ALAI Canada: Colloque Annual

McCarthy Tétrault Advance™
Building Capabilities for Growth
ALAI CANADA: COLLOQUE ANNUEL
Copyright and Technology: Challenges to Authors
and Copyright Holders
Barry B. Sookman
Direct Line: (416) 601-7949
E-Mail: bsookman@mccarthy.ca January 26, 2016
McCarthy Tétrault LLP / mccarthy.ca / 15202446

Introduction
¬ Technology brings new challenges to every facet of
copyright
¬ Changing public and judicial attitudes
¬ Copyright reform, ACTA, TPP
¬ Polarization, activism, risk taking
¬ How will our copyright regime adapt to changing
technologies?
¬ Who will benefit?
2

Challenges - exclusive rights
3
Do you need permission to link? Here's my table attempting a summary of recent CJEU case law, IPKat,
October 11, 2015 @ http://ipkitten.blogspot.ca/2015/10/do-you-need-permission-to-link-heres-my.html
• Does the MAR extend to all means of making content
available?
• What copying will be regarded as reproductions?
• Scope of secondary liability.

Challenges – exclusive rights
¬ What is a communication, who communicates to the public,
and makes copies?
¬ Network clouds? Cartoon Network LP v CSC Holdings
Inc 536 F 3d 121 (Cablevision) (2nd Cir 2008), RecordTV
Pte Ltd v MediaCorp TV Singapore Pte Ltd [2010] SGCA
43, National Rugby League Investments Pty Limited v
Singtel Optus Pty Ltd, [2012] FCAFC 59 (April 2012)
¬ Internet retransmission? American Broadcasting v. Aereo,
Inc., 134 S. Ct. 2498 (2014)
¬ Digital exhaustion/resale right? Capitol Records, LLC v.
ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013)
4

Challenges – intermediaries
¬ Responsibility for reducing infringements carried out using
intermediary networks:
¬ Notice and notice: Sony Music Entertainment (Ireland)
Limited v UPC Communications Ireland Limited (No.1)
[2015] IEHC 317
¬ Have and implement a repeat infringer policy: BMG Rights
Management (US) LLC v Cox Communications, Inc. No.
1:2014cv01611, (E.D. Va. Dec 1, 2015)
¬ Blocking and de-indexing orders: Cartier International AG & Ors
v British Sky Broadcasting Ltd & Ors [2014] EWHC 3354 (Ch)
(17 October 2014)
5

Challenges - exceptions and limitations
¬ “…issues of ownership and fair play are at the heart of The Authors
Guild’s lawsuit against internet giant Google, which has, without
permission from authors and without paying for their copyrighted
material, digitized millions of their books while ignoring, as if these
were irrelevant, their creators’ claims to ownership. Google has
justified this theft by arguing that the use they were making of our
property was “transformative,” a public service. They wouldn’t be
selling our books for profit, just providing a research tool that displays
only snippets, which would fall under the doctrine of “fair use.”
¬ “Nor should Google’s avowed altruism go unchallenged. Their use of
our intellectual property enhances both the quality and value of their
search engine, which in turn gives them an advantage over
competitors. It’s completely disingenuous for them to argue that their
behavior is selfless when it leads directly to an improved bottom line
and increases their value as a corporation.” Richard Russo [Authors
Guild Council member] on Authors Guild v. Google, Jan 6, 2016
6

Challenges – fair remuneration
¬ “the low payment of creators, composers, songwriters and performers is
today the most visible part of the impact caused by technological
advances in the use of protected works in the digital
environment…despite the fact that digital technology has allowed a
wider access to music by society as never before, there are questions
about the importance that has been attributed to these creators and
performers and if it is enough.” WIPO, Proposal for Analysis of
Copyright related to the Digital Environment, Group of Latin American
and Caribbean Countries (GRULAC) , SCCR/31/4, Dec. 1, 2015.
¬ Commercial webcasters pay “Webcast 10.2¢ per thousand plays”. “In
the United States, for 2012, the rate that webcasters must pay for the
same rights when their sole business is webcasting is $1.10 per
thousand plays (the “Pureplay rate”).” Copyright Board, Fact Sheet, May
16, 2014.
¬ Does private copying cause de minimis harm? British Academy of
Songwriters, Composers And Authors v Secretary of State for Business,
Innovation And Skills [2015] EWHC 1723 (Admin) (19 June 2015)
7

Challenges – Culture
¬ “Authors’ incomes are dropping… And a [PWC] study on the
longer-term implications shows a decline in writing and
publishing for the learning population; investment to create
Canadian educational materials drying up; writers
abandoning projects that could be of use to students; and
the choice and quality of educational materials available to
students steadily dropping.”
¬ “The danger is that students at Canadian schools, colleges
and universities will graduate without having read enough of
the Canadian stories, the Canadian research, the Canadian
approach to policy to feel that they are part of the larger
space-time continuum…” Heather Menzies (Chair Writers
Union) The copyright act needs to be edited – for writers’
survival, Globe & Mail Jan. 14, 2016
ault LLP / mccarthy.ca / 15202446
8

Challenges – technological neutrality
“In the absence of law or specific legal provisions on
the use of protected intellectual goods in the digital
environment traditional rights are often interpreted
by analogy or conceptual proximity of legal theories
originally envisaged for the physical environment.
This exercise usually ignores the fact that many
aspects of the physical environment are difficult to
apply in the digital environment.” WIPO, Proposal for
Analysis of Copyright related to the Digital
Environment, presented by the Group of Latin
American and Caribbean Countries (GRULAC) ,
SCCR/31/4, Dec. 1, 2015
9

Goals of Copyright – why it matters
10

11
Copyright creates incentives to create
and distribute Works
“Intellectual property laws originated in order to
protect the promulgation of ideas. Copyright law
provides incentives for innovators -artists, musicians,
inventors, writers, performers and marketers - to
create. It is designed to ensure that ideas are
expressed and developed instead of remaining
dormant. Individuals need to be encouraged to
develop their own talents and personal expression of
artistic ideas, including music. If they are robbed of
the fruits of their efforts, their incentive to express
their ideas in tangible form is diminished.” BMG
Canada Inc.v John Doe 2005 FCA 193

12
Copyright prevent “unfair” appropriation
of efforts (historical view)
¬ The moral basis of copyright rests on the 8th commandment
‘Thou shalt not steal’”. MacMillan & Co. Ltd. v. Cooper (1923),
40 T.L.R. 186 (P.C.) per Lord Atkinson
¬ Bishop v. Stevens [1990] 2 S.C.R. 467 Justice McLachlin of
the Supreme Court of Canada stated that the Copyright Act
“was passed with a single object, namely, the benefit of
authors of all kinds”.
¬ Vigneux v. Canadian Performing Rights Society, [1943] S.C.R.
348, reversed [1945] A.C. 108 (Canada P.C.). Justice Duff
stated that the purpose of copyright is to prevent persons from
“unfairly availing themselves of the work of others” and that the
“protection of authors … is the object to be attained by all
patent and copyright laws.”

McCarthy Tétrault LLP / mccarthy.ca / 15202446 13
Rational for Copyright (modern view)
“The Copyright Act is usually presented as a
balance between promoting the public
interest in the encouragement and
dissemination of works of the arts and
intellect and obtaining a just reward for the
creator (or, more accurately, to prevent
someone other than the creator from
appropriating whatever benefits may be
generated).” Théberge v. Galerie d'Art du
Petit Champlain inc. (2002), 17 C.P.R. (4th)
161 (S.C.C.)

¬ “Théberge reflected a move away from an earlier, author-
centric view which focused on the exclusive right of authors
and copyright owners to control how their works were used in
the marketplace: see e.g. Bishop v. Stevens, [1990] 2 S.C.R.
467, at pp. 478-79. Under this former framework, any benefit
the public might derive from the copyright system was only “a
fortunate by-product of private entitlement”…
¬ “Théberge focused attention instead on the importance
copyright plays in promoting the public interest, and
emphasized that the dissemination of artistic works is central
to developing a robustly cultured and intellectual public
domain.” SOCAN v. Bell Canada, [2012] 2 SCR 326
14McCarthy Tétrault LLP / mccarthy.ca / 15202446 14

”To be sure, Théberge demonstrates how this Court’s
understanding of the purpose of the Copyright Act has
evolved since the pronouncement in Bishop that the
“single object” of the Act was to benefit authors: Bishop,
at pp. 478-79, quoting Performing Rights Society v.
Hammond’s Bradford Brewery Co., [1934] 1 Ch. 121, at
p. 127. Théberge observed that, when weighing
competing policy interests under copyright, “[t]he proper
balance . . . lies not only in recognizing the creator’s
rights but in giving due weight to their limited nature”:
para. 31.” Canadian Broadcasting Corp. v. SODRAC
2003 Inc., 2015 SCC 57
15McCarthy Tétrault LLP / mccarthy.ca / 15202446 15

Canada’s Framework for Addressing
Technology Challenges
16

Originality
“As mentioned, in Théberge, supra, this Court stated that the purpose
of copyright law was to balance the public interest in promoting the
encouragement and dissemination of works of the arts and intellect
and obtaining a just reward for the creator. When courts adopt a
standard of originality requiring only that something be more than a
mere copy or that someone simply show industriousness to ground
copyright in a work, they tip the scale in favour of the author’s or
creator’s rights, at the loss of society’s interest in maintaining a robust
public domain that could help foster future creative innovation… By
way of contrast, when an author must exercise skill and judgment to
ground originality in a work, there is a safeguard against the author
being overcompensated for his or her work. This helps ensure that
there is room for the public domain to flourish as others are able to
produce new works by building on the ideas and information contained
in the works of others…” CCH Canadian Ltd. v. Law Society of Upper
Canada, [2004] 1 S.C.R. 339
17

Originality
“Requiring that an original work be the product of an exercise of
skill and judgment is a workable yet fair standard. The “sweat of
the brow” approach to originality is too low a standard. It shifts the
balance of copyright protection too far in favour of the owner’s
rights, and fails to allow copyright to protect the public’s interest in
maximizing the production and dissemination of intellectual works.
On the other hand, the creativity standard of originality is too high.
A creativity standard implies that something must be novel or non-
obvious — concepts more properly associated with patent law
than copyright law. By way of contrast, a standard requiring the
exercise of skill and judgment in the production of a work avoids
these difficulties and provides a workable and appropriate
standard for copyright protection that is consistent with the policy
objectives of the Copyright Act.” CCH Canadian Ltd. v. Law
Society of Upper Canada, [2004] 1 S.C.R. 339
18

Authorization
“Authorize” means to “sanction, approve and countenance” …
Countenance in the context of authorizing copyright infringement
must be understood in its strongest dictionary meaning, namely,
“give approval to, sanction, permit, favour,
encourage…Authorization is a question of fact that depends on the
circumstances of each particular case and can be inferred from
acts that are less than direct and positive, including a sufficient
degree of indifference… However, a person does not authorize
infringement by authorizing the mere use of equipment that could
be used to infringe copyright. Courts should presume that a person
who authorizes an activity does so only so far as it is in
accordance with the law…This presumption may be rebutted if it is
shown that a certain relationship or degree of control existed
between the alleged authorizer and the persons who committed
the copyright infringement.” CCH Canadian Ltd. v. Law Society of
Upper Canada, [2004] 1 S.C.R. 339
19

¬ Court rejected Moorhouse decision which held that there can
be infringement if a person:
(1) has under his control the means by which an infringement
of copyright may be committed “such as a photocopying
machine;”
(2) makes it available to other persons, knowing, or having
reason to suspect, that it is likely to be used for the
purpose of committing an infringement, and
(3) omits to take reasonable steps to limit its use to legitimate
purposes.
¬ Moorhouse was rejected because it “shifts the balance in
copyright too far in favour of the owner's rights and
unnecessarily interferes with the proper use of copyrighted
works for the good of society as a whole”. CCH Canadian Ltd.
v. Law Society of Upper Canada, [2004] 1 S.C.R. 339
Authorization
20

Communication to the public
“Ultimately, in determining the extent of copyright, regard must be
had for the fact that “[t]he Copyright Act is usually presented as a
balance between promoting the public interest in the
encouragement and dissemination of works of the arts and intellect
and obtaining a just reward for the creator” (Théberge v. Galerie
d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336,
at para. 30). This 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. The
copyrighted work has been made available to an aggregation of
individuals of the general public.” Rogers Communications Inc v
SOCAN, 2012 SCC 35
21

Communication and MAR
¬ “…the right to “communicate” is historically connected to the
right to perform a work and not the right to reproduce
permanent copies of the work…
¬ The right to perform historically presupposed a live audience
that would be present at the site where the performance took
place…
¬ we agree with Rothstein J. (at para. 98) that there is a “historic
relationship” between the performance right and the
communication right in the Copyright Act, but we disagree with
his conclusion that Parliament intended to sever this
relationship based on the 1988 amendments. In our view, this
historical connection between communication and performance
still exists today.” ESA v SOCAN [2012] 2 SCR 231
¬ Did the 2012 CMA amendments change the law?
22

Reproduction
¬ “The ordinary meaning of the text of the Copyright Act indicates
that broadcast-incidental copying activities do engage the
reproduction right…
¬ There is nothing in the text, context or legislative history of these
provisions (or s. 3(1)) that supports the view that the broadcasting
process obviates the fact that broadcast-incidental copies are
reproductions under the Copyright Act. Arguments based on
purpose in the form of technological neutrality and balance are
advanced to come to the opposite conclusion, but purposive
construction is a tool of statutory interpretation to assist in
understanding the meaning of the text. It is not a stand-alone basis
for the Court to develop its own theory of what it considers
appropriate policy. Accordingly, the Board was correct in
proceeding on the basis that broadcast incidental copies engage
the reproduction right under s. 3(1)(d) of the Copyright Act.”
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57
23

Fair Dealing
“…the fair dealing exception is perhaps more properly
understood as an integral part of the Copyright Act than
simply a defence. Any act falling within the fair dealing
exception will not be an infringement of copyright. The fair
dealing exception, like other exceptions in the Copyright
Act, is a user's right. In order to maintain the proper
balance between the rights of a copyright owner and users'
interests, it must not be interpreted restrictively. As
Professor Vaver, supra, has explained, at p. 171: ‘User
rights are not just loopholes. Both owner rights and user
rights should therefore be given the fair and balanced
reading that befits remedial legislation.’” CCH Canadian
Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339
(emphasis added)
24

Fair Dealing
“…in considering whether previews are for the purpose of
“research” under the first step of CCH, the Board properly
considered them from the perspective of the user or consumer’s
purpose. And from that perspective, consumers used the previews
for the purpose of conducting research to identify which music to
purchase, purchases which trigger dissemination of musical works
and compensation for their creators, both of which are outcomes
the Act seeks to encourage.” SOCAN v. Bell Canada, [2012] 2
SCR 326,
“As noted in the companion appeal SOCAN v. Bell, fair dealing is a
“user’s right”, and the relevant perspective when considering
whether the dealing is for an allowable purpose under the first
stage of CCH is that of the user”. Alberta (Education) v. Access
Copyright, [2012] 2 SCR 345
25

Fair Dealing
¬ “When the Great Library staff make copies… they do so for the
purpose of research. Although the retrieval and photocopying of legal
works are not research in and of themselves, they are necessary
conditions of research and thus part of the research process. The
reproduction of legal works is for the purpose of research in that it is
an essential element of the legal research process. There is no other
purpose for the copying; the Law Society does not profit from this
service.”
¬ "Dealing" connotes not individual acts, but a practice or system...
Persons or institutions relying on the s. 29 fair dealing exception need
only prove that their own dealings with copyrighted works were for the
purpose of research or private study and were fair. They may do this
either by showing that their own practices and policies were research-
based and fair, or by showing that all individual dealings with the
materials were in fact research-based and fair.” CCH Canadian Ltd. v.
Law Society of Upper Canada, [2004] 1 S.C.R. 339
26

Fair Dealing
“In CCH, the Court concluded that since no
evidence had been tendered by the publishers of
legal works to show that the market for the works
had decreased as a result of the copies made by
the Great Library, the detrimental impact had not
been demonstrated. Similarly, other than the
bald fact of a decline in sales over 20 years,
there is no evidence from Access Copyright
demonstrating any link between photocopying
short excerpts and the decline in textbook sales.”
Alberta (Education) v. Access Copyright, [2012]
2 SCR 345
27

Technological Neutrality - Principle
¬ “The principle of technological neutrality is recognition that,
absent parliamentary intent to the contrary, the Copyright Act
should not be interpreted or applied to favour or discriminate
against any particular form of technology.”
¬ “The Federal Court of Appeal set out a fair reading of ESA when
it described it as establishing that “[t]echnological neutrality is
determined by functional equivalence: para. 39.”
¬ “technological neutrality required the consideration of the
difference between the old and new forms of delivery of works.
In the absence of any difference between them, no separate
right was engaged.”
¬ ““an additional layer of protections and fees” [should] not be
imposed based solely on technological change: ESA, at para.
9.” Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015
SCC 57
28

Technological Neutrality - Source
“It is derived from the balancing of user and right-
holder interests discussed by this Court in Théberge
— a “balance between promoting the public interest in
the encouragement and dissemination of works of the
arts and intellect and obtaining a just reward for the
creator”: para. 30. Because this long-standing
principle informs the Copyright Act as a whole, it must
be maintained across all technological contexts: “The
traditional balance between authors and users should
be preserved in the digital environment”: ESA, at
para. 8.” Canadian Broadcasting Corp. v. SODRAC
2003 Inc., 2015 SCC 57
29

Technological Neutrality - Role
¬ “The Copyright Act as a whole is to be read having regard to
the principles of technological neutrality and balance, unless
its text indicates otherwise.”
¬ “the principles of balancing user and right-holder interests and
of technological neutrality are central to Canadian copyright
law, they cannot change the express terms of the Copyright
Act.”
¬ “Arguments based on purpose in the form of technological
neutrality and balance are advanced to come to the opposite
conclusion, but purposive construction is a tool of statutory
interpretation to assist in understanding the meaning of the
text. It is not a stand-alone basis for the Court to develop its
own theory of what it considers appropriate policy.” Canadian
Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57
30

Technological Neutrality - Valuation
¬ “Overall, the Board’s valuation analysis must comport with
the Copyright Act’s fundamental requirement to recognize
technological neutrality and balance between user and right-
holder interests.”
¬ “…where the right is engaged, the issue becomes one of
valuation of that right, and the principles of technological
neutrality and balance must be adapted to the valuation
context.”
¬ “In the regulatory context, the principle of technological
neutrality applies to valuation of a reproduction licence, just
as it does in determining whether an activity implicates
copyright at all.” Canadian Broadcasting Corp. v. SODRAC
2003 Inc., 2015 SCC 57
31

¬ “ technological neutrality requires that different
technologies using reproductions of copyright
protected work that produce the same value to
the users should be treated the same way.”
¬ “technological neutrality implies that it would be
improper to impose higher copyright licensing
costs on the user of one technology than would
be imposed on the user of a different
technology.” Canadian Broadcasting Corp. v.
SODRAC 2003 Inc., 2015 SCC 57
32

¬ “Conversely, different technologies using
reproductions that produce different values should
not be treated the same way.”
¬ “Where the user of one technology derives greater
value from the use of reproductions of copyright
protected work than another user using
reproductions of the copyright protected work in a
different technology, technological neutrality will
imply that the copyright holder should be entitled to a
larger royalty from the user who obtains such greater
value.” Canadian Broadcasting Corp. v. SODRAC
2003 Inc., 2015 SCC 57
33

“When it is tasked with fixing licence fees, the Board must
have regard to factors it considers relevant in striking a
balance between the rights of users and right-holders.
Relevant factors will include, but are not limited to, the
risks taken by the user, the extent of the investment the
user made in the new technology, and the nature of the
copyright protected work’s use in the new technology.
The Board must assess the respective contributions of,
on the one hand, the risks taken by the user and the
investment made by the user, and on the other hand, the
reproductions of the copyright protected works, to the
value enjoyed by the user.” Canadian Broadcasting Corp.
v. SODRAC 2003 Inc., 2015 SCC 57
34

“When it is tasked with determining the value of a
right, an important consideration for the Board is the
value of that right to the user. The value of the use
of reproductions in one technology may stem from
functional differences from use in another
technology. Value differences may also stem from
internal efficiencies between technologies. Ignoring
internal efficiencies would result in rights holders
being denied additional royalties when the use of
their copyrighted work in the more efficient
technology confers greater value to the user of that
technology.” Canadian Broadcasting Corp. v.
SODRAC 2003 Inc., 2015 SCC 57
35

Technological Neutrality - Communication
¬ “A communication is not restricted to a purely non-
interactive context.”
¬ “Section 3(1)(f) Is Not Limited to Traditional “Push”
Technologies; It Is Technology-Neutral”
¬ “Although the words “in any material form whatever” qualify
the right to “produce or reproduce the work” in s. 3(1), the
same principle should guide the application of the neutral
wording of the right to “communicate … to the public by
telecommunication”. The broad definition of
“telecommunication” was adopted precisely to provide for a
communication right “not dependent on the form of
technology…” Rogers Communications Inc. v. SOCAN,
[2012] 2 S.C.R. 283
36

Technological Neutrality - Fair Dealing
“Since fair dealing is a “user’s” right, the “amount of the dealing” factor
should be assessed based on the individual use, not the amount of the
dealing in the aggregate...The “amount of the dealing” factor should
therefore be assessed by looking at how each dealing occurs on an
individual level, not on the aggregate use.”
“Further, given the ease and magnitude with which digital works are
disseminated over the Internet, focusing on the “aggregate” amount of the
dealing in cases involving digital works could well lead to disproportionate
findings of unfairness when compared with non-digital works. If, as
SOCAN urges, large-scale organized dealings are inherently unfair, most
of what online service providers do with musical works would be treated
as copyright infringement. This, it seems to me, potentially undermines
the goal of technological neutrality, which seeks to have the Copyright Act
applied in a way that operates consistently, regardless of the form of
media involved, or its technological sophistication”. SOCAN v. Bell
Canada, [2012] 2 SCR 326,
37

Intermediary liability/responsibility
¬ “In the Board's view, the means “necessary” under s. 2.4(1)(b) were
means that were content neutral and were necessary to maximize
the economy and cost-effectiveness of the Internet “conduit”. That
interpretation, it seems to me, best promotes “the public interest in
the encouragement and dissemination of works of the arts and
intellect” (Théberge, supra, at para. 30) without depriving copyright
owners of their legitimate entitlement. The creation of a “cache” copy,
after all, is a serendipitous consequence of improvements in Internet
technology, is content neutral, and in light of s. 2.4(1)(b) of the Act
ought not to have any legal bearing on the communication between
the content provider and the end user…(emphasis added)
¬ “Caching” is dictated by the need to deliver faster and more
economic service, and should not, when undertaken only for such
technical reasons, attract copyright liability.” SOCAN v CAIP, [2004]
2 S.C.R. 427
38

¬ “I conclude that the Copyright Act, as a matter of legislative policy
established by Parliament, does not impose liability for infringement
on intermediaries who supply software and hardware to facilitate use
of the Internet. The attributes of such a “conduit”, as found by the
Board, include a lack of actual knowledge of the infringing contents,
and the impracticality (both technical and economic) of monitoring the
vast amount of material moving through the Internet, which is
prodigious…”
¬ “…copyright liability may well attach if the activities of the ISP cease to
be content neutral, e.g. if [a hosting provider] has notice that a content
provider has posted infringing material on its system and fails to take
remedial action.”
¬ “While lack of knowledge of the infringing nature of a work is not a
defence to copyright actions generally…nevertheless the presence of
such knowledge would be a factor in the evaluation of the “conduit”
status of an Internet Service Provider, as discussed below.” SOCAN v
CAIP, [2004] 2 S.C.R. 427
39

¬ “…it appears that Voltage has a strong prima facie case
establishing piracy of its copyright product by the fact that
TekSavvy’s subscribers are downloading its materials without any
possible suggested colour of right. Piracy of copyrighted materials
on the Internet is a serious issue in North America. The Court’s
general policy therefore, should be to support measures that
reasonably deter such illegal conduct, in which category I place
Voltage’s litigation, as it appears to be brought on a bona fide basis
to deter such activity.”
¬ “the policy in these types of motions should normally be to facilitate
the plaintiff’s legitimate efforts to obtain the information from ISPs
on the prima facie illegal activities of its subscribers. In my view,
courts should be careful not to allow the ISP’s intervention to unduly
interfere in the copyright holder’s efforts to pursue the subscribers,
except where a good case is made out to do so.” Voltage Pictures
LLC v. John Doe, 2015 FC 1364

¬ “Mr. Justice Arnold found that the English High Court had
jurisdiction to require Internet service providers to block availability
of the offending websites.
¬ Section 39(1) of the Law and Equity Act, R.S.B.C. 1996,
c. 253 is rooted in the same predecessor legislation as s. 37(1)
of the English Senior Courts Act 1981, and is in almost identical
terms:
¬ 39 (1) An injunction or an order in the nature of mandamus may
be granted or a receiver or receiver manager appointed by an
interlocutory order of the court in all cases in which it appears to
the court to be just or convenient that the order should be made.
¬ Canadian law on the authority to issue injunctions has paralleled
that of England. In my view, Arnold J.’s conclusions with respect to
the jurisdiction of English courts to grant injunctions are equally
applicable to the Supreme Court of British Columbia.” Equustek
Solutions Inc. v. Google Inc., 2015 BCCA 265

¬ “Section 49 of the Charter provides that punitive damages may
be awarded if there is an unlawful and intentional interference
with any of the rights and freedoms that the Charter
recognizes. The evidence establishes unlawful and intentional
interference with several of Robinson’s Charter rights.
Copyright infringement is a violation of s. 6 of the Charter,
which provides that “[e]very person has a right to the peaceful
enjoyment and free disposition of his property, except to the
extent provided by law”: see Construction Denis Desjardins
inc. v. Jeanson, 2010 QCCA 1287 (CanLII), at para. 47.
Additionally, the infringement of copyright in this case
interfered with Robinson’s personal rights to inviolability and to
dignity, recognized by ss. 1 and 4 of the Charter.” Cinar
Corporation v. Robinson, [2013] 3 SCR 1168
42

How will authors/copyright holders do?
¬ Linking – Svensson, Bestwater, GS Media?
¬ Internet retransmission and network clouds – Aereo and
Cablevision?
¬ Digital exhaustion – ReDigi?
¬ Fair dealing – Google Books?
¬ Internet intermediary responsibility – BMG, Cartier?
¬ Culture?
43

VANCOUVER
Suite 1300, 777 Dunsmuir Street
P.O. Box 10424, Pacific Centre
Vancouver BC V7Y 1K2
Tel: 604-643-7100
Fax: 604-643-7900
Toll-Free: 1-877-244-7711
CALGARY
Suite 3300, 421 7th Avenue SW
Calgary AB T2P 4K9
Tel: 403-260-3500
Fax: 403-260-3501
Toll-Free: 1-877-244-7711
TORONTO
Box 48, Suite 5300
Toronto Dominion Bank Tower
Toronto ON M5K 1E6
Tel: 416-362-1812
Fax: 416-868-0673
Toll-Free: 1-877-244-7711
MONTRÉAL
Suite 2500
1000 De La Gauchetière Street West
Montréal QC H3B 0A2
Tel: 514-397-4100
Fax: 514-875-6246
Toll-Free: 1-877-244-7711
QUÉBEC
Le Complexe St-Amable
1150, rue de Claire-Fontaine, 7e étage
Québec QC G1R 5G4
Tel: 418-521-3000
Fax: 418-521-3099
Toll-Free: 1-877-244-7711
UNITED KINGDOM & EUROPE
125 Old Broad Street, 26th Floor
London EC2N 1AR
UNITED KINGDOM
Tel: +44 (0)20 7489 5700
Fax: +44 (0)20 7489 5777

ALAI Canada: Colloque Annual

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (16)

Similaire à ALAI Canada: Colloque Annual

Similaire à ALAI Canada: Colloque Annual (20)

Plus de bsookman

Plus de bsookman (20)

Dernier

Dernier (20)

ALAI Canada: Colloque Annual