Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP

Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP

Copyright

Copyright Users’ Rights in Canada Hits Ten: The Tenth Anniversary of the CCH Decision

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.

 

Read more ›

March 4, 2014 2 comments News

Copyright Board of Canada on Copying a Few Pages: It’s Insubstantial and Not Compensable

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. 

Read more ›

February 26, 2014 4 comments News

Canadian Court Ruling in Teksavvy File Sharing Case a Blow to Copyright Trolls

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, […]

Read more ›

February 22, 2014 1 comment Columns Archive

Downloading Decision: Federal Court Establishes New Safeguards on Disclosures in File Sharing Suits

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?

Read more ›

February 20, 2014 2 comments Columns Archive

Downloading Decision: Federal Court Establishes New Safeguards on Disclosures in File Sharing Suits

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?

Read more ›

February 20, 2014 114 comments News