Articles by: Michael Geist

The Supreme Court Copyright Hearings, Day One: Fair Dealing Scare Tactics Fall Flat

The Supreme Court of Canada heard three of the five scheduled copyright cases yesterday in the first day of an unprecedented focus on copyright at Canada’s highest court. The hearing drew many of Canada’s top copyright lawyers and featured a court that was highly engaged in the morning session but content to allow the lawyers to make their case with scant interruption in the afternoon. The three cases involved the Entertainment Software Association of Canada (whether downloading a video game involves communication to the public of the music in the game), the large telcos (music downloads), and Bell v. SOCAN (song previews as fair dealing).

There were several notable developments and lines of questioning. First, the fair dealing discussion that dominated the Bell v. SOCAN case would be familiar to anyone who has followed the debate on Bill C-11 as the usual suspects trotted out the usual scare tactics. The arguments included SOCAN likening music previews to ice cream samples (and therefore not worthy of being treated as research for fair dealing purposes), CRIA arguing for a “circumscribed definition of fair dealing”, and CSI claiming that including consumer research within fair dealing could put Canada offside its international obligations.

None of these arguments gained any real traction with the court.

December 7, 2011 — 16 comments — News

The Daily Digital Lock Dissenter, Day 46: Battlegoat Studios

BattleGoat Studios is a Canadian software developer founded in 2000. The company has release several PC games that have won widespread recognition. It has also been outspoken on copyright reform, providing a submission to the C-32 legislative committee that stated the following on digital locks:

The addition of one simple principle to C-32 would make the bill acceptable:

That the circumvention of Technical Protection Measures be permitted for non-infringing uses. This would meet the requirements of the WIPO treaties, and it would properly permit consumers to use their Fair Dealing rights and exemptions. It would still afford protection to content creators and publishers, especially against the “large scale” infringement that Ministers Moore and Clement say are the targets of Copyright Reform.

December 7, 2011 — 3 comments — News

Stop Hiding Behind the Phone Book, Mr. Toews

University of Toronto law professor Lisa Austin has a Globe op-ed on lawful access that highlights the difference between phone book data and Internet data likely captured by the forthcoming legislation.

December 7, 2011 — 2 comments — News

The Daily Digital Lock Dissenter, Day 45: Digital Security Coalition

The Digital Security Coalition was a coalition of leading Canadian digital security companies. The coalition’s mandate was to advocate on behalf of its members and of all Canadians for sound public policies and laws affecting digital security technologies. Members included AEPOS Technologies Corporation, Black Arts Illuminated Inc., Bob Young, Borderware Technologies Inc., Bridon Security & Training Services, Certicom Corp., CMS Consulting Inc., Digital Defence Inc., Elytra Enterprises Inc., Innusec Inc., Klocwork Inc., Priosec, Q1 Labs Inc., Random Knowledge Inc., Borderware Technologies, Rigel Kent Security and Advisory Services, Security Objectives, Technical Security & Intelligence, Titus Labs Inc. Third Brigade Ltd., and VE Networks Inc. The organization’s 2009 national copyright consultation submission included the following on digital locks:

Anti-circumvention rules should not apply in non-infringing circumstances, so they do not inadvertently impede ongoing research and innovation. The risk is in harming emerging Canadian digital security companies, and putting a “liability chill” on research in this area.

December 6, 2011 — Comments are Disabled — News

Copyright in the Balance This Week at the Supreme Court of Canada

For most of the past hundred years, the Supreme Court of Canada heard the occasional copyright case with significant cases popping up once every ten or twenty years. That started to change in 2001 with a big case reaching Canada’s top court every year or two. While that seemed like a busy schedule, it is nothing compared to the coming week, where the court will hear an unprecedented five copyright cases over the course of two packed days.

My weekly technology law column (Toronto Star version, homepage version) notes the cases feature a who’s who of the Canadian copyright and communications world with the Entertainment Software Association of Canada (ESAC), Canadian Recording Industry Association, Apple, Bell Canada, Rogers Communications, and leading copyright collectives such as SOCAN and Access Copyright among the litigants.

The common theme among the cases is that they all originate with the Copyright Board of Canada. Whether the board is asked to establish tariffs for the communication of music or the copying of materials in schools, its decisions have become highly contested and invariably subject to judicial review.

It is possible that the Supreme Court is chiefly interested in the administrative law issues raised by the board rather than substantive copyright questions. Should it choose to wade into the copyright concerns, however, two issues jump out as the key ones.

December 5, 2011 — 3 comments — Columns