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

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sensing the growing public pressure, provided a response in which it claimed that the leaked February 2012 text was outdated and that the Internet provider provisions in CETA (which had mirrored ACTA) had been changed.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The draft text of CETA of February 2012 (on which the press comments are based) is outdated and reflects thinking at a time before the ACTA vote in EP.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 In the meantime, negotiations have evolved and the February 2012 text no longer represents the current state of the negotiations.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

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

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

Canada Excluded From Next Round of TPP Negotiations

When the U.S. invited Canada to join the Trans Pacific Partnership negotiations last month, there was an agreed upon delay to allow it to complete a domestic approval process. As part of that delay, Canada was to be excluded from the negotiations during the approval period and bound by any […]

July 16, 2012 — 19 comments — News