Teresa Scassa - Blog

A recent Federal Court of Appeal decision may have significant implications for the licensing of government data by federal and provincial governments. Nautical Data International Inc v. C-Map USA Inc. is a decision that relates to a lawsuit brought by Nautical Data against the defendant C-Map after C-Map allegedly used data from Canadian Hydrographic Service charts and maps to create its digital charts. Nautical Data took the position that it had acquired the rights, through an exclusive licence, to the raw data that was used in the preparation of the charts, and that these rights were infringed by C-Maps activities. Of course, the two parties were competing in the production of digital navigation products.

Typically, government data licences, whether open or otherwise, assert that the government has rights in the data being licensed. Even the federal government’s recently proposed Open Data Licence covers information that is defined as “information protected by copyright or by database right...”. Leaving aside the imported and inappropriate reference to database rights that do not exist in Canada (see my earlier blog on this point), the government is clearly assuming that it has copyright in the data that is the subject of such licenses. Geobase’s Unrestricted Use Licence Agreement also boldly asserts that “Canada is the owner of or has rights in the data (the Data) addressed by the terms and conditions of this Agreement”. The claims, evident in these open licences, are repeated in more closed licences as well. The licence at issue in the Nautical Data case defined CHS data as “any data owned by Canada and maintained by CHS”.

This idea that data can be “owned” and that copyright law is the vehicle for this ownership is clearly evident in these and in many other licences in both the private and public sectors. This is the case, notwithstanding the fact that in copyright law, there can be no monopoly in facts or data. Copyright will only protect an original expression of facts or data. In a compilation of data, that expression will be manifest in an original selection or arrangement of the data. Even if there is an original selection or arrangement, the protection extends only to that selection or arrangement; it never extends to the underlying data.

While copyright academics have made this point before, it has largely fallen on deaf ears. That is why the comments by the Federal Court of Appeal on this point are so interesting. While the decision is not on the merits of the case (the litigation was about whether summary judgment should be rendered on the issues; the court ruled was that it should not – that the matter should proceed to trial) Justices Nadon and Sharlow state quite plainly that “there can be no copyright in information.”(at para 11). Moreover, they express a certain surprise at the wording of the licence. They state:

Section 6.1 is intended to be a formal acknowledgement of Crown copyright, but it refers to copyright in the CHS Data. Either the parties were unaware that copyright could not subsist in information (which we would not presume), or they understood the phrase “CHS Data” by necessary implication to mean or at least include the CHS Works, even though the definition of “CHS Data” in the licence seems to limit its meaning to “data”. (at para 13)

This is perhaps one of the politest ways possible to criticize the drafting of the licence. Justices Nadon and Sharlow go on to note that the allegation in the licence that the Crown “owns” the data is similarly troublesome. They state: “If it is intended to mean that data can be owned in the same way as property can be owned, then there is some question as to whether it is correct as a matter of law. . . . there is no principle of property law that would preclude anyone from making use of information displayed in a publicly available paper nautical chart, even if the information originated with the Crown or is maintained by the Crown.” (at para 14)

These statements are both interesting and important, and direct attention towards the rather thorny issues around the protection of data in Canada. Data producers, whether in the public or private sectors, have asserted claims to copyright in their data that are far stronger than the law apparently supports. They can do this largely because to challenge such a claim would require engaging in costly and time-consuming litigation which is beyond the reach of ordinary citizens and many businesses as well. It is perhaps the law’s version of Stephen Colbert’s ‘wikiality’ – let’s call it legiality: if you can get enough people to say that certain rights exist, then perhaps for all intents and purposes they do.

Although the copyright issues are not fully litigated in this installment of the Nautical Data saga, the statements by Justices Nadon and Sharlow are a jurisprudential shot across the bows (if you will forgive the nautical reference) of those who claim excessive rights to data in copyright licenses. Whether it is the Nautical Data case that will eventually provide the clarification of the law on these issues or other cases that may be working their way through the system, it really is time for our courts to reinforce the Federal Court of Appeal's clear message regarding over-claiming data licences: there simply is no copyright in facts.

Published in Copyright Law

The legendary Bluenose schooner has become a Nova Scotian – if not a national – icon. It has been featured on our dime since 1937. While the ship is invoked in stories and songs (the original Bluenose sank in 1946), it also lives on in a physical replica, the Bluenose II, which tours Nova Scotia and abroad, and which is a popular attraction. The ship took its name from the term “bluenose” which has been used as a nickname for Nova Scotians since at least the 1700s.

 

Being an icon is not an easy thing – even for a ship. In fact, the Bluenose has been the subject of a number of intellectual property skirmishes in recent years, and is set to be the focus of yet another round of litigation. The first round of intellectual property battles took place in the early 2000’s, when the company retained by the Nova Scotia government to maintain and manage the Bluenose II (which belongs to the province) received official marks protection for the name Bluenose II and a number of related marks. It then sought to enforce its newfound trademark rights against a number of local businesses that used the word Bluenose in their name. An account of this litigation and its outcome can be found in an article I published in the Dalhousie Law Journal in 2004.

 

Now, in 2013, the heirs to the naval architect who designed the original Bluenose schooner have filed an application in the Nova Scotia Supreme Court, arguing that the Province of Nova Scotia and those it hired to restore the Bluenose II have violated the copyright in the naval architectural plans for the ship. It is also argued that the moral rights of the naval architect, the late William James Roué have also been violated. Because Mr. Roué passed away in 1970, the copyright in the plans would only expire in 2020.

 

To understand this argument, it is first necessary to know that the naval architectural plans would constitute drawings, which in turn are protected as artistic works under the Copyright Act. Case law establishes that the copyright in drawings can be infringed when someone builds a three-dimensional object from what is represented in the drawing. Thus the building of a house may infringe the copyright in a set of architectural plans, and the building of a ship, presumably, can also infringe the copyright in its naval architectural drawings. Although the province claims that the work done on the Bluenose II (which was by all accounts in a sad state) was a restoration of an existing, authorized reproduction. The heirs of William J. Roué, by contrast, argue that the existing ship was reverse-engineered; new drawings were done, and an infringing copy of the ship was built. This is the heart of the copyright claim, and it raises interesting issues about the boundary lines between restoration and replication.

 

Moral rights are intended to protect the honour and integrity of the creator of a work and to ensure that he or she is recognized as the author of the work. The heirs appear to argue that the work done on the Bluenose II amounted to the distortion or mutilation of the copyright protected work to the prejudice of the honour or reputation of William J. Roué. In part, it seems that the heirs are arguing that they should have been involved or consulted in the process in order to protect moral rights, arguing that the prejudice to honour or reputation flows from the fact that “the Applicants are unable to ensure that construction of the Vessel will be completed properly and that the vessel called “Bluenose II” will remain an authentic tribute to the original Bluenose and Bluenose II and the creator of the legacy.” (Second Amended Notice of Application, Schedule A, para 37.) The outcome of this claim may depend upon whether the project is considered a restoration or a reconstruction. The Copyright Act provides that “steps taken in good faith to restore or preserve a work” are not, of themselves, a distortion, mutilation or modification of the work (s. 28.2(3)(b)).

 

There is, of course, money involved in this dispute. The government did not seek permission to use the copyright protected drawings to produce a new replica of the Bluenose, nor did it pay royalties to the copyright holders – their position is that they are simply restoring the ship that they own. The heirs, by contrast argue that they have “suffered a lost opportunity. . . to financially benefit from exploitation of the Copyright Work”. (Second Amended Notice of Application, Schedule A, para 44).

 

For its part, the Government of Nova Scotia has challenged the existence of copyright in the naval architectural plans, and whether such copyright actually passed to the applicant heirs. They are also arguing that the “restoration” of the Bluenose II “is not a substantial reproduction of the Bluenose; it is an independent design” (para 17 of the decision on the motion). Finally, the government seems to be arguing that any copyright in the naval architectural drawings does not include rights in the name “Bluenose”. Presumably this means that they assert the right to give this name to any ship they build.

 

It will be interesting to see how this litigation unfolds. The conflict here perhaps reflects what happens when someone’s intellectual property underlies what has become a public icon, and when the owner of a physical and functional object – like a ship – feels that they should not be constrained by intellectual property laws in their dealings with that object.

Published in Copyright Law

Roberta Bell of the Orillia Packet and Times has reported on an art exhibit that was pulled by a local art gallery after concerns were raised about possible copyright infringement. The situation highlights competing public policy concerns.

The artist in question, K.D. Neely, had digitally enhanced a series of photographs she had taken of graffiti from the Raval district in Barcelona. This is not the first time such an issue has arisen in Canada. Similar copyright concerns led to the closing of another exhibit of photographs of graffiti at a Toronto Gallery in 2008.

There is no question that graffiti may constitute an “artistic work” within the meaning of the Copyright Act. It is an interesting and open question whether copyright can be enforced in illegal works, but not all graffiti is illegal. Many such works are commissioned by building owners or municipalities, for example.

The owner of copyright in a graffiti artwork, like any other copyright owner, has a series of rights under the Act which include the right to reproduce or authorize the reproduction of their work. Taking a photograph of all or a substantial part of a graffiti artwork is a reproduction under copyright law. Further, an artist has certain moral rights in relation to their work. These would include the right to be associated with their work by name or pseudonym, or to remain anonymous. The moral right of integrity protects the artist against any distortion, modification, or mutilation of their work to the prejudice of their honour or reputation. In the case of a painting, the prejudice is deemed to have occurred as a result of any mutilation or modification. A photograph that presents only part of a graffiti work, or that adds elements to it might therefore violate the artist’s right of integrity.

Of course, a photographer whose photographs do more than simply reproduce the work of another would also have copyright in their own works. A photographer who makes choices as to what parts of a graffiti work to include in her photo, or how to include other aspects of the urban landscape, for example, is creating a new, copyright protected work. However, it is well established that an artist (or a writer, or musician) cannot incorporate the copyright protected works of others into their own works unless they have permission to do so, or unless they can rely upon a fair dealing defence. The fact that a new work is created is not, on its own, a defence to copyright infringement. Musicians who engage in sampling and appropriation artists have railed against these restrictions on how they create their own works, but copyright law has remained, by and large, unyielding in the face of these arguments. One of the public policy issues raised by this case, therefore, is whether the law gives appropriate latitude to creators to draw upon the works of others in the creation of their own works. When does a new work sufficiently transform the work on which it is based so as to be free from the need to seek permission to use the earlier work?

In Canada, the fair dealing defence to copyright infringement is available only where works are used for certain purposes. These are: research or private study, criticism or comment, news reporting, parody or satire, and education. In addition to being used for one of the specified purposes, any dealing with the work must be fair. The amount of the work used, and the impact of the dealing on the original are both factors that are taken into account in assessing fair dealing. Fair dealing is thus a very context-specific defence, and in many cases it will be frankly rather difficult to know whether a person’s dealing with a work was fair without engaging in costly litigation. There is no general exception to infringement based on arguments that a new work has been created.

Section 32.2 of the Copyright Act sets out a series of “permitted acts” in relation to copyright protected works. In paragraph 32.2(2)(b), the law provides that it is not copyright infringement to “reproduce, in a painting, drawing, engraving, photograph or cinematographic work” either an architectural work or a sculpture that is permanently situated in a public place or building. The provision clearly aims to establish a balance between the rights of copyright holders and the rights of individuals to occupy and relate to the public spaces around them. In other words, if your art work is in a public place, you have to accept that it will be treated as part of the landscape in photographs and other artworks. This is the case whether photos are taken by tourists, artists, or by photographers who sell their works for postcards or calendars.

What the drafters of s. 32.2(2)(b) omitted to address, however, was the issue of paintings that are situated in public spaces. Indeed, graffiti is very much a part of public landscapes. However, it would seem that unlike sculptures in parks or city squares, it cannot be photographed with impunity. This clearly seems to be a gap in the law. Why should graffiti artists be put in a better position than architects or sculptors when it comes to their rights in relation to their works? Why should anyone be inhibited in the taking of photographs of urban streetscapes that contain graffiti?

One answer to these questions might be that graffiti artists are in a different position than architects and sculptors, who are often paid handsomely for their contributions to public space. Although some works of graffiti are commissioned, many are not, and graffiti artists might well object to the capture of their works in photographs that are sold in galleries or reproduced for sale in other contexts without their permission and without compensation. The position is certainly understandable, yet it is also important to keep our public spaces as public as possible. Layering our streetscapes with private rights is almost certainly not in the broader public interest. Yet barring a change in the law or a surprising court interpretation of fair dealing in the context of photos of graffiti, this would seem to be our current situation.

 

Published in Copyright Law

Voltage Pictures LLC has brought a motion in Federal Court seeking a court order that would compel Internet Service Provider Teksavvy Solutions Inc. to disclose the identities of customers using certain IP addresses that have been linked to Internet file-sharing of works in which Voltage owns the copyright. If the court were to order the disclosure, the identified individuals could be sued for copyright infringement by Voltage.

The University of Ottawa’s Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) has brought a motion to intervene in the proceedings. CIPPIC has an established track record in representing the public interest in cases of this kind; they have argued for a balance between individuals’ privacy interests in their online activities and copyright holders interests in previous litigation. The Federal Court has adjourned its hearing of Voltage’s motion in order to consider the issue of CIPPIC’s intervention.

Published in Privacy
Monday, 07 January 2013 10:51

Copyright in Public Documents

Who owns copyright in documents created by private individuals for public purposes? This issue has been raised in at least two recent motions for certification of class action law suits for copyright infringement in the Ontario Superior Court.

The first of these, Waldman v. Thomson Reuters Corporation, resulted in the certification of a class action in February 2012. The plaintiff represents lawyers in private practice who object to the incorporation of court documents authored by lawyers into the defendant’s commercial databases without consent or compensation. The documents at issue include pleadings, notices of motions, affidavits and factums. All of these documents must be filed in court, and become part of a public record during the course of litigation. These court documents are already available to the public through different channels – for example, the public can obtain copies of documents in court records by visiting a court office and by paying the prescribed fees. Some documents are also now made available online by courts. The plaintiff in the class action suit in Waldman objected to the inclusion of these same documents in a commercial, for-profit service.

More recently, the Ontario Supreme Court has refused to certify a class action lawsuit brought by a land surveyor who objected to the inclusion of land survey documents in Ontario’s online land registry system Teranet. Copies of documents in Teranet are available to the public for a fee. The plaintiff in Keatley Surveying Ltd. v. Teranet Inc. argued that the survey documents were works in which copyright subsisted and their inclusion in the database without licence or compensation was a violation of those copyrights.

Both cases raise interesting issues regarding privately authored documents that are drafted as part of public processes, and that must necessarily be accessible to the public as a matter of public policy. Indeed, David Vaver has argued, in an article about the specific issue of copyright in legal documents, that in addition to the usual fair dealing exceptions in the Copyright Act, there may also be arguments around custom and public policy that permit copying without need for permission. Of course, this does not address the issue of whether a private company can commercialize access to the public documents without licence or compensation, and it will be interesting to see the outcome of the Waldman case.

The Keatley motion to certify was rejected by the court because it did not meet any of the criteria for certification of a class action. Among other things, the court was not convinced that there was an identifiable class of similarly affected individuals for the plaintiff to represent. This was because many prominent surveyors and land survey companies were involved in the design and creation of Teranet, and it was not clear whether any other surveyors in Ontario shared the plaintiff’s views on the copyright issues. Further, the court noted that membership in the proposed class would depend on the outcome of the litigation – the proposed class defined itsmembers as those who were holders of copyright in land survey documents, and one of the issues to be determined was whether land surveyors actually had copyright in their documents. If they did not, there could be no member of the class.

Nevertheless, there were some interesting issues raised in the lawsuit, and it is unfortunate that their consideration must be left to another day. For example, Teranet argued that if there is copyright in the land surveys, it lies with the provincial Crown. Crown copyright arises under s. 12 of the Copyright Act where a work is “prepared or published by or under the direction or control of Her Majesty or any government department”. Teranet argued that the provincial laws and regulations governing the creation and use of plans of survey amounted to direction or control over the creation of the works by the Crown. In the words of the court, “Legislation dictates the manner in which the survey is conducted, the content of the plan of survey, the form of the plan, and even details of the plan’s physical appearance, such as the type of paper used, the shape of the paper and the type of ink used.” (at para 102). If this type of direction or control can be said to give rise to Crown copyright, it might have interesting implications for a very broad range of other documents and data prepared under strict rules, standards or guidance – including, perhaps, some legal documents prepared for and submitted to courts.

Teranet also argued that Ontario’s Land Titles Act and the Registry Act both provide that deposited and registered plans are the “property of the Crown” and that this supports a finding of Crown copyright in the documents.. Of course, this same wording could easily be interpreted to refer to property rights in the physical document and not the underlying intangible intellectual property rights. Since copyright is a matter of federal jurisdiction and since s. 12 of the Copyright Act specifically addresses the circumstances in which Crown copyright arises, an interpretation of provincial legislation that creates a new basis for Crown copyright (the deposit and registration of documents) might take the legislation beyond the scope of provincial competence. Nevertheless, the court was of the view that “a compelling case can be made that copyright belongs to the Crown, based on s. 12 of the Copyright Act and the statutory regime that governs plans of survey”( at para 113), although it stopped short of actually drawing this conclusion. This is a complex and interesting question, and one with implications in many other contexts.

While Waldman will not answer these specific questions, it may provide some important insights on issues of fair dealing, custom and public policy (certainly, in the case of land surveys there has been a longstanding practice of providing copies to members of the public for a fee – even prior to the development of Teranet). These arguments, which provide a justification for the exercise by others of the exclusive rights of authors, seem far preferable to arguments that the state has expropriated these same rights through the creation of a registry system.

Thursday, 06 December 2012 10:25

Canada's New Draft Open Government Licence

The federal government has released a new proposed Open Government Licence – Canada (OGL-C) through its Open Data Portal. This licence agreement is not currently in effect; data available through the portal is still licensed under the existing Licence Agreement. The planned release of the OGL-C is in the spring of 2013.

The OGL-C has been a very long time in the drafting, and this draft is most welcome. The government is now seeking feedback on it – at the conclusion of the licence posted online is a fillable form that invites direct comments by the end of January 2013. The Licence Agreement currently in effect is also an open licence, but it suffers from excessive legalese. In contrast to other open licences it sets a tone that might make anyone feel that they should seek legal advice before using the government’s data sets. It contains language such as the following: “Intellectual Property Rights in any modification, translation or further development of the Data or in Value-Added Products made by you in the exercise of your rights under this Agreement, shall vest in you, in such person as you shall decide, or as determined by law.” It is hardly transparent and inviting language.

The proposed OGL-C is much more along the lines of Britain’s Open Government License (OGL), and indeed, the explanatory paragraphs that accompany the licence note that it is based upon this license. Interestingly enough, British Columbia also modified the British OGL, and has been using its modified version of this licence for some time now. The OGL-C and the BC-OGL are similar, but there a number of differences. Some of these are attributable to the distinct licensing parties, other differences may be due to a desire to further simplify the licence, and still others are difficult to understand.

There are several features of the OGL-C which deserve a second look before it becomes operational. First, “information” is defined in the licence as “information protected by copyright or by database right offered for use under the terms of this Licence” [emphasis added]. Since there is no database right in Canada, it makes no sense for this term to be included (it is also used in the definition of “Use”, where it refers to “doing any act which is restricted by copyright or database right”). The reference to database rights is found in the British OGL, since in that jurisdiction there are separate database rights. However, there is simply no reason why reference to rights that do not exist in Canada should be included in a licence meant to be simple, open and accessible. The BC-OGL, adapted to the Canadian context, refers only to copyright.

Like the BC-OGL licence, the OGL-C explicitly excludes any right to use personal information. Unlike the BC-OGL, however, the OGL-C uses the term “personal data” and provides no definition of this term. Since federal data protection laws (both PIPEDA and the Privacy Act) govern the collection, use and disclosure of “personal information”, it makes sense to use this term, rather than “personal data” (which is the British term, used in the British OGL). It should also be noted that the French version of the licence uses “renseignements personnels”, which is normally translated as “personal information” in the federal legislation. Further, it would be helpful to provide (as is the case in the BC-OGL) a definition of “personal information” as this is an important concept, and one which goes well beyond, for example, name and address information. This can be done by reference to the governing privacy statute (as is done in the BC-OGL and the British OGL), or it could also be done through the use of the common portion of most Canadian definitions of personal information: “information about an identifiable individual.”

The licence is also somewhat muddy in its use of two terms – “the Information Provider” and the “Licensor”. The BC OGL uses only “Information Provider” and defines this as Her Majesty the Queen in right of the Province of British Columbia. By contrast the British OGL uses the same structure as the OGL-C, and separately defines the Information Provider and the Licensor. However, the definition of Licensor in the British OGL is much more detailed. It is not clear that this complicated distinction needs to be carried through to the OGL-C. Indeed, the complexity of the British definition of “Licensor” is abandoned in the OGL-C, with the result that under the OGL-C, the “Information Provider” is defined as “the person or organization providing the Information under this Licence” and the “Licensor” is defined as “any Information Provider which has the authority to offer Information under the terms of this Licence”. Defined in this way, using two separate terms seems unnecessary and confusing. Further, there is no mention that the actual holder of copyright in government data or documents is Her Majesty the Queen in right of Canada, and that if any third party rights have been licensed to the Crown, Her Majesty will also be the one authorized to licence them further. What the double terminology seems to suggest instead is that Information Providers are Licensors only when they have the “authority” to license the information, presumably from Her Majesty the Queen in Right of Canada. This implies that there might be some rogue Information Providers who do not qualify as Licensors. It would be far simpler to adopt the structure used in the BC-OGL and simply acknowledge that where the information is provided by a department or agency of government, the Information Provider is acting on behalf of Her Majesty, and is entitled to licence the Crown copyright in the information. In other words, the legalistic term Licensor should be ditched in favour of Information Provider, and the Information Provider should be, ultimately, her Majesty the Queen in Right of Canada.

These criticisms aside, the OGL-C is a marked improvement over previous attempts at drafting open licences for federal government data. The licence is meant to be simple and accessible, and is designed to encourage rather than stifle the re-use of government information. Its reliance on the British OGL shows a willingness not only to build on the experience of others, but also to develop a licence that will have some measure of interoperability with other open licences around the world. Let’s hope that the process remains on track, and that the revised licence will indeed be adopted for use by spring 2013.

 

On July 12th the Supreme Court of Canada handed down five decisions on copyright law. Collectively these five judgments send a strong message as to the interpretation of the rights of both owners and users of copyright protected works.

In terms of owners’ rights, two of the decisions deal with the scope of the economic right to communicate a work to the public by telecommunication. A third decision addresses the scope of the neighboring right of performers and makers of sound recordings to be remunerated for performances of these works in public or for their communication to the public by telecommunication. The core issue in Entertainment Software Association and Entertainment Software Association of Canada v. SOCAN was whether a tariff could be applied to music incorporated into video games downloaded over the internet. Music is frequently a part of video games, and the makers of video games negotiate the rights to include this music in their products. No separate tariff is applied when such games are purchased by consumers from brick and mortar stores. The issue in this case was whether when the games were sold over the internet as downloads, the songs were communicated to the public by telecommunication. This would implicate a separate economic right of the music copyright holders, and would thus eligible for the imposition of a tariff. Similarly, in Re: Sound v. Motion Picture Theatre Associations of Canada the issue was whether a right of remuneration for music that formed part of movie soundtracks, the use of which would already have been negotiated with the rights holders, was triggered by each time the movie was screened, streamed or broadcast In Rogers Communications Inc. et al v. SOCAN, the issue was whether music streamed over the internet to consumers “on demand” was a communication to the public by telecommunication, to which a tariff could be applied.

In reaching its decisions in these three cases the Court demonstrated both a commitment to the “balancing” approach it had initiated with its 2002 decision in Théberge, and a concern that the Copyright Act be interpreted in a technologically neutral manner. The Court found that in the case of music incorporated into video games, the right to incorporate the music into the game had already been negotiated and paid for by the makers of the video games. The only distinction between the context in which the game was sold in stores and where it was sold over the internet was the manner in which the game was delivered to the consumer. According to the majority of the Court, “it makes little sense to distinguish between the two methods of selling the same work.” (at para 1). To decide otherwise, according to the majority, would “violate[] the principle of technological neutrality, which requires that the Act apply equally notwithstanding the technological diversity of different forms of media.”(at para 2). In the context of online sales of the games, the internet functioned simply as a means of delivering the work to the customer who paid for the work. The majority rejected an approach that would allow for two fees – one for reproduction and one for communication – to be charged simply because of the mode of delivery chosen for the work. The decision has significant ramifications for any work that is made available online for legal downloading, whether it is a movie, game, musical work or electronic text.

In Rogers, the court distinguished between using the internet to download music files from the internet (which would be analogous to the purchase of a video game over the internet, and thus not subject to a separate royalty for communication to the public) and the streaming of music to customers over the internet. In the latter case, musical works were being communicated over the Internet, and these communications were to “the public” notwithstanding the fact that “pull” technology was used such that the works communicated were dependent upon the choices of individual consumers. In reaching the decision the Court also emphasized the principle of “balance” noting that such a balance “is not appropriately struck where the existence of copyright protection depends merely on the business model that the alleged infringer chooses to adopt rather than the underlying communication activity. Whether a business chooses to convey copyright protected content in a traditional, “broadcasting” type fashion, or opts for newer approaches based on consumer choice and convenience, the end result is the same.” (at para 40). Thus in the case of consumers acquiring copies of musical or other works, the internet is used as a delivery mechanism and the work is not “communicated” in a broadcasting sense. By contrast, where the work is streamed, the act is one of communication in a manner that is equivalent to broadcasting.

The Court’s decision in Re: Sound is along the same lines. The Copyright Act provides that performers and makers of sound recordings have a right of remuneration with respect to the performance in public or the communication to the public by telecommunication of their performances or sound recordings. The Act contains an exception; the definition of a “sound recording” excludes “any soundtrack of a cinematographic work where it accompanies the cinematographic work”. On the face of it, this appears quite straightforward. The producers of a movie that is to include a musical work must clear the rights to use the work in the movie; the licensing fee would no doubt take into account the fact that the movie is intended to be shown in cinemas and made available for broadcast or other forms of communication to the public by telecommunication. Therefore, it is unnecessary to provide for additional remuneration for rights holders in these circumstances. This is, indeed, the interpretation adopted by the Supreme Court of Canada.

These decisions on the rights of copyright owners seem eminently sensible. They respect the right of the copyright owner to be remunerated for a commercial use of their work; at the same time, they resist what seems to have emerged as an industry practice to layer rights and royalties on single economic acts. The result is clear, straightforward, practical, and ultimately balanced.

The other two decisions of the Supreme Court of Canada dealt with the ‘users’ right’ of fair dealing. Prior to the decision in CCH Canadian, fair dealing had been treated in Canada as a rather limited exception to the rights of copyright holders. In CCH Canadian, the Supreme Court of Canada established it as a users’ right, and emphasized its role in maintaining the balance between public and private interests under the Copyright Act. In SOCAN v. Bell Canada, the Court was asked to consider the scope of fair dealing in relation to the practice of online music sites of providing previews consisting of short excerpts of musical works to customers searching for music to download from their sites. The collective societies sought a tariff that could be applied to such previews, arguing that they constituted a communication to the public by telecommunication of a substantial part of each work, thus engaging the economic rights of the copyright owner. The music providers argued that previews were consulted by customers as a form of research into the music they wished to purchase; as a result, they were fair dealing for the purposes of research under the Copyright Act. The unanimous Court ruled that these previews were fair dealing. They reiterated the view that fair dealing rights must not be interpreted restrictively, and maintained that “research” must be given a large and liberal interpretation. The Court rejected the idea that “research” could only refer to activities that led to the creation of new works or new knowledge. They maintained that “[t]o do so would ignore the fact that the dissemination of works is also one of the Act’s purposes, which means that dissemination too, with or without creativity, is in the public interest.” (at para 21). The Court found that there was a low threshold for qualifying activities as ‘research’ and that this threshold was met in this case. On the issue of whether the dealing was ‘fair’, it had been argued that the music sites made previews available to customers for essentially commercial purposes, mitigating against a finding that the dealing was fair. However, the Court was of the view that it was the purpose of users that should be considered; in this case, they used the previews “to help them research and identify musical works for online purchase.” (at para 34). The Court examined the nature of the dealing, noting that the excerpts were of 30 to 90 second portions of the work and were of a quality inferior to the musical work available for sale. The Court also rejected an approach to evaluating the volume of dealing with the work on an aggregate basis (i.e., not in relation to the portion of each work accessed, but rather the aggregate number of excerpts accessed by consumers). They noted that such an approach might undermine the goal of technological neutrality, since it would mean that “most of what online service providers do with musical works would be treated as copyright infringement.” (at para 43) The court noted as well that the previewing of musical works did not have a negative effect on the economic rights of the owner of copyright; rather, the goal of providing previews was to facilitate sales of the works, for which the copyright owners would be compensated.

The decision in Province of Alberta v. Access Copyright is likely to be the most controversial of the five decisions. This case addressed a dispute over what types of in-school copying activities could be captured by the tariff for reprography. As photocopying that was fair dealing would be excluded from the tariff, the dispute focussed on whether copies made of excerpts from text books for distribution to students for class instruction amounted to fair dealing. According to a 5-4 majority of the Court, it did. The majority declined to separate the teachers’ purpose (instruction) from that of the students (private study). Instead, they characterized the role of the teachers as to support and facilitate the research and private study of their students. The majority wrote: “It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.” (at para 23). The majority described this as a “symbiotic purpose” between students and teachers. They characterized the provision of photocopied materials to students by teachers as “an essential element in the research and private study undertaken by those students.” (at para 25) Further, the majority rejected an interpretation of “private study” that focussed on the term “private” – in their view, this term “should not be understood as requiring users to view copyrighted works in splendid isolation.” (at para 27)

Having found that the copying of excerpts was for “research or private study” the court next considered whether this dealing was “fair”. They found that it was. As in SOCAN v. Bell, they rejected an approach that considered the volume of dealing on an aggregate basis; instead each excerpt had to be considered in relation to the work from which it was taken. The majority found no reasonable alternative to the dealing; purchasing the books for each student was not a reasonable alternative given that only short excerpts were required. The Court also found the evidence of the economic impact of the copying on textbook publishers to be unconvincing. They noted that there was no causal link between a decline in textbook sales and the copying of short excerpts, and that other factors could more easily explain the decline in sales. Further, they found that it was not reasonable to assume that if the copying did not take place, that the books from which the excerpts were taken would be purchased for all students. The court noted that “it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school.” (para 36).

This decision is of great significance in the educational sector because of its broad definition of “research and private study” and its interpretation of the teachers’ role in their students’ activities. It is also of great significance because it will guide the interpretation of “education” as a new basis for fair dealing introduced by the recently passed Bill C-11. The educational sector in Canada has long been squeezed for royalties by Access Copyright. Resistance to Access Copyright’s licences has been growing, in part because of the under-inclusiveness of such licences when it comes to activities perceived as fair dealing. This decision by the Court sends a strong signal that fair dealing for the purposes research, private study, and now education must receive a large and liberal interpretation and must reflect the rights of users to access works, without payment of fees or need for a licence, to achieve these purposes.

Overall, the five decisions are a strong indication that the Supreme Court of Canada remains committed to the approach to copyright law which it laid down in Théberge and CCH Canadian. Their approach is pragmatic and straightforward. It rejects interpretations of the legislation that allow rights holders to layer economic rights in order to maximize revenues for discrete uses of works. It also makes it clear that fair dealing is a significant users’ right that should be given a generous construction consistent with the public interest it serves. The Court’s approach focuses on balance, and ultimately upon common sense.

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