Tuesday March 04, 2014
As Meera Nair noted last week, today marks the tenth anniversary the Supreme Court of Canada's landmark CCH Canadian v. Law Society of Upper Canada.
A decade after its release, the case has grown in stature as the
leading the users' rights copyright decision by a high court in the world.
Writing for a unanimous court, Chief Justice McLachlin stated:
the fair dealing exception is perhaps more properly understood as an
integral part of the Copyright Act than simply a defence. Any act
falling within the fair dealing exception will not be an infringement of
copyright. The fair dealing exception, like other exceptions in the
Copyright Act, is a user's right. In order to maintain the proper
balance between the rights of a copyright owner and users' interests, it
must not be interpreted restrictively. As Professor Vaver, supra, has
explained, at p. 171: 'User rights are not just loopholes. Both owner
rights and user rights should therefore be given the fair and balanced
reading that befits remedial legislation.'
The articulation of fair dealing as a users' right represented a
remarkable shift, emphasizing the need for a copyright balance between
the rights of creators and the rights of users. While this approach
unquestionably strengthened fair dealing, the immediate reaction to the
CCH was somewhat mixed.
TagsShareTuesday March 04, 2014
Wednesday February 26, 2014
The Copyright Board of Canada has issued a series of questions to Access Copyright in the tariff proceedings involving Canadian
post-secondary institutions. Once Canada universities and colleges quit
the proceedings, the Board was left to play a more aggressive role in
questioning Access Copyright's claims. Its questions focus on several
important issues (discussed further below), but perhaps most noteworthy
is its preliminary conclusion on what constitutes insubstantial or de
In establishing the scope of copyright rights, the law
refers to "the sole right to produce or reproduce the work or any
substantial part thereof." Since the rights only arise once the full
work or a substantial part of it are used, anything less than that - ie.
an insubstantial part - is not subject to the rights identified in the
Copyright Act. While some rights holders have argued that the standard
for a substantial is very low (the National Post recently argued
in a case that "even the reproduction of a small number of words in a
newspaper article can be an impermissible reproduction"), the Copyright
that its preliminary view is that "copying of a few pages or a small
percentage from a book that is not a collection of short works, such as
poems, is not substantial." With respect to the tariff application, the
Board says this excludes more than 2.5% of coursepack copying.
TagsShareWednesday February 26, 2014
Saturday February 22, 2014
in the Toronto Star on February 22, 2014 as Canadian Court Ruling in
Teksavvy File Sharing Case a Blow to Copyright Trolls
The outbreak of copyright trolling cases in the United States and
Britain in recent years has sparked considerable anger from courts,
Internet providers, and subscribers. These cases, which typically
involve sending thousands of legal letters alleging copyright
infringement and demanding thousands of dollars to settle, rely on
ill-informed and frightened subscribers, who would rather pay the
settlement than fight in court.
Canada was largely spared these cases until 2012, when Voltage Pictures,
a U.S. film company, filed a lawsuit demanding that TekSavvy, a leading
independent Internet provider, disclose the names and addresses of
thousands of its subscribers who it claimed infringement its copyright.
TekSavvy did not formally oppose the request, but it did ensure that its
subscribers were informed about the lawsuit and it supported an
intervention from the Canadian Internet Policy and Public Interest
Clinic, a technology law clinic, that brought the privacy and copyright
trolling concerns to the court’s attention (I sit on the CIPPIC advisory
The federal court issued its much-anticipated decision on Thursday,
granting Voltage’s request for the subscriber names, but adding numerous
safeguards designed to discourage copyright trolling lawsuits in
Canada. The safeguards include court oversight of the "demand letter"
that will be sent to subscribers, with a case management judge assigned
to review and approve its contents before being sent to any subscriber.
Moreover, the letter must include a message in bold type that "no Court
has yet made a determination that such subscriber has infringed or is
liable in any way for payment of damages."
While Voltage argued that the privacy issues should not be a concern,
the court was extremely troubled by the prospect of copyright trolling.
It expressed fear of the “mischief” created by compelling Internet
providers to reveal private information about their customers and the
danger of flooding the courts with thousands of cases involving
subscribers who have good defences to the alleged infringement. Further,
the court noted that given recent changes to Canadian copyright law
that create a $5,000 cap on liability for non-commercial infringement,
the damages “may be miniscule compared to the cost, time and effort in
pursuing a claim against the subscriber."
Having cited the dangers of copyright trolling, the court ruled that
where there is compelling evidence of "improper motive" of a plaintiff,
it might consider denying the motion to disclose subscriber names
entirely. Alternatively, if such evidence is unavailable, there are
many safeguards that can be established.
In this case, the court ruled that there was some evidence that Voltage
has been engaged in litigation which may have an improper purposes, but
not enough to deny the motion altogether. The court therefore
established safeguards such as the court oversight over the demand
letter, a requirement that Voltage pay TekSavvy’s legal fees before the
disclosure of subscriber information, and assurances that the
information released by TekSavvy will remain confidential, not be
disclosed to other parties, not be used for other purposes, and not made
available to the general public or the media.
The safeguards are significant, since they ensure the active involvement
of the courts in the sending of demand letters and likely eliminate
unwarranted scare tactics about potential liability.
The big remaining question is whether copyright trolls will now view
Canada as hostile territory. Given the cap on liability that the
government implemented in the last round of copyright reform, court
oversight on sending demand letters, the requirements to compensate
Internet providers for their costs, and the increased expense the court
involvement will create, copyright trolls may wish to look elsewhere as
Canada could prove too costly for such dubious legal tactics.
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at firstname.lastname@example.org or online at www.michaelgeist.ca.
TagsShareSaturday February 22, 2014
Thursday February 20, 2014
The federal court has released its much anticipated decision in Voltage Pictures v. Does,
a case involving demands that TekSavvy, a leading independent ISP,
disclose the identities of roughly 2,000 subscribers alleged to have
downloaded movies without authorization. The case attracted significant
attention for several reasons: it is the first major "copyright troll"
case in Canada involving Internet downloading (the recording industry
previously tried unsuccessfully to sue 29 alleged file sharers), the
government sought to discourage these file sharing lawsuits against
individuals by creating a $5,000 liability cap for non-commercial infringement,
TekSavvy ensured that affected subscribers were made aware of the case
and CIPPIC intervened to ensure the privacy issues were considered by
the court. Copies of all the case documents can be found here.
The court set the tone for the decision by opening with the following quote from a U.S. copyright case:
"the rise of so-called 'copyright trolls' - plaintiffs who file
multitudes of lawsuits solely to extort quick settlements - requires
courts to ensure that the litigation process and their scarce resources
are not being abused."
The court was clearly sensitive to the copyright troll concern, noting
that "given the issues in play the answers require a delicate balancing
of privacy rights versus the rights of copyright holders. This is
especially so in the context of modern day technology and users of the
So how did the court strike the balance?
TagsShareThursday February 20, 2014