The series on why Bill C-18, the Online News Act, is a bad solution in search of a real problem has thus far focused on three issues: the risk to the free flow of information stemming from mandatory compensation for linking, how the bill encourages clickbait and other low quality news given the absence of standards in the definition of “news content”, and the unprecedented government intervention in a sector where independence is essential. Today’s post raises an unlikely issue given that Bill C-18 is the responsibility of Canadian Heritage Minister Pablo Rodriguez, who also has part responsibility for copyright law in Canada. Buried within the bill is Section 24, a short provision with big copyright implications:
For greater certainty, limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process.
What does this mean and why is it in the bill?
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For much of the past two decades, copyright groups have steadfastly sought to deny what the Supreme Court of Canada has repeatedly endorsed, namely that the purpose of Canadian copyright law is to serve the public interest by balancing users’ and authors’ rights. Last week provided the latest episode in the ongoing series as the Court delivered yet another strong affirmation on the importance of copyright balance and the role of technological neutrality, confirming that “[c]opyright law does not exist solely for the benefit of authors.” The decision – SOCAN v. Entertainment Software Association – can read on at least four levels: (1) as a repudiation of SOCAN’s effort to establish a new, additional royalty for the “making available” of music; (2) as a confirmation of the importance of technological neutrality and copyright balance; (3) as an example of the flexibility associated with implementing the WIPO Internet treaties, and (4) as the undeniable entrenchment of Canadian copyright jurisprudence that now features deeply layered precedents on users’ rights.
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The Supreme Court of Canada brought a lengthy legal battle between Access Copyright and York University to an end last week, issuing a unanimous verdict written by retiring Justice Rosalie Abella that resoundingly rejected the copyright collective’s claims that its tariff is mandatory, finding that it had no standing to file a lawsuit for copyright infringement on behalf of its members, and concluding that a lower court fair dealing analysis that favoured Access Copyright was tainted with “a fairness assessment that was over before it began.” The decision removes any doubt that the Supreme Court remains strongly supportive of user’s rights in copyright and vindicates years of educational policy in shifting away from Access Copyright toward alternative means of ensuring compliance with copyright law.
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The Supreme Court of Canada today released its decision in Keatley Surveying v. Teranet, a case that involves the application of the Copyright Act’s crown copyright provision to land surveys registered or deposited in provincial land survey offices. The Government of Ontario argued that crown copyright applies to the surveys. The surveyors argued that it did not and were seeking compensation for their inclusion in a database service run by Teranet under licence from the province. The court ruled in favour of the province, concluding that the surveys are covered by current crown copyright provision.
I’ll address the challenges with that decision in an upcoming post, though it is clear that the majority decision written by Justice Abella is open to legislative reform:
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As Meera Nair noted last week, today marks the tenth anniversary the Supreme Court of Canada’s landmark CCH Canadian v. Law Society of Upper Canada. A decade after its release, the case has grown in stature as the leading the users’ rights copyright decision by a high court in the world. Writing for a unanimous court, Chief Justice McLachlin stated:
the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: ‘User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’
The articulation of fair dealing as a users’ right represented a remarkable shift, emphasizing the need for a copyright balance between the rights of creators and the rights of users. While this approach unquestionably strengthened fair dealing, the immediate reaction to the CCH was somewhat mixed.
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