Entertainment.summit.oct 2008

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Emerging and OngoingCanadian Copyright

Issues: EntertainmentIndustries Summit

Barry B. SookmanOctober 22, 2009

[email protected]

McTET2 #3713271 v1


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Pre-amble

to create clear, predictable and fairrules to support creativity andinnovation;

to address opportunities andchallenges that are global in scopefor the creation and use of works;

to adopt coordinated approaches to

copyright protection based oninternationally recognized norms;

to enhance copyright protection byadopting the norms set out in theWCT and WPPT;

to provide rights holders with

recognition, remuneration and theability to assert their rights;

to enhance users access to

copyright works or othersubject-matter;

to enhance the protection ofcopyright through therecognition of technologicalmeasures and other measures,

in a manner that promotesculture and innovation,competition and investment inthe Canadian economy; and

to bolster Canadas ability toparticipate in a knowledgeeconomy driven by innovation

and network connectivityfostered by encouraging the useof digital technologies forresearch and education.


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Implementation Objectives

Copyright reform should not be regarded as a zerosum game.

The Bill should reflect the stated objectives.

The new rights and exceptions should be clearlydrafted.

Bill should follow international best practices. Is a"made-in-Canada" approach appropriate andconsistent with the Governments objectives?


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WIPO IMPLEMENTATION(making available, distribution right, TPMs)

New Rights for Copyright Holders

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Making Available Right

Objective: New rights andprotections are required ifrights holders are to betterreach new markets, adapttheir business models and

combat infringement. Thegovernment considers amaking available right andlegal protection for TMsessential. GovernmentBackgrounder

The proposed amendments onlyapply to sound recordings andperformers performances. Itdoes not apply to works. (s.2.4(1)(a) not amended as in BillC-60.)

Owners of sound recordingsmust file a tariff to be eligible toenforce the making availableright (s.67.1(4) and thecommunication right is a right to

receive equitable remuneration.Is this appropriate to addressonline file sharing?

Is overlapping rightsappropriate?

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Distribution Right

Objective: A "distribution right"would allow creators, andperformers and producers ofworks, to control the distribution oftangible copies of copyright works.This right provides control over theinitial entry of the product into themarketplace, such as in the firstsale of a book or CD. GovernmentBackgrounder

Right applies to a work that canbe put into circulation as a tangibleobject, to sell or otherwise transferownership of the tangible object,as long as the ownership of thattangible object has neverpreviously been transferred withthe authorization of the author inor outside Canada. s.3(j).

The Act is intended to betechnologically neutral? Does theamendment meet this test?

Should it include offers todistribute?

Is the amendment consistent

with international standards?


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77Circumvention of TechnologicalMeasures

Objective: In a digital environment, reproductions areeasily made and disseminated. Copyright regimesmust provide rights holders with the ability to seekremuneration from uses of their works and toauthorize uses that serve their interests. TMs are amechanism to achieve this important copyrightobjective. The bill would make it illegal to circumventor bypass technologies that control access toprotected material. It would also become illegal toprovide, market or import tools designed to enablecircumvention.

Government Backgrounder


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Summary of TPM Provisions

Country Act of

Circumvention-Access ControlTechnological

Measure

Act of

Circumvention-Copyright ControlTechnological

Measure

Circumvention

Tools- AccessControlTechnological

Measure

Circumvention Tools-

Copyright ControlTechnologicalMeasure

Criminal Sanctions

United States Prohibited ( 1201(a)(1))

Not prohibited (byDMCA)

Prohibited ( 1201(a)(2))

Prohibited ( 1201(b)) 1204

EU Copyright

DirectiveProhibited (Art. 6(3);Art. 6(1))

Prohibited (Art. 6(3);Art. 6(1))

Prohibited (Art. 6(3);Art. 6(2))

Prohibited (Art. 6(3),Art. 6(2))

Remedies must beeffective,proportionate anddissuasive. (Art.8)

Canada Prohibited Not Prohibited Prohibited Prohibited Criminal sanctions

Bill C-61 brings Canada in line with the WIPO Treaties and our trading partners laws. Sometechnical amendments needed.


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Accessorial and JointLiability

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Accessorial and Joint Liability

When a widely shared service or product is usedto commit infringement, it may be impossible toenforce rights in the protected work effectivelyagainst all direct infringers, the only practicalalternative being to go against the distributor of

the copying device for secondary liability on atheory of contributory or vicarious infringement.

-U.S. Supreme Court, MGM Studios v. Grokster


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Accessorial and Joint Liability

A developed theory of joint or contributory liabilityexists and has proven effective against Internetpiracy services in civil and common-law countriessuch as the United States, France, Finland,Sweden, Norway, Germany, Spain, theNetherlands, Denmark, Australia, and South Korea.

Australia copyright amendment to authorizationright has been successfully employed against piracythreats. See Universal Music Australia Pty Ltd vSharman License Holdings Ltd[2005] FCA 1242(5 September 2005) and Universal Music Pty Ltd. vCooper[2005] F.C.A. 972 (Aust. F.C.)

Need for Canadian amendments?


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EDUCATIONAL EXCEPTIONS(Distance learning, Digital reproductions, PAM, ILL)

New Exceptions

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13Works Available Through theInternet (PAM)

Objective: The bill contains several provisionsto address concerns from educators andresearchers about reasonable access byallowing schools to use publicly availablematerial that has been legitimately posted onthe Internet by rights holders without anexpectation of compensation.

Government Backgrounder

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14Works Available Through theInternet (PAM)(contd)

It is not an infringement for anyone inthe educational process to do any ofthe following acts for educational ortraining purposes in respect of a workthat is available through the Internet:

a) reproduce it;

b) communicate it to the public bytelecommunication, ifthat public primarily consists ofstudents of the educationalinstitution or other persons actingunder its authority; or

c) perform it in public, if that publicprimarily consists of students ofthe educational institution orother persons acting under itsauthority. s.30.04(1)

Is the exceptionnecessary?

Should it be as broad as itis e.g. applies to all worksincluding books,newspapers, databases,music, movies, games,

computer programs,websites.

Acts are not limited to anyfair dealing.


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The Exception Does Not Apply

If the work or Internet site is protectedby an access control TPM (s.30.04(3)).

If a clearly visible notice and notmerely the copyright symbol prohibitingthat act is posted at the Internet sitewhere the work is posted or on the workitself (s.30.04(4)).

If the educational institution knows orshould have known that the work wasmade available through the Internetwithout the consent of the copyrightowner (s.30.04(5))

Attribution is required.

What is a clearly visiblenotice?

Does the exception complywith Canadas treatycommitments (e.g. Berne)?

What is the requisite amount

of knowledge?

Extra-territorial implications?


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ISPS AND OTHER INTERNETINTERMEDIARIES

New Exceptions

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Exemption for ISPs as Intermediaries

Objective: The government is of the view that thosewho post infringing material should be liable forcopyright infringement and not those who enableaccess to, and use of, the Internet. Thus, to theextent that ISPs are only intermediaries that enable

or facilitate connectivity, the bill clarifies that theyare not liable. By providing this legal clarity for ISPs,this approach will continue to encourage the growthof Internet services in Canada

Government FAQ


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According to IsoHunt

..proper and correct just because they want to sue us,illustrates the importance of ISP safe harbor provisions inthe new bill C-61 for the survival of whole classes ofinternet websites and search engines. Gary Fung,Founder & CEO, isoHunt, www.isohunt.com

isoHunt is a search engine of BitTorrent sites, and oursister sites are indices of direct user contributed .torrentlinks. Gary Fung, IsoHunt.com forums, September 8,2008

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The Network Services Exception (s. 31.1(1))

According to the Government, this

provision is intended to provideprotection for ISPs who act only asintermediaries with a safe harbour tothe extent that they enable Internetconnectivity or facilitatecommunication between users. SeeGovernment FAQs, Q14, June 12,2008; Backgrounder Reforming theCopyright ActJune 12, 2008

Bill C-61 s.31.1(1): A person who,in providing services related to theoperation of the Internet or anotherdigital network, provides any meansfor the telecommunication or thereproduction of a work or othersubject-matter through the Internet

or that other network does not,solely by reason of providing thosemeans, infringe copyright in thatwork or other subject-matter.

The proposed exception is not limited to ISPs or to the

activities of enabling or facilitating connectivity to theInternet.

There is also nothing in the Section that limits it ambit totrue conduit intermediaries whose role is merely to transmitdata on behalf of third persons without knowledge or controlover what is transmitted.

It would apply to any person who provides services related

to the operation of the Internet or another digital networkand who provides any means for the telecommunication orthe reproduction of a work or other subject-matter throughthe Internet.

A person that supplies one or more components of a fileshare service such as an operator of a BitTorrent site couldarguably claim immunity under the currently worded network

services exception.


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The Hosting Services Exception (s. 31.1(4))

According to the Government, this provision is

intended to provide an exception frominfringement for ISPs that host websites forsubscribers. See Government of Canada FactSheet Internet Service Providers: CopyrightLiability(June 2008).

(4) Subject to subsection (5), a person who, forthe purpose of allowing the telecommunication ofa work or other subject-matter through theInternet or another digital network, providesdigital memory in which another person storesthe work or other subject-matter does not, byvirtue of that act alone, infringe copyright in thework or other subject-matter.

(5) Subsection (4) does not apply in respect of awork or other subject-matter if the person

providing the digital memory knows of a decisionof a court of competent jurisdiction to the effectthat the person who has stored the work or othersubject-matter in the digital memory infringescopyright by making the copy of the work orother subject-matter that is stored or by the wayin which he or she uses the work or othersubject-matter.

The proposed exception is not limited to

ISPs or to Internet intermediaries that hostwebsites at the request of subscribers.

The exception applies to any person whoprovides other entities with digital memoryfor the purpose of allowing thetelecommunication of a work or othersubject-matter through the Internet or

another digital network.

The exception could immunize any entitythat makes available any type of networkedconnected server or online site (a digitalmemory) for third parties to store and makeavailable infringing files for file sharingpurposes, e.g. Usenet, Bulletin Boards,Websites, UGC sites.

The exception applies even if the host hasactual knowledge of infringement, unlessthere is a court order.


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The Information Location Tool Exception(s.41.27(1))

According to the Government, this provision isintended to clarify that information location tools,

such as search engines (Google, Yahoo, etc.)would not be liable to pay damages forreproductions made in the course of providingsuch tools, unless they ignore a notice requestingthe removal of alleged infringing material.Government FAQs, Q14, June 12, 2008;Backgrounder Reforming the Copyright ActJune12, 2008

41.27(1) In any proceedings for infringement ofcopyright, the owner of the copyright in a workor other subject-matter is not entitled, against aprovider of an information location tool whomakes a reproduction of the work or othersubject-matter or communicates thatreproduction to the public by telecommunication,to any remedy other than an injunction.

(3) In this section, information location toolmeans any tool that makes it possible to locateinformation that is available through the Internetor another digital network.

(2) Subsection (1) applies only if the provider, inrespect of the work or other subject-matter,

(a) makes and caches the reproduction in anautomated manner for the purpose of providing theinformation location tool;

(b) communicates that reproduction to the public bytelecommunication for the purpose of providing theinformation that has been located by theinformation location tool;

(c) does not modify the reproduction;

(d) complies with any conditions relating to themaking or caching of reproductions of the work orother subject-matter, or to the communication ofthe reproduction to the public bytelecommunication, that were established bywhoever made the work or other subject-matteravailable through the Internet or another digitalnetwork and that lend themselves to automatedreading and execution;

(e) does not interfere with the lawful use oftechnology to obtain data on the use of the work orother subject-matter; and

(f) has not received a notice of claimedinfringement relating to the work or other subject-matter that complies with subsection 41.25(2).


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The Information Location Tool Exception (s. 41.27(1))

The proposed exception would apply to any entity that makes it possible tolocate information that is available through the Internet or another digitalnetwork.

The exception would permit caching, making of reproductions, andcommunications to the public with virtually no restrictions to the fairness orincidental nature of such activities.

Simply being a provider of some searching or indexing capability would enablethat person to create a database of copyrighted materials and transmit themto the public.

As drafted, the exception could be used as a safe harbour for pirate servicesthat are currently the subject of litigation by content owners around the world.The exception could apply to p2p file-sharing services, BitTorrent sites andsoftware providers that enable individuals to locate and obtain copies of

infringing files. It would also enable website operators to automatically make and cache copies

of third party content, provide an indexing and search capability to locatedesired files, and to transmit those files to members of the public.

The exception is not limited to innocent intermediaries.

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CHANGES TO STATUTORYDAMAGES

New Exceptions

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Statutory Damage Limits

A defendant who is an individual is liablefor statutory damages of $500 in respectof all the defendants infringements thatwere done for the defendants privatepurposes and that are involved in theproceedings. s.38.1(1.1).

If a copyright owner has made an electionin respect of such a defendant, no othercopyright owner may elect statutorydamages in respect of that defendant forthe defendants infringements that weredone for the defendants private purposesbefore the institution of the proceedings inwhich the election was made.

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Very close tocompulsorylicense in effect?

Could it impactdamagesavailable againstindividuals?


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Emerging and OngoingCanadian CopyrightIssues: EntertainmentIndustries Summit

Barry B. SookmanOctober 22, 2009

[email protected]

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