Transcript Recent Changes to Copyright Law

Changes to Copyright Law – a Practical Discussion
Herb Regehr and Kwan Loh
Bull, Housser & Tupper LLP
September 25, 2012
Copyright - Basics
• Protects: expression of idea (not idea itself)
• Owner: author is first owner, except for employees
• Term: arises on creation; life of author + 50 years
• Assignment: copyright can only be assigned in
writing
Copyright
Copyright
Literary Works
Dramatic Works
Artistic Works
Musical Works
What’s special about 2012?
• 2012 – a year of change
• Copyright Modernization Act
• Five decisions from the S.C.C.
Copyright Modernization Act
• Bill C-11, or “The 4th time’s the charm”
• 2005, 2008, 2011
• Why “modernize”?
• Commitment to WIPO treaties – signed 1997
• Account for “the digital age”
• Royal Assent – June 29, 2012
Key Topics
•
•
•
•
•
Photographers
Performers and sound recorders
Enabling infringement
Shelters and safe harbors
Technological protective measures and
rights management information (TPD and
RMI)
Key Topics
•
•
•
•
Exceptions for consumers
Exceptions for educational institutions
Limitation on statutory damages
Fair dealing
Photographers
• Now own copyright in their photographs
• subject to agreement to contrary
• Exception to infringement for
commissioner
• Non-commercial purpose
• Revise agreements with photographers?
Performers and Sound Recorders
• Right to make available and distribute
• recognition of Internet as means of
communication
• Performers now have moral rights
• 50 years from publication
• Need for waivers?
Enabling infringement
• Providing a service “primarily for the
purpose of enabling acts of copyright
infringement” = infringement
• Pirate Bay, Isohunt
• Possibility of statutory damages
• avoid need to prove damage
Shelters for ISPs
• As intermediary – not liable for
infringement
•
•
•
•
caching; hosting are OK
only technical modification of material allowed
contrast with “enablers”
unless ISP has knowledge of Court decision
• Who is a “service provider”?
Shelters for ISPs
• Notice and Notice
• copyright owner -> ISP -> alleged infringer
• ISP to retain records on alleged infringer
• Failure to comply
• remedy limited to statutory damages ($5,000
to $10,000)
Shelters for search engines
• “information location tools”
• only technical modification of material allowed
• Only relief that can be claimed is injunctive
– no damages!
• “Don’t be Evil”…
TPMs and RMIs
• TPMs control access to or restrict use of
digital material
• e.g. digital locks, registration/activation keys,
encryption
• can trump copyright exceptions (fair use etc.)
• RMIs manage information about a
copyrighted work and its owner
• e.g. digital watermark
TPMs and RMIs
• Prevent:
• Circumvention of TPMs; tampering with RMIs
• No removal or alteration of RMI without
consent
• injunction, damages, accounting, delivery up,
etc.
Consumer exceptions
• Non-commercial user generated content
•
•
•
•
•
the “YouTube” provision – mash-ups
non-commercial
credit original source
no reason to believe source material infringes
no adverse effect on source
Consumer exceptions
• Reproduction for private purposes and
backup copies
•
•
•
•
original legally obtained / non-infringing
does not circumvent TPM
not given away
used for private purposes / solely for backup
Educational institutions
• Reproduction and display of work for
purpose of education on premises
• Distance education lessons
• Digital reproduction of licensed works
• Use of publicly available works for
education
Limitation on statutory damages
• New: “non-commercial infringement”
• $100 to $5,000 for all infringements
• Contrast to $500 to $20,000 for
commercial infringement
• How will “non-commercial” be defined?
Fair dealing – statutory changes
• New categories:
• education
• parody
• satire
• Broadens fair dealing – but still not the
same as fair use in the U.S.
Fair dealing – statutory changes
• Dealing must be “fair” (CCH)
•
•
•
•
•
•
purpose
character
amount
alternatives
nature of the work
effect of the dealing on the work
Fair dealing – statutory changes
• Parody: close imitation for purposes of
humor or ridicule
• Satire: holding up human practices to
ridicule or scorn through sarcasm, irony or
trenchant wit
• Poor “Bim” – open season?
• Michelin v. CAW (FCTD) – union held liable
• How thick is your corporate “skin”?
Fair dealing – statutory changes
Fair dealing – S.C.C. cases
• SOCAN v. Bell Canada
• music previews (e.g. on iTunes) – fair?
• Yes – previews constitute fair dealing for
research (9-0 decision)
Fair dealing – S.C.C. cases
• SOCAN v. Bell Canada
• liberal interpretation of “research”
• fairness analysis:
previews help consumers’ purchase decision
> effect of previews is to increase sales of the work
> no copies existed after preview heard
> of lower quality
>
Fair dealing – S.C.C. cases
• Alberta v. Access Copyright
• multiple copies of short excerpts of textbooks
as complement to main textbook – fair?
• Yes – “private study” by students (5-4
decision)
Fair dealing – S.C.C. cases
• Alberta v. Access Copyright
• Majority:
• teachers facilitate students’ research and
private study; no ulterior motive
• private study focused on concept of studying;
need not be in isolation
Fair dealing – S.C.C. cases
• Alberta v. Access Copyright
• Majority:
• no reasonable alternative to achieve the same
purpose
• no evidence that decline in textbook sales
resulted from competition with copies
• copying facilitates access to books already
purchased
Fair dealing – S.C.C. cases
• Alberta v. Access Copyright
• Minority:
• teacher’s purpose: to teach students (now
have education as “fair dealing”)
• “private study” = individual study; otherwise
“private” has no meaning
• absence of alternative does not necessarily
make dealing fair
Practical implications
• Unfortunately, there is little certainty
• Those working with photographers and
performers – consider existing agreements
and whether there is need to revise
• Ensure websites are not enabling
infringement
Practical implications
• Set up Notice and Notice procedures
• Re-evaluate litigation (existing and
potential)
• Understand the shelters and exemptions
available to ISPs, search engines, educational
institutions and consumers, and possible
changes re: statutory damages / injunctive
relief
Questions?
Thank you!