Over the past couple of days, there has been mounting attention on the application of Quebec language laws to a Facebook page. The issue arose when the OQLF advised a Chelsea boutique that they had received a complaint about its English-only Facebook page. While many are reacting with alarm, the reality is that Quebec’s language enforcement body has applied the law to websites for many years.
Complaints about the issue date back at least 15 years, when a complaint was filed against an English-only photography website. While a Montreal lawyer claims the issue has not been challenged in court, the issue was in fact litigated in Reid v. Court of Quebec, a case involving the online sale of maple syrup. The Quebec Superior Court upheld the application of the language laws to the Internet ruling that the law applied to commercial publications and that included websites. Further complaints seem to pop up every few years (presumably because the system is complaints-based), but the legal analysis is pretty straightforward. The law applies to all commercial publications – including websites – involving a business with a Quebec location or address that is selling goods or services. The location of the server or even the intended audience is irrelevant – what matters is the real-space location of the business.
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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 minimis copying.
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 Board says 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.
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The Canadian media featured extensive coverage over the weekend of the federal court decision that opens the door to TekSavvy disclosing the names and addresses of thousands of subscribers and establishes new safeguards against copyright trolling in Canada. While some focused on the copyright trolling issues, others emphasized the disclosure of the names and the possibility of lawsuits.
What comes next is anyone’s guess – Voltage indicates that it plans to pursue the case – but the economics of suing thousands of Canadians for downloading a movie for personal purposes may not make sense given current Canadian law. This post examines the law and estimated costs of pursuing file sharing litigation against individuals, concluding that the combination of copyright reform, the Voltage decision, likely damage awards, and litigation costs will force would-be plaintiffs to reconsider their strategies.
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Appeared 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, […]
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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 Internet.”
So how did the court strike the balance?
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