September 25, 2012

Herb Regehr and Kwan LohBull, Housser & Tupper LLP

Changes to Copyright Law – a Practical Discussion

• Protects: expression of idea (not idea itself)

• Owner: author is first owner, except for employees

• Term: arises on creation; life of author + 50 years

• Assignment: copyright can only be assigned in writing

Copyright - Basics

Copyright

Copyright

Literary Works

Dramatic Works Musical Works

Artistic Works

What’s special about 2012?

• 2012 – a year of change

• Copyright Modernization Act

• Five decisions from the S.C.C.

Copyright Modernization Act

• Bill C-11, or “The 4th time’s the charm”• 2005, 2008, 2011

• Why “modernize”?• Commitment to WIPO treaties – signed 1997• Account for “the digital age”

• Royal Assent – June 29, 2012

Key Topics

• Photographers

• Performers and sound recorders

• Enabling infringement

• Shelters and safe harbors

• Technological protective measures and rights management information (TPD and RMI)

Key Topics

• Exceptions for consumers

• Exceptions for educational institutions

• Limitation on statutory damages

• Fair dealing

Photographers

• Now own copyright in their photographs• subject to agreement to contrary

• Exception to infringement for commissioner• Non-commercial purpose

• Revise agreements with photographers?

Performers and Sound Recorders

• Right to make available and distribute• recognition of Internet as means of

communication

• Performers now have moral rights• 50 years from publication• Need for waivers?

Enabling infringement

• Providing a service “primarily for the purpose of enabling acts of copyright infringement” = infringement

• Pirate Bay, Isohunt

• Possibility of statutory damages• avoid need to prove damage

Shelters for ISPs

• As intermediary – not liable for infringement• caching; hosting are OK• only technical modification of material allowed• contrast with “enablers”• unless ISP has knowledge of Court decision

• Who is a “service provider”?

Shelters for ISPs

• Notice and Notice• copyright owner -> ISP -> alleged infringer• ISP to retain records on alleged infringer

• Failure to comply• remedy limited to statutory damages ($5,000

to $10,000)

Shelters for search engines

• “information location tools”• only technical modification of material allowed

• Only relief that can be claimed is injunctive – no damages!

• “Don’t be Evil”…

TPMs and RMIs

• TPMs control access to or restrict use of digital material• e.g. digital locks, registration/activation keys,

encryption• can trump copyright exceptions (fair use etc.)

• RMIs manage information about a copyrighted work and its owner• e.g. digital watermark

TPMs and RMIs

• Prevent:• Circumvention of TPMs; tampering with RMIs

• No removal or alteration of RMI without consent• injunction, damages, accounting, delivery up,

etc.

Consumer exceptions

• Non-commercial user generated content• the “YouTube” provision – mash-ups • non-commercial• credit original source• no reason to believe source material infringes• no adverse effect on source

Consumer exceptions

• Reproduction for private purposes and backup copies• original legally obtained / non-infringing• does not circumvent TPM• not given away• used for private purposes / solely for backup

Educational institutions

• Reproduction and display of work for purpose of education on premises

• Distance education lessons

• Digital reproduction of licensed works

• Use of publicly available works for education

Limitation on statutory damages

• New: “non-commercial infringement”

• $100 to $5,000 for all infringements

• Contrast to $500 to $20,000 for commercial infringement

• How will “non-commercial” be defined?

Fair dealing – statutory changes

• New categories:• education• parody• satire

• Broadens fair dealing – but still not the same as fair use in the U.S.

Fair dealing – statutory changes

• Dealing must be “fair” (CCH)• purpose• character• amount• alternatives• nature of the work• effect of the dealing on the work

Fair dealing – statutory changes

• Parody: close imitation for purposes of humor or ridicule

• Satire: holding up human practices to ridicule or scorn through sarcasm, irony or trenchant wit

• Poor “Bim” – open season?• Michelin v. CAW (FCTD) – union held liable• How thick is your corporate “skin”?

Fair dealing – statutory changes

Fair dealing – S.C.C. cases

• SOCAN v. Bell Canada• music previews (e.g. on iTunes) – fair?

• Yes – previews constitute fair dealing for research (9-0 decision)

Fair dealing – S.C.C. cases

• SOCAN v. Bell Canada• liberal interpretation of “research”

• fairness analysis:> previews help consumers’ purchase decision> effect of previews is to increase sales of the work> no copies existed after preview heard> of lower quality

Fair dealing – S.C.C. cases

• Alberta v. Access Copyright• multiple copies of short excerpts of textbooks

as complement to main textbook – fair?

• Yes – “private study” by students (5-4 decision)

Fair dealing – S.C.C. cases

• Alberta v. Access Copyright

• Majority:• teachers facilitate students’ research and

private study; no ulterior motive• private study focused on concept of studying;

need not be in isolation

Fair dealing – S.C.C. cases

• Alberta v. Access Copyright

• Majority:• no reasonable alternative to achieve the same

purpose• no evidence that decline in textbook sales

resulted from competition with copies• copying facilitates access to books already

purchased

Fair dealing – S.C.C. cases

• Alberta v. Access Copyright

• Minority:• teacher’s purpose: to teach students (now

have education as “fair dealing”)• “private study” = individual study; otherwise

“private” has no meaning• absence of alternative does not necessarily

make dealing fair

Practical implications

• Unfortunately, there is little certainty

• Those working with photographers and performers – consider existing agreements and whether there is need to revise

• Ensure websites are not enabling infringement

Practical implications

• Set up Notice and Notice procedures

• Re-evaluate litigation (existing and potential)• Understand the shelters and exemptions

available to ISPs, search engines, educational institutions and consumers, and possible changes re: statutory damages / injunctive relief

Questions?

Thank you!