gave earlier in the year to Justice Canada on the topic of approaches to Internet regulation. It used CASL of a case study of what not to do. The slides referred to the Alberta Court of Appeal decision in the United Food case. That decision has since been affirmed by the Supreme Court in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC (summarized here)

For more information about CASL, see, CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline.

CASL Industry Canada regulations: summary and comments

December 4th, 2013 by Barry Sookman 4 comments »

The Government has published final regulations and the Regulatory Impact Analysis Statement (RIAS) related to Canada’s anti-spam legislation (CASL). It has also published a copy of the Order in Council fixing the date when the Act will come into force. They are available on the fightspam.ca website.

Most of the Act will take effect on July 1, 2014. The sections of the Act related to the unsolicited installation of computer programs or software will come into force on January 15, 2015. The private right of action comes into force on January 1, 2017.

Industry Canada CASL Regulations published

December 4th, 2013 by Barry Sookman No comments »

Industry Canada Minister James Moore announced today that the new Industry Canada CASL regulations will be published in the Canada Gazette on December 18, 2013, just over a year after the second draft regulations were published for comment.

The final regulations are now also available on the fightspam.ca website along with an Explanatory Note, a Regulatory Impact Statement and an Order dealing with when CASL will come into force. CASL will come into effect on July 1, 2014. However, the computer program portion will only take effect on January 15, 2015. The private right of action will not come into force until July 1, 2017.

Intellectual property education: are Canadian law schools doing enough to support innovation?

November 26th, 2013 by Barry Sookman 2 comments »

Innovation is a major driver of economic growth. It is also central to the competitiveness of the Canadian economy. It is an engine that creates challenging and well paying jobs. The protection of intellectual property is an important element in promoting innovation and in supporting markets in the trade and dissemination of innovative and creative products and services.[1] Intellectual property is now a crucial asset, the ownership of which has become pivotal to corporations.  In some sectors their ultimate value is their IP.[2] Intellectual property lawyers can play an important role in enabling the acquisition, protection, and exploitation of intellectual property rights. Law schools can play an important role in training lawyers to provide these important services.  Are Canadian law schools meeting these innovation challenges?

Streaming websites blocked in UK: Paramount v Sky

November 18th, 2013 by Barry Sookman No comments »

The England High Court recently made an order requiring ISPs to block two linking websites located at www.solarmovie.so (“SolarMovie”) and www.tubeplus.me (“TubePlus”). In doing so, the court in Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors [2013] EWHC 3479 (Ch) (13 November 2013) ruled that the sites, which did not themselves host any content, were nevertheless liable for infringement because they facilitated streaming of content to users by hosting and organizing hyperlinks to the content without consent of copyright owners.

The nature of the sites in issue (the “Websites”) were describe by Justice Arnold as follows:

Alberta PIPA violates Charter says Supreme Court in IPC v United Food and Commercial Workers

November 15th, 2013 by Barry Sookman No comments »

The Supreme Court released a landmark decision today in the  Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 case. In short, the Court found that while Alberta’s privacy legislation PIPA plays a vital role in protecting privacy, it violated the Charter right to freedom of expression by precluding the use of personal information in the labour context. The ruling is an appeal from a decision the Alberta Court of Appeal, which is summarized here.

The headnote of the case reads as follows: