Michael Geist

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Copyright Board Begins to Life After Supreme Court Rulings

Barry Sookman reports that the Copyright Board of Canada has issued an order to parties in the satellite radio services case to address the implications of the recent Supreme Court of Canada copyright decisions. It notes that “given the reasons of the majority in Alberta (Education) v. Canadian Copyright Licensing […]

July 23, 2012 — 2 comments — News

USTR Launches Consultation on Canada’s Entry to TPP

The USTR has launched a public consultation on Canada’s proposed entry to the Trans Pacific Partnership talks.The deadline for comments is September 4, 2012. A hearing is scheduled for September 24, 2012.

July 23, 2012 — Comments are Disabled — News

Supreme Court Shakes the Foundations of Canadian Copyright Law

I have posted several pieces on the recent Supreme Court of Canada copyright decisions (an immediate overview, a piece on why Canada has shifted to fair use, an analysis of the inclusion of a technological neutrality principle, and a discussion on the implication for Access Copyright). My weekly technology law column (Toronto Star version, homepage version) also focused on the decision. It noted that copyright cases only reach the Supreme Court of Canada once every few years, ensuring that each case is carefully parsed and analyzed. Last week, the court issued rulings on five copyright cases in a single day, an unprecedented tally that will keep copyright experts busy for many months to come.

While the initial coverage unsurprisingly focused on the specific outcomes for the litigants, including wins for Apple (no fees for song previews on services such as iTunes), the entertainment software industry (no additional payment for music included in downloaded video games), and the education community (copying materials for instructional purposes may qualify as fair dealing), the bigger story are three broad principles that lie at the heart of the court’s decisions.

July 20, 2012 — 19 comments — Columns

Why the European Commission’s Assurances on ACTA & CETA Don’t Add Up

Last week’s revelations that the Canada – EU Trade Agreement’s intellectual property chapter draws heavily from the Anti-Counterfeiting Trade Agreement sparked widespread media coverage across Europe (initial post with links to coverage, more here, here, here, here, here, here, and here). After initially refusing to comment, the European Commission, clearly sensing the growing public pressure, provided a response in which it claimed that the leaked February 2012 text was outdated and that the Internet provider provisions in CETA (which had mirrored ACTA) had been changed. While the initial response came via Twitter, a more detailed statement was circulated to many Members of the European Parliament and others. The statement included the following:

All FTAs negotiated by the EU, including CETA, contain chapters on IPR enforcement. They are just one aspect of a comprehensive approach. CETA is not different.
The Commission fully respects the vote of the EP of the European Parliament on ACTA and the IPR related text of CETA is being reviewed in order to remove or adapt elements that are considered problematic in the opinions and reports adopted by European Parliament.
The draft text of CETA of February 2012 (on which the press comments are based) is outdated and reflects thinking at a time before the ACTA vote in EP. It should come as no surprise that certain provision resemble ACTA, which both Canada and the EU had negotiated. In the meantime, negotiations have evolved and the February 2012 text no longer represents the current state of the negotiations.
For instance, even before the ACTA vote in the EP, the provisions on IPR enforcement on the internet had already evolved. For instance, Articles 27.3 and 27.4 of ACTA, which are considered problematic in the EP, are no longer reflected in CETA.
The final result of the IPR chapter of CETA is likely to be very close to the IPR chapter of the Korea FTA, which was endorsed by a broad majority in the Parliament, and which has been in force for over a year now.

The European Commission statement not only confirms some changes in CETA, but suggests that the final version will look like the EU – South Korea Free Trade Agreement. This disclosure raises its own set of concerns for both Europeans and Canadians. This posts outlines six major areas of concern given the current uncertainty with CETA, its linkages to ACTA, and the influence of the EU – South Korea FTA.

July 19, 2012 — 6 comments — News

Why the Supreme Court’s Copyright Decisions Eviscerate Access Copyright’s Business Model

The implications of last week’s Supreme Court of Canada copyright decisions seem readily apparent to just about everybody – other than Access Copyright. There have been numerous posts analyzing the decisions (here, here, here, and here), all of which recognize the expansion of fair dealing (my posts on fair dealing as fair use and on technological neutrality). Yet in a release posted hours after losing at Canada’s highest court, the copyright collective implausibly claimed that the decision “will have a limited impact on the importance of the Access Copyright licence to the education community” and that it “leaves copyright licensing in the education sector alive and well.” To support the claim, Executive Director Maureen Cavan argued that the specific case only covered about seven percent of the copying done in K-12 schools. The Access Copyright claims were echoed in a release from The Writers’ Union of Canada.

The reaction was reminiscent of the last time Access Copyright lost big at the Supreme Court. Immediately after the CCH decision was issued in 2004, Access Copyright’s release stated that “this ruling does not change the fact that most copying of copyright protected works does not fall under fair dealing. The Supreme Court stated definitively that copyright does exist in original works, and that is why organizations must sign an Access Copyright licence or risk breaking the law.”

The strategy of claiming that little has changed may have worked with some institutions after CCH, but it is very unlikely to do so this time. It is true that the specific case involved a small percentage of overall K-12 school copying, but the court’s fair dealing analysis applies to all copying, not just the copies at issue. In this specific case, the court ruled the Copyright Board’s analysis of the fair dealing six factor test was unreasonable, an unmistakable signal to reverse its ruling. More broadly, the decision eviscerates the current Access Copyright business model that is heavily reliant on educational revenues. The decision does not create a free-for-all – schools will continue to spend hundreds of millions of dollars every year on books, database licences, and transactional licences – but the need for an additional Access Copyright licence for schools at all levels is now unquestionably in doubt.

Just how badly did Access Copyright fare at the Supreme Court?

July 17, 2012 — 25 comments — News