Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
Voltage Pictures, which previously engaged in a lengthy court battle to require Canadian ISPs to disclose the names of alleged file sharers, has adopted a new legal strategy. This week, the company filed an unusual application in federal court, seeking certification of a reverse class action against an unknown number of alleged uploaders of five movies using BitTorrent (The Cobbler, Pay the Ghost, Good Kill, Fathers and Daughters, and American Heist). The use of reverse class actions is very rare in Canada (only a few have been reported). There were attempts to use the mechanism in copyright claims in the U.S. several years ago without success.
The Voltage filing seeks certification of the class, a declaration that each member of the class has infringed its copyright, an injunction stopping further infringement, damages, and costs of the legal proceedings. Voltage names as its representative respondent John Doe (linked to a Rogers IP address). It admits that it does not know the names or identifies of any members of its proposed class, but seeks to group anyone in Canada who infringed the copyright on one of the five movies. Voltage does not say how many people it has identified as infringing its copyright. It urges the court to issue an order to stop the infringement and to assess damages to be paid by each person.
As the political world was focused on the Liberal government’s inaugural budget last month, Navdeep Bains, the Minister of Innovation, Science and Economic Development, introduced his first bill as minister by quietly moving ahead with plans to reform Canadian copyright law to allow for the ratification of an international treaty devoted to increasing access to copyrighted works for the blind.
The World Intellectual Property Organization’s Marrakesh Treaty expands access for the blind by facilitating the creation and export of works in accessible formats to the more than 300 million blind and visually impaired people around the world. Moreover, the treaty restricts the use of digital locks that can impede access, by permitting the removal of technological restrictions on electronic books for the benefit of the blind and visually impaired.
My weekly technology law column (Toronto Star version, homepage version) notes that the Canadian decision to ratify the Marrakesh Treaty is long overdue. The Conservatives announced plans to do so in last year’s budget but waited to table legislation days before the summer break and the election call. With that bill now dead, the Liberals have rightly moved quickly to revive the issue.
The Eli Lilly claim against Canada for hundreds of millions due to a court decision involving patent utility has attracted considerable attention with fears that the case foreshadows many more corporate lawsuits if the Trans Pacific Partnership becomes a reality. While the Canadian government has raised doubts about the independence of the Canadian Chamber of Commerce intervention in the case, the government must be a bit confused on where the U.S. stands on the issue. Yesterday, the U.S. Trade Representative issued its 2016 report on foreign trade barriers and stated the following on the case:
With respect to pharmaceuticals, the United States continues to have serious concerns about the impact of the patent utility requirements that Canadian courts have adopted.
That is consistent with the Eli Lilly argument, yet last month the U.S. State Department provided its own submission in the case. The U.S. government appears to undermine USTR arguments, seemingly siding with the Canada on the issue. The U.S. submission states each country has the right to determine how it implements the utility requirement, the possibility of revocation of patent rights, and for its patent laws to evolve:
While the media focus has unsurprisingly been on Budget 2016, the government has quietly moved to introduce copyright reform legislation that will allow Canada to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The notice paper for Wednesday, March 23rd includes an Act to amend the Copyright Act with specific provisions on access to copyrighted works or other subject-matter for persons with perceptual disabilities. The decision to implement the Marrakesh Treaty is long-overdue. The Conservatives announced plans to do so in last year’s budget but waited to table legislation days before the summer break and the election call. With that bill now dead, the Liberals have rightly moved quickly to revive the issue.
The treaty expands access for the blind by facilitating the export of works to the more than 300 million blind and visually impaired people around the world, which is needed since only a tiny percentage of books are ever made into accessible formats. Further, it restricts digital locks from impeding access, by permitting the removal of technological restrictions on electronic books for the benefit of the blind and visually impaired. The last bill featured changes to Canada’s digital lock rules that demonstrated (yet again) that the rules are overly restrictive and in need of amendment. The bill should be introduced as soon as Wednesday with analysis to follow.
Earlier this month, Digital Book World posted an article chronicling the discussion of a conference copyright panel featuring Access Copyright counsel Erin Finlay (the article was promoted by Access Copyright). The article caught my attention due to Finlay’s comments about the impact of Canadian copyright on education publishers:
“Another example Finlay used was the case of Broadview Press, which is an independent Canadian publisher that cannot publish anymore.“
The comment prompted me to contact Don LePan, the Broadview Press owner, who has been outspoken critic of the copyright term extension in the TPP. LePan was shocked by the claim which he said was completely inaccurate. He posted a long response on the Digital Book World site, which responded by amending the piece. Kristine Hoang, the journalist who wrote the article, noted that “what I had written was a reference to Erin Finlay’s direct quotes in my recorded transcript where she said ‘Broadview Press cannot publish anymore.’”
The erroneous claim about the state of a Canadian publisher would be surprising if it did not happen so frequently.