Post Tagged with: "copyright"

Supreme Court Shakes the Foundations of Canadian Copyright Law

Appeared in the Toronto Star on July 15, 2012 as Supreme Court Shakes the Foundations of Copyright Law 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 […]

July 20, 2012 — Comments are Disabled — Columns Archive

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sensing the growing public pressure, provided a response in which it claimed that the leaked February 2012 text was outdated and that the Internet provider provisions in CETA (which had mirrored ACTA) had been changed.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The draft text of CETA of February 2012 (on which the press comments are based) is outdated and reflects thinking at a time before the ACTA vote in EP.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 In the meantime, negotiations have evolved and the February 2012 text no longer represents the current state of the negotiations.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

Beyond Users’ Rights: Supreme Court Entrenches Technological Neutrality as a New Copyright Principle

Last week, I posted on the significance of the Supreme Court of Canada’s five copyright decisions with an emphasis on the shift from fair dealing to fair use. This week, I have several additional posts planned including one on the implications for Access Copyright as well as a broader examination of how the court has elevated users’ rights within Canadian copyright law. This post focuses on the second major development in the cases: the articulation of technological neutrality as a foundational principle of Canadian copyright. The technological neutrality principle could have an enormous long-term impact on Canadian copyright, posing a threat to some copyright collective tariff proposals and to the newly enacted digital lock rules.

The technological neutrality principle is discussed in several cases, but gets its most important airing in the Entertainment Software Association of Canada v. SOCAN decision. The majority of the court states:

July 16, 2012 — 11 comments — News

Has Canada Effectively Shifted from Fair Dealing to Fair Use?

The reverberations from yesterday’s Supreme Court of Canada copyright decisions will be felt for years (good coverage of the decisions include posts from Mark Hayes, IP Osgoode, Barry Sookman, Howard Knopf, the Toronto Star, and the CBC). While much of the coverage has focused on the music downloading issue, the continued expansion of fair dealing is perhaps the most significant development.

I focused on the court’s expansive view of fair dealing in an earlier post, but I think it is worth digging a bit deeper to ask whether Canada has now effectively shifted from fair dealing to fair use. The Copyright Act obviously still speaks of fair dealing, but the expansion by the courts and the legislature may have effectively rendered it very close to fair use.

July 13, 2012 — 7 comments — News

Supreme Court of Canada Stands Up For Fair Dealing in Stunning Sweep of Cases

The Supreme Court of Canada issued its much anticipated rulings in the five copyright cases (ESAC v. SOCAN, Rogers v. SOCAN, SOCAN v. Bell – song previews, Alberta v. Access Copyright, Re:Sound) it heard last December (my coverage of the two days of hearings here and here). It will obviously take some time to digest these decisions, but the clear takeaway is that the court has delivered an undisputed win for fair dealing that has positive implications for education and innovation, while striking a serious blow to copyright collectives such as Access Copyright.

Led by Justice Abella, the court has reaffirmed that fair dealing is a user’s right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies. This post will provide some quick key points in the Access Copyright and song previews decisions.

The Access Copyright case has enormous implications for education and copyright in Canada. With the court’s strong endorsement of fair dealing in the classroom, it completely eviscerates much of Access Copyright’s business model and calls into question the value of the model licence signed by many Canadian universities. Writing for the majority, Abella adopts several crucial findings, not the least of which is that fair dealing is a user’s right. Piece by piece, Abella tears apart Access Copyright’s claims. First, she says the attempt by Access Copyright to separate teacher copies for students and students making their own copies should be rejected. The court states:

July 12, 2012 — 78 comments — News