Transcript Strict Liability & Vicarious Liability

The Reasonable Expectation of
the Consumer on the Permitted
Scope of Use of Digital Music
Pascale Chapdelaine
September 18, 2009
The IP Bargain: Consumer Perspectives
in a Global Economy, an IP Osgoode Conference
Background
The CCA is almost silent about users and
consumers
Copyright law is copyright holder centric
International Developments confirm trend
Background
Copyright holders and consumers in
independent spheres….until recently
Copyright, new technology…and
consumers
Sony Corp. (1984); MP3.com (2000);
Napster (2001); Grokster (2005)
Copyright holders and consumers
getting closer and closer
Music recording industry took action against 30,000
individuals
Average settlements between $3,000 and $12,000
Joel Tenenbaum refused to settle
If Joel found to have willfully infringed copyright, could
face $1,000,000 for downloading seven songs
(under Digital Theft Deterrence Act).
Support by Professor Charles Nessen and Harvard Law
Students
Source:
Consumers and Copyright holders
Music Recording Industry not yet in
Canadians living rooms….
Techno-empowerment of consumers
and copyright holders
Standard form agreements
Consumers as specific group
of copyright users
Individual
Non commercial purpose
Specific sphere of interests and
values
Imbalance in bargaining power,
information, choice
How adequate are current copyright, contract
and consumer laws to address interests of this
group ?
The “balance” in the CCA
• Théberge v. Gallerie d’art du petit
Champlain Inc. [2002] 2 S.C.R. 336
• CCH Canadian Ltd. v. Law Society of
Upper Canada, [2004] 1 S.C.R. 339,
2004 SCC 13.
• Socan v. Canadian Association of
Internet Providers, [2004] S.C.J. No. 44
(S.C.C.)
Copyright
Exclusive rights are “act based”
Creation of statute yet CCA an
“incomplete code”
Copyright heavy reliance on contract
as vehicle to grant access to works
Outer limits of Copyright
Pertinent to digital music
Non substantial part (s. 3 CCA)
Private Copying (Part VIII CCA)
Fair Dealing (s. 29 CCA)
Non Substantial part (s. 3 CCA)
Users allowed to produce, reproduce,… non
substantial part of digital music without
authorization of copyright holder
Ringtone substantial part of a musical work
Public Performance of Musical Works, Re Copyright
Board decision 2006 (“Ring tone” tariff)
Previews substantial part of musical work
Little practical use for consumer of digital
music
Private Copying (Part VIII CCA)
Allows consumers to reproduce a
musical work onto an “audio recording
medium” for the private use of the
person who makes the copy.
Levy on blank audio recording medium
and right of remuneration to various
copyright holders
Private Copying (Part VIII CCA)
Does not apply to copies of digital music on a MP3
player
Canadian Private Copying Collective v. Canadian Storage
Media Alliance 2004 FCA 424
Does not apply to reproduction with purpose to sell,
rent out, distribute, with or without commercial
purpose, communicating to the public by
telecommunication
Very fragmented right for the consumer
Private Copying under scrutiny
technological protection measures
new trends of digital music use
Fair Dealing for purpose of research
or Private Study (s. 29 CCA)
SCC in CCH:
Fair dealing provisions to be interpreted
broadly
Fair dealing provisions can always be invoked
even if other exceptions available
Non exhaustive list of criteria on what is “fair”
Fair Dealing for purpose of Research or
Private Study (s. 29 CCA)
Digital music use for research and private
study ?
Public Performance of Musical Works, Re Copyright
Board, 2007 – (Socan Tariff 22A)
Offering music preview is fair dealing for the purpose
of research
The Consumer and Digital
Music under the CCA
Fragmented, limited and unclear rights
CCH affirmation of “user rights” and call to
broad interpretation, opens up new avenues,
yet test unclear, especially for consumers
The Consumer and Digital
Music under the CCA
Scope of permitted uses prerogative of
copyright holder
In the hands of “Freedom” of contract
Tightened by copyright holders technology
controls
Digital Music Terms of Use
Amazon.com
myplay.com
Digital Music Terms of Use
Personal, non commercial use
No right to share
Limited copies and downloads
Limited copying devices
No derivative works
unlimited duration or tied to subscription
Notification of tracking measures of use
Right to take action if outside permitted use
Consumer Surveys
Digital Music Usage and DRM, Results from
a European Consumer Survey, INDICARE
2005
Consumer habits:
80% of all digital music users have burned their
own mixes to CD over the past 6 months
73% of the digital music users have shared
music files with family members and friends
over past 6 months
60% have shared music files with other people
Digital Music Usage and DRM, Results from
a European Consumer Survey, INDICARE
2005
Usage preferences
84 % state that transferability important
to them
75% want to share with family and
friends
45 % afraid files unusable in the future
24 % want to resell “purchased” files
Digital Music Usage and DRM, Results from
a European Consumer Survey, INDICARE
2005
Usage rights
55 % users online music stores did not know
what they were allowed to do with downloads
59% P2P network users did not know what
they were allowed to do with the music
downloads
63% of all digital music users never heard of
DRM
57 % of digital users do not care or know
about copyright
2007/8 Rockbridge National
Technology Readiness Survey (NTRS)
Defining Consumers’
Interests to Enjoyment of
Digital Music
Situating the Consumer
The Passive or Active Consumer
The “Consumer-as-Participant”
use of works for self-consumption, for
their personal benefit alone.
taking part in creative process through
“meaning-making” processes
Niva Elkin-Koren, “Making Room for the
Consumer under the DMCA” (2007)
Defining the Consumer
Interests
Greater need of protection with
copyright works than with
ordinary goods
Liberty and Autonomy
communicate, share, copy, “creative
self-expression” within defined circles
Privacy BMG Canada Inc. v. John Doe FCA 2005 193
Participation in innovation process
Defining “Private Purpose”
Non commercial exploitation v. non commercial
setting
Not limited to own personal use
Private sphere
can include in work setting
could include “closed” social networks
Include derivative works and “acts of miniauthorship” (J. Liu)
Defining “Private Purpose”
Would probably not include
some peer to peer networks
Tension zones:
Act vs. purpose driven scope of
Copyright
Broad definitions:
“Communication to the public”
“Performance in public”
NORMATIVE VALUE OF “REASONABLE
EXPECTATION” TO ARTICULATE
CONSUMER INTERESTS IN DIGITAL
MUSIC
Consumers reasonable
expectation
Contract interpretation tool
No terms: ex. CDs
Terms unclear
ex: Privacy and technological measures
Sale of goods warranties
Quality
purpose for which good/service was intended
Reinforced by Consumer Protection Laws
Consumers’ Reasonable
Expectations
Shaped by:
Contract terms
Custom
Surrounding technology
copying devices
networks
Copyright; Private Copying Regime
Reasonable expectations:
warranties of quality and intended
use
Defective CD or service
Guilbert v. Sony BMG Musique (Canada) inc. [2007] R.J.Q. 983
(Que. S.C.)
Scope of use of digital music
interoperability issues
use on multiple devices
contrary to fair dealing or private copying
Auchan and Warner Music French cases
Existence of technological measures and privacy
Guilbert v. Sony BMG Musique (Canada) inc. [2007] R.J.Q. 983
(Que. S.C.)
Warranty of quality and intended
use: scope of use of digital music
Françoise M. / EMI France, Auchan France Tribunal de Grande
Instance de Nanterre 6ème chambre, Jugement du 2 septembre
2003, available at : http://www.legalis.net/jurisprudence-decision;
Christophe R., UFC Que Choisir / Warner Music France, Fnac,
Tribunal de grande instance de Paris 5ème chambre, 1ère section
Jugement du 10 janvier 2006 available at :
http://www.legalis.net/jurisprudence-decision; reversed on appeal:
Cour d’appel de Paris 4ème chambre, section A Arrêt du 20 juin
2007 Fnac Paris / UFC Que Choisir et autres available at :
http://www.legalis.net/jurisprudence-decision; confirmed by Cour de
cassation 1ère chambre civile 27 novembre 2008 UFC Que Choisir /
Fnac, Warner music France, available at:
http://www.legalis.net/jurisprudence-decision
Consumers reasonable
expectations - Shortcomings
As contract interpretation tool
How to define it ?
Largely dictated by non negotiated contract
terms
Custom and Expectations shaped by
copyright holder offering
Lack of clarity of copyright law on permitted
scope of use as anihilating any expectation
Consumers Reasonable
Expectations - Merits
Flexible and evolutive
“Reasonableness” element
In Copyright Policy setting:
“Ground” consumer Interests in copyright
materials and counter weight to copyright
holder centric regime
Judiciary:
to assess fair dealing or other copyright
exceptions to copyright infringement
Clarifying users rights
Information disclosure requirements in
CCA for copyright holders, of users
rights similar to consumer protection
law approach
Advantageous to users, authors and
copyright holders
Would stimulate “best practices” and
guidelines
Potential for competition between scope of
usage
Copyright exclusive rights in
the digital age
Articulating copyright objectives:
incentive to innovate and disseminate
acknowledging stakeholders interests
users as active participants in
innovation process
More “purpose” and less “act” driven
incentive driven commercial exploitation right
“Private purpose” right beyond private
copying regime
Clarity and simplicity