Copyright

Litigation

Law Reform

In late 2012, Voltage Pictures sued over 2000 filesharers for sharing copies of Voltage's films over Bittorrent. To identify the alleged infringers, Voltage had to file a motion asking the court to order an Internet Service Provider (ISP), Teksavvy, to hand over the subscriber identities linked to the sharing activity.

In early 2013, CIPPIC was granted leave to intervene in that motion. CIPPIC's interest in the case stemmed from its desire to (1) ensure that the test for disclosing identities associated with anonymous internet activity remains sufficiently robust to protect high-value speech, such as whistle-blowing and online criticism, and (2) ensure that copyright trolls did not set up shop in Canada, employing taxpayer-funded Canadian courts as tools in a shakedown scheme that has emerged in the United States and England.

The Federal Court's decision, released February 20, 2014, offers aggrieved copyright owners a carefully calibrated tool for seeking redress for good faith claims of copyright infringement while at the same time trying to slam the door on copyright trolls. The Court has asserted that these sorts of proceedings will go forward as a "specially managed proceeding", subject to robust judicial oversight designed to ferret out abuses, protect privacy, and deter profiteering in the name of copyright infringement.

The National Post, followed by Richard Warman today withdrew their respective appeals of the important Federal Court decision in Warman v. Fournier, 2012 FC 803. The withdrawals occurred just five days before the appeal was set down to be heard before the Federal Court of Appeal. The decision has enormous implications for journalists, bloggers, and online free speech generally.

The surprise move means that Justice Rennie's initial findings stand. The Appellants challenged these, arguing that:

  • hyperlinks do not count as 'attribution' (a pre-requisite to the exercise of some fair dealing rights);
  • copyright law's limitation period applies to works published on the internet is effectively renewed daily, as the content posted to the Internet is reproduced 'every day' it remains available, leading to never ending potential liability;
  • platform hosts are liable for content posted to their sites even before they receive notice from a litigang that the content in question may be infringing; and
  • reproducing general excerpts from an original work amounts to taking a "substantial part" of the work when assessing a non-economic claim of infringement.

CIPPIC had intervened in the case and filed a Memorandum of Fact and Law supportive of the holdings of Justice Rennie at the trial level. For more information, see our resource page: https://cippic.ca/copyright/national_post_v_fournier

CIPPIC's submission to the Notice and Notice consultations calls for a fair system that facilitates good faith allegations of infringement while dissuading misuse of the system.  

The Notice and Notice consultations pertain to the system estblished in the Copyright Modernization Act for copyright owners to provide internet service providers and search engines with notices alleging infringement with respect to the activities of customers of those services.  The ISPs and search engines are obliged under the law to forward the notices.  The consultations seek input on the implementation of the system.

CIPPIC's submission calls for clear identifiecation of the party making the allegation and the works involved, clarity that the notice is merely an allegation - not a determination - of infringement, and penalties for misuse of the notice system.

CIPPIC has been granted leave to intervene at the Federal Court of Appeal in two appeals that raise important copyright issues. National Post v. Fournier and Warman v. Fournier are being heard together. The cases raise important issues such as whether hyperlinks count as 'attribution' (a pre-requisite to the exercise of some fair dealing rights), the application of copyright law's limitation period to works published on the internet (specifically, whether something posted to the Internet is reproduced 'every day' it remains available online), whether reproducing excerpts from an original work amounts to "substantial" reproduction when assessing a non-economic claim of infringement and the nature of liability for Internet intermediaries such as online discussion platforms.

The Court of Appeal also granted the Computer and Communications Industry Association intervener status in the appeal.

CIPPIC has been granted leave to intervene in Voltage Pictures LLC v. Doe. Voltage has alleged that approximately 2000 unknown individuals, identified by IP address, have unlawfully downloaded movies and thereby infringed its copyright. Voltage subsequently filed a motion asking the court to order an Internet Service Provider, Teksavvy, to hand over the subscriber identities linked to those IP addresses. CIPPIC is now able to participate in that motion.

CIPPIC asked to intervene in order to argue for the protection of Canadians' privacy, and to ensure that all procedural safeguards were respected. As part of its intervention CIPPIC will be allowed to challenge Voltage's evidence, and question whether it is robust enough to justify handing over customers' personal details. CIPPIC will also be allowed to introduce its own evidence, and to make arguments about the proper legal tests to follow in file-sharing lawsuits. We expect to provide evidence to court by the end of this month.

Update: Adjournment granted. On January 14, 2013, the Federal Court agreed to adjourn the hearing of Voltage's motion to disclose the identities of TekSavvy subscribers until after a determination of CIPPPIC's motion to intervene.

The Federal Court case of Voltage Pictures LLC. v Doe (Court File No. T-2058-12) signals the return of file-sharing lawsuits to Canada. Voltage alleges that unnamed defendants, identified by IP Address, have downloaded its films unlawfully via bittorrent. Voltage has filed a motion asking the Court to order Teksavvy, an Internet Service Provider, to disclose records that will enable it to identify the individuals associated with those IP Addresses. CIPPIC has filed a motion to intervene in Voltage's request to compel TekSavvy to identify those individuals. Voltage’s motion to compel TekSavvy to identify its subscribers is set down to be heard on Monday, January 14th. CIPPIC has written a letter to the Court asking that Voltage's motion not be heard until after the Court has had an opportunity to rule on CIPPIC's intervention application.

COPYRIGHT TROLLs

Introduction

The phrase “copyright troll” refers to the emerging business practice among copyright owners of sending aggressive letters to individuals and businesses claiming copyright infringement and threatening to sue if the recipient does not pay an expensive “retroactive license” fee.  To date, stock image companies and motion picture producers have been Canada’s most active copyright trolls.
 

F.A.Q.

Content

FAQ on privacy and copyright issues raised by photography-related activities.

c e t a


Introduction

In 2002, the European Commission and the Government of Canada agreed to “design a new type of forward-looking, wide-ranging bilateral trade agreement covering…new generation issues and outstanding trade barriers.”
 
On May 6, 2009, Canada and the European Union (EU) announced the launch of formal negotiations towards the new trade and investment agreement, the Comprehensive Economic and Trade Agreement (CETA).
 
CETA is intended to build upon previous economic cooperation agreements between Canada and the EU, starting with the 1976 Framework Agreement for Commercial and Economic Co-operation, as well as the 1998 EU-Canada Trade Initiative.
While the scope of CETA is broad, this F.A.Q. will focus on intellectual property issues.

 

The Anti-Counterfeiting Trade Agreement, or "ACTA", is a controversial trade agreement negotiated by a number of nations, including Canada. ACTA addresses standards of enforcement of intellectual property rights. ACTA's content has the potential to impact civil liberties and divert public resources towards the enforcement of private rights.

Bill C-61 was a bill to amend Canada's Copyright Act. The bill died on the order paper with the election of 2008. However, the present government has indicated in its Throne Speech that it intends again to introduce legislation to amend the Copyright Act. Accordingly, we keep this FAQ available to the public.

Over the past few years, file-sharing - i.e., the sharing of files over peer-to-peer (P2P) networks - has become a popular way for music lovers to sample and gather music from a wide range of performers. However, most of the music downloaded and shared by consumers is copyrighted and hence, subject to laws limiting the rights of consumers to reproduce and distribute it.

Digital Rights Management (DRM), also sometimes called ECMS, or electronic copyright management systems, are technologies designed to automatically manage rights in relation to information. This can include preventing copyright works and other information from being accessed or copied without authorization and establishing and enforcing license terms with individuals.

Copyright is a system of laws for promoting both the creation of and access to artistic, literary, musical, dramatic and other creative works. It is usually presented as a balance between promoting the public interest in the encouragement of the creation and dissemination of works of the arts and intellect, and obtaining a just reward for the copyright holder

The broadcast flag is a Digital Rights Management (DRM) system for controlling consumer treatment of high-definition television (HDTV) broadcast content.

Bill C-60 was a proposal to amend Canada's Copyright Act. The Bill died on the order paper with the fall of the Martin government in 2005. However, the issues that motivated the government to table this Bill remain with us.

On March 4, 2004 the Supreme Court of Canada released its decision in the case of Law Society of Upper Canada v. CCH Limited [2004] S.C.J. No. 12, (2004) 236 D.L.R. (4th) 395 holding (i) that the Copyright Act's fair dealing exception should be liberally interpreted to prevent undue restraint of users' rights and (ii) that the provision of self-service photocopiers does not equal an infringement of copyright.

The Supreme Court of Canada heard arguments on Dec.3, 2003 from Internet Service Providers (ISPs) and music industry representatives in an important case that will decide, among other things, the extent to which Canadian ISPs are liable for content flowing through their networks, and the extent to which foreign actors who target communications to Canadians may be liable under the Canadian Copyright Act.

National Post/Warman v. Fournier, Federal Court of Appeal

Voltage v. Doe, Federal Court, 2013

CIPPIC has filed a Statement of Defense on behalf of its client, Geolytica, in response to a lawsuit filed by the Canada Post Corporation in the Federal Court of Canada (File No. T-519-12) claiming that it owns copyright in its database of postal codes and that Geolytica has infringed that copyright by "crowd-sourcing" data for its own database of postal codes mapped to street addresses.

The case raises fundamental copyright issues, including the scope of protection afforded compilations of data, the subsistence of copyright in factual address identifiers such as postal codes, and the availability of defenses such as fair dealing to developers of research tools such as Geolytica's Canadian Postal Code Geocoded Dataset.  The case will have significant implications for downstream innovators and analysts looking at using datasets for research and to facilitate the research of others.

 

Copyright Pentalogy (SCC, 2012)

Following through on its threat, the Canadian Recording Industry Association (CRIA) launched a lawsuit in the Federal Court (Trial Division), in Toronto Ontario, on February 10, 2004 against 29 unnamed alleged music file-sharers.

Canada's 2010 Digital Economy Consultation

To better understand the basics of copyright law, Prof. Samuel E. Trosow (Western Ontario University)
presents to us his master class: Introduction to Copyright Law and prospects for new legislation.

In 2005, parliament considered revisions to the Copyright Act in order to ensure that Canada's copyright framework remained relevant in the rapidly changing digital environment. The Canadian government introduced a long-awaited bill to amend the Copyright Act on June 20, 2005.
On November 3, 2004, CIPPIC Associate Alex Cameron presented a brief to the Senate Standing Committee on Social Affairs, Science and Technology on Bill S-9, proposed amendments to the Copyright Act that would give photographers first ownership of copyright in the photographs they take.

As Parliament considers legislated protection of Digital Rights Management (DRM) technologies (designed to detect and stop copying of digital works), the Privacy Commissioner of Canada has indicated her intent to "initiate a dialogue" with the departments of Heritage Canada and Industry Canada "to ensure that privacy risks" associated with any copyright legislation "are addressed." Some of the Commissioner's provincial counterparts have signaled their support of her initiative.

On May 12, 2004 the Standing Committee on Canadian Heritage, chaired by Sarmite D. Bulte, M.P. released an interim report listing a number of recommended reforms to Canadian copyright law. The first round of hearings for the report were launched in October 2003 where the Committee heard from a panel of invited witnesses including representatives from Canadian Heritage, Industry Canada, the Canadian Internet Policy and Public Interest Clinic, the Canadian Association of Internet Providers and the Canadian Motion Picture Distributors Association among others. As a result of these consultations, the Committee came up with a number of recommendations.

The Canadian government is considering amending Canada's copyright law. CIPPIC is greatly concerned with the proposals and recommendations contained in the Standing Committee on Canadian Heritage's Report on Copyright Reform.

In September 2003, the House of Commons Standing Committee on Canadian Heritage ("Heritage Committee") began its review of the Section 92 report published by Industry Canadain October 2002.