McCarthy Tétrault LLP / mccarthy.ca 11933209
McCarthy Tétrault Advance™Building Capabilities for Growth
Technology Challenges Law
RUIT Conference 2012: Technology and Innovation in the 21st Century
Barry B. [email protected] 416-601-7949 November 3, 2012
McCarthy Tétrault LLP / mccarthy.ca
Technology and the law
¬ Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (ESA v SOCAN)
¬ Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 (Rogers v SOCAN)
¬ Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (SOCAN v Bell)
¬ Crookes v Newton 2011 SCC 47
¬ National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 (April 2012) (National Rugby v Optus)
¬ The Copyright Modernization Act
211933209
McCarthy Tétrault LLP / mccarthy.ca
Internet as a technological taxi
¬ESA v. SOCAN is a download of a video game a “communication” within the meaning of Section 3(1)(f) of the Copyright Act?
¬The right to “communicate” is connected to the right to perform a work and not the right to reproduce permanent copies of the work.
¬A “download” “is merely an additional, more efficient way to deliver copies of the games to customers. The downloaded copy is identical to copies purchased in stores or shipped to customers by mail, and the game publishers already pay copyright owners reproduction royalties for all of these copying activities.”
¬The “Internet is simply a technological taxi that delivers a durable copy of the same work to the end user”.
¬Use of technological neutrality principle to prevent technology from distorting traditional copyright concepts.
311933209
McCarthy Tétrault LLP / mccarthy.ca
Push/pull and copyright
¬ Rogers v. SOCAN: are on-demand transmissions of music streams as part of online music services communications that are “to the public”?
¬ The term “telecommunication” should be broadly construed so as to apply to communications that do not depend on the types of technology used to effect the communication.
¬ An on-demand communication of a work to members of the public can be a communication that is to the public. The Act applies to push as well as to pull means of transmitting works to the public.
¬ The applicability of the communication to the public right is not dependant on the arbitrary choice of business models.
411933209
McCarthy Tétrault LLP / mccarthy.ca
Previews, fair dealing and user rights
¬ SOCAN v Bell: Can online music providers make previews of music available to potential music purchasers as a fair dealing?
¬ Fair dealing is a “user right”.
¬ The term “research” must be given a large and liberal interpretation and can include users listening to previews to decide whether to purchase music. “Research” is not limited “to creative purposes”. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest.”
¬ “The relevant perspective when considering whether a dealing is for an allowable purpose is that of the user and not the copier.”
511933209
McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
Network PVRs – a search for the copier
¬ National Rugby v Optus: who makes copies of TV shows on a network PVR?
¬ Legality of TV Now service enables a subscriber to have free to air television programmes recorded as and when broadcast and then played back at the time (or times) of the subscriber’s choosing on the subscriber’s compatible Optus mobile device or personal computer.
¬ “We consider that Optus’ role in the making of a copy – ie in capturing the broadcast and then in embodying its images and sounds in the hard disk – is so pervasive that, even though entirely automated, it cannot be disregarded when the “person” who does the act of copying is to be identified.”
¬ “So one comes back to the question of construction raised by the word “make” and its application in the present setting. As we have indicated, Optus not only has solicited subscriber utilisation of its Service, it has also designed and maintained a sophisticated system which can effectuate the making of recordings wanted for viewing by subscribers. For s 101 purposes, it manifestly is involved directly in doing the act of copying. It counts as a maker of copies for the subscriber.”
11536863 6
McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
Links and liability
¬ Crookes v Newton
¬ “A hyperlink, by itself, should never be seen as “publication” of the content to which it refers.”
¬ “It is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content.”
11536863 7
McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
Copyright reform and technology ¬ The Copyright Modernization Act and technology
¬ exceptions to permit format shifting, time shifting, making back-up copies, creating and disseminating UGC works
¬ exceptions for ISPs and search engines
¬ exceptions for encryption research, security testing, and temporary technical computer processes
¬ new right of enablement
¬ protect Technological Protection Measures (TPMs)
11536863 8
McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca
Slides available @ barrysookman.com and mccarthy.ca
11536863 9
.
McCarthy Tétrault LLP / mccarthy.ca
VANCOUVERSuite 1300, 777 Dunsmuir StreetP.O. Box 10424, Pacific CentreVancouver BC V7Y 1K2Tel: 604-643-7100 Fax: 604-643-7900 Toll-Free: 1-877-244-7711
CALGARYSuite 3300, 421 7th Avenue SWCalgary AB T2P 4K9Tel: 403-260-3500 Fax: 403-260-3501 Toll-Free: 1-877-244-7711
TORONTOBox 48, Suite 5300Toronto Dominion TowerToronto ON M5K 1E6Tel: 416-362-1812 Fax: 416-868-0673 Toll-Free: 1-877-244-7711
MONTRÉALSuite 25001000 De La Gauchetière Street WestMontréal QC H3B 0A2Tel: 514-397-4100 Fax: 514-875-6246 Toll-Free: 1-877-244-7711
QUÉBECLe Complexe St-Amable1150, rue de Claire-Fontaine, 7e étageQuébec QC G1R 5G4Tel: 418-521-3000 Fax: 418-521-3099 Toll-Free: 1-877-244-7711
UNITED KINGDOM & EUROPE125 Old Broad Street, 26th FloorLondon EC2N 1ARUNITED KINGDOMTel: +44 (0)20 7786 5700 Fax: +44 (0)20 7786 5702
11933209
