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Facebook Copyright by Bernard Goldbach https://flic.kr/p/a5K9eE (CC BY 2.0)

Supreme Court of Canada on Copyright Notices: Identification of IP Address “Not Conclusive of Guilt”

The initial emphasis on last week’s Supreme Court of Canada’s copyright notice decision has focused on how Internet providers can pass along the specific costs associated with subscriber disclosures beyond those required for the notice-and-notice system to rights holders. The ruling rightly restores the notice system back to its intended approach, but it is not the only takeaway with implications for the recent flurry of file sharing lawsuits. While there has been a huge number of claims filed in Canada (with some surprisingly large settlements), the Supreme Court acknowledged important limitations in notice claims, noting that merely being associated with an IP address is not conclusive of guilt.

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September 18, 2018 2 comments News
Supreme Court of Canada Chamber by Sean_Marshall (CC BY-NC 2.0) https://flic.kr/p/Fb3RmX

Notice the Difference?: Supreme Court Rules ISPs Can Be Compensated for Copyright Costs

Policy makers have long struggled to strike a fair balance in crafting rules to address allegations of copyright infringement on the Internet. Copyright owners want to stop infringement and the right to pursue damages, Internet subscribers want their privacy and freedom of expression rights preserved in the face of unproven allegations, and Internet providers want to maintain their neutrality by resolving the disputes expeditiously and inexpensively.

My Globe and Mail op-ed notes that the Canadian system for online infringement was formally established in 2012 and came into effect in 2015. The so-called “notice-and-notice” approach grants rights holders the ability to send notifications of alleged infringement to Internet providers, who are required by law to forward the notices to the relevant subscriber and to preserve the data in the event of future legal action. The system does not prevent rights holders from pursuing additional legal remedies, but Internet providers cannot reveal the identity of their subscribers without a court order.

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September 17, 2018 3 comments Columns
Secretary Pompeo Meets With Canadian Foreign Minister Freeland by US Department of State, US government work, https://flic.kr/p/24iZVEm

Compromising on Culture?: Why a Blanket Culture Exception in NAFTA is Unnecessary

As the NAFTA negotiations continue to inch along, one of the remaining contentious issues is the inclusion of a full cultural exception that would largely exclude the Canadian culture industries from the ambit of the agreement. The government has not been shy about speaking out against compromising on culture, noting the perceived risks of provisions that might permit foreign ownership of media organizations. Indeed, the culture issue has attracted considerable attention, with coverage pointing to media ownership rules and simultaneous substitution policies as hot button concerns. Yet as cultural groups cheer on the government’s insistence that cultural policy should be taken off the NAFTA table, the reality is that there remains plenty of room for compromise. This post focuses on three of the biggest issues: foreign ownership, simultaneous substitution, and the TPP culture exceptions.

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September 13, 2018 2 comments News
https://web.archive.org/web/20180830172416/https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/august/modernizing-nafta-be-21st-century

Is Copyright Term Extension Still in Play in the New NAFTA?

As Canadian NAFTA negotiations continue in the aftermath of a U.S.-Mexico agreement on a trade deal, the inclusion of a mandated copyright term remains a bit of mystery. The U.S. has long been focused on getting Canada to extend the term of copyright beyond the international treaty standard of life of the author plus 50 years and seems likely to want to do so here. If so, the cost will be significant, locking down works from the public domain for decades and potentially increasing educational costs by millions of dollars. The U.S. fact sheets on the deal have undergone regular changes which suggests that the issue may still be in play. The original fact sheet issued last week described the copyright term provision as follows:

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September 4, 2018 5 comments News
Foreign Minister Freeland, U.S. Trade Representative Lighthizer and Mexican Ministry of Economy Guajardo Participate in the Fourth Round of NAFTA Negotiations by US Department of State, US government work, https://flic.kr/p/Zyj1pK

Crunch Time in the NAFTA Negotiations: What’s at Play for Canada on Digital Policy

As the NAFTA negotiations hit a possible home stretch this week, the focal point has been primarily on issues such as dispute resolution, the dairy sector, and the auto industry. However, the digital policy issues will have huge implications for Canada and the outline of the agreement between the U.S. and Mexico suggests that Canada is facing considerable pressure to agree to changes to our copyright, patent, IP enforcement, and digital policy rules, contrary to our preferred negotiation approach.

The U.S. appears to be pushing for a TPP+ approach – the TPP provisions plus some additional changes it did not get as part of those negotiations. This is notable since Canadian authorities admitted that the TPP went far beyond any previous Canadian free trade agreement. The Canadian starting point is presumably the CPTPP,  the revised TPP where Canada successfully argued for the suspension of some of the U.S.-backed provisions. This post outlines five of the biggest issues that are likely at play, though many others such as de minimis rules for shipments that affect online commerce will be closely watched and could ultimately require future reforms.

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August 30, 2018 12 comments News