Teresa Scassa - Blog

A new report from uOttawa’s Canadian Internet Policy and Public Interest Clinic (CIPPIC) prepared in collaboration with Carleton’s Geomatics and Cartographic Research Centre (GCRC) proposes a strategy for protecting traditional knowledge that is shared in the digital and online context. The report proposes the use of template licences that will allow Indigenous communities to set the parameters for information sharing consistent with cultural norms..

Traditional knowledge – defined by the World Intellectual Property Organization as “the intellectual and intangible cultural heritage, practices and knowledge systems of traditional communities, including indigenous and local communities” – is poorly protected by contemporary intellectual property (IP) regimes. At the root of the failed protection is the reality that Western IP systems were designed according to a particular vision of creativity and innovation rooted in the rise of the industrial revolution. It is a product of a particular social, economic and ideological environment and does not necessarily transplant well to other contexts.

The challenge of protecting indigenous cultural objects, practices and traditional knowledge has received considerable attention – at least on the international stage – as it is a problem that has been exacerbated by globalization. There are countless instances where multinational corporations have used traditional knowledge or cultural heritage to their profit – and without obvious benefit to the source communities. Internationally, the Nagoya Protocol on Access and Benefit Sharing seeks to provide a framework for the appropriate sharing of traditional knowledge regarding plant and genetic resources. Innovative projects such as Mukurtu provide a licensing framework for Indigenous digital cultural heritage. What CIPPIC’s report tackles is a related but distinct issue: how can Indigenous communities share traditional knowledge about themselves or their communities while still maintaining a measure of control that is consistent with their cultural norms regarding that information?

For years now, the GCRC has worked with Indigenous communities in Canada to provide digital infrastructure for cybercartographic atlases that tell stories about those communities and their land. These multimedia atlases offer rich, interactive experiences. For example, the Inuit Siku (Sea Ice) Atlas documents Inuit knowledge of sea ice. The Lake Huron Treaty Atlas is a complex multimedia web of knowledge that is still evolving. These atlases are built upon an open platform developed by the GCRC and that can be adapted by interested communities.

The GCRC sought out the assistance of CIPPIC to explore the possibility of creating a licensing framework that could assist Indigenous communities in setting parameters for the sharing and reuse of their traditional knowledge in these contexts. The idea was to reduce the burden of information management for those sharing information and for those seeking to use it through a series of template licences that can be adapted by communities to suit particular categories of knowledge and contexts of sharing. This is a complex task, and there remains much work to be done, but what CIPPIC proposes offers a glimpse into what might be possible.

A pair of interesting copyright lawsuits are making their way through the federal court and are worth watching for the novel issues they raise and the potential they have for shaping copyright law in Canada.

One of these is actually a series of lawsuits brought by the news service Blacklock’s Reporter against a total of 7 federal government departments and agencies and 3 Crown corporations and agencies. Blacklock’s provides articles on a subscription basis only; it accuses the various defendants of having accessed copies of its articles without having subscribed to the service and in breach of their copyrights. The defendants argue that Blacklock’s “employs a pattern of writing misleading or inaccurate articles about an organization with the expectation that these articles would be accessed and shared internally.”[1] They then allege that Blacklock’s files access to information requests to uncover details of such access and distribution in order to issue claims for damages for copyright infringement. Essentially, they contend that Blacklock’s is engaged in copyright trolling. (Note that I wrote about an earlier law suit brought in Ontario small claims court by Blacklock’s against the Canadian Vintner’s Association here.)

The Federal Court has just upheld a prothonotary’s decision to streamline this litigation by issuing a stay of proceedings in 9 of the 10 lawsuits until certain legal issues have been aired and decided in the 10^th. The decision is based on the view that since each of the cases raises similar issues, it would be more just and a more efficient use of resources to proceed in this way.

The defendants do not appear to deny having accessed the articles in question. Instead, they argue that the uses made of the articles in question were fair dealing (based on use of the material for “internal government reporting purposes”). They also raise the defense of copyright misuse. Copyright misuse relies on an argument that the copyright owner, through its conduct, is attempting to secure for themselves a broader right than it is entitled to by law. The defence now has a considerable track record in the United States, but remains novel in Canada. Clearly this litigation raises interesting arguments that make it worth following. The five-day trial for the case that is to go forward has been scheduled for September 2016.

A second case involves what is called a “reverse class action law suit” brought by Voltage Pictures against an as-yet unidentified group of defendants for copyright violation related to the downloading of films in which Voltage holds copyright. Typically a class action law suit is brought by a large group of plaintiffs who have all been harmed by the same wrong allegedly committed by a single defendant. The class action law suit allows plaintiffs to pool their efforts and it makes for a more efficient use of judicial resources. Class action law suits can also be used to hold defendants to account in cases where large numbers of people are negatively affected, but no single individual has suffered enough economic harm to make it worthwhile taking their case to court. In these ways, class action law suits improve access to justice. The reverse class-action law suit is quite another animal. In a reverse class-action law suit, there is a single plaintiff who essentially is arguing that it has been harmed by the actions of multiple defendants. Rather than sue each defendant individually, they proceed against a single defendant who is considered representative of the much larger class.

Voltage has recently succeeded in having a court compel Rogers Communications Inc. to reveal the name and address of a subscriber whose account has been linked by Voltage to allegedly illegal downloading activity. This will be the representative defendant in a law suit that may put the activities of thousands of other as yet unnamed ISP subscribers at issue. Of course, a court has yet to certify the reverse class action law suit.

Voltage’s strategy comes as both the courts and Parliament have put limits on the extent to which ordinary consumers can be targeted in copyright infringement lawsuits for non-commercial uses of works. By significantly limiting the damages available in such instances, Parliament made it deliberately difficult for copyright holders to launch law suits seeking massive amounts of damages against ordinary individuals – a practice that has become notorious in the United States. The “notice and notice” provisions of the Copyright Act also protect against sweeping accusations of copyright infringement that might otherwise limit freedom of expression by compelling the take down of content that might fall within the fair dealing exceptions to copyright infringement. Canadian courts have also been quite protective of individual privacy, requiring that a plaintiff establish a bona fide claim of copyright infringement before a court will issue an order compelling a service provider to produce customer name and address information that is linked to the allegedly infringing activity. The reverse class action lawsuit offers plaintiffs a work-around to some of these protective measures and could open the door to the large-scale pursuit of those who download unauthorized content over the internet. Both copyright owners and users’ rights advocates will be watching this case with interest.