September 25, 2012 Herb Regehr and Kwan Loh Bull, Housser & Tupper LLP Changes to Copyright Law – a Practical Discussion

Protects: expression of idea (not idea itself) Owner: author is first owner, except for employees Term: arises on creation; life of author + 50 years Assignment: copyright can only be assigned in writing Copyright - Basics

Copyright Literary Works Dramatic WorksMusical Works Artistic Works

What’s special about 2012? 2012 – a year of change Copyright Modernization Act Five decisions from the S.C.C.

Copyright Modernization Act Bill C-11, or “The 4th time’s the charm” 2005, 2008, 2011 Why “modernize”? Commitment to WIPO treaties – signed 1997 Account for “the digital age” Royal Assent – June 29, 2012

Key Topics Photographers Performers and sound recorders Enabling infringement Shelters and safe harbors Technological protective measures and rights management information (TPD and RMI)

Key Topics Exceptions for consumers Exceptions for educational institutions Limitation on statutory damages Fair dealing

Photographers Now own copyright in their photographs subject to agreement to contrary Exception to infringement for commissioner Non-commercial purpose Revise agreements with photographers?

Performers and Sound Recorders Right to make available and distribute recognition of Internet as means of communication Performers now have moral rights 50 years from publication Need for waivers?

Enabling infringement Providing a service “primarily for the purpose of enabling acts of copyright infringement” = infringement Pirate Bay, Isohunt Possibility of statutory damages avoid need to prove damage

Shelters for ISPs As intermediary – not liable for infringement caching; hosting are OK only technical modification of material allowed contrast with “enablers” unless ISP has knowledge of Court decision Who is a “service provider”?

Shelters for ISPs Notice and Notice copyright owner -> ISP -> alleged infringer ISP to retain records on alleged infringer Failure to comply remedy limited to statutory damages ($5,000 to $10,000)

Shelters for search engines “information location tools” only technical modification of material allowed Only relief that can be claimed is injunctive – no damages! “Don’t be Evil”…

TPMs and RMIs TPMs control access to or restrict use of digital material e.g. digital locks, registration/activation keys, encryption can trump copyright exceptions (fair use etc.) RMIs manage information about a copyrighted work and its owner e.g. digital watermark

TPMs and RMIs Prevent: Circumvention of TPMs; tampering with RMIs No removal or alteration of RMI without consent injunction, damages, accounting, delivery up, etc.

Consumer exceptions Non-commercial user generated content the “YouTube” provision – mash-ups non-commercial credit original source no reason to believe source material infringes no adverse effect on source

Consumer exceptions Reproduction for private purposes and backup copies original legally obtained / non-infringing does not circumvent TPM not given away used for private purposes / solely for backup

Educational institutions Reproduction and display of work for purpose of education on premises Distance education lessons Digital reproduction of licensed works Use of publicly available works for education

Limitation on statutory damages New: “non-commercial infringement” $100 to $5,000 for all infringements Contrast to $500 to $20,000 for commercial infringement How will “non-commercial” be defined?

Fair dealing – statutory changes New categories: education parody satire Broadens fair dealing – but still not the same as fair use in the U.S.

Fair dealing – statutory changes Dealing must be “fair” (CCH) purpose character amount alternatives nature of the work effect of the dealing on the work

Fair dealing – statutory changes Parody: close imitation for purposes of humor or ridicule Satire: holding up human practices to ridicule or scorn through sarcasm, irony or trenchant wit Poor “Bim” – open season? Michelin v. CAW (FCTD) – union held liable How thick is your corporate “skin”?

Fair dealing – statutory changes

Fair dealing – S.C.C. cases SOCAN v. Bell Canada music previews (e.g. on iTunes) – fair? Yes – previews constitute fair dealing for research (9-0 decision)

Fair dealing – S.C.C. cases SOCAN v. Bell Canada liberal interpretation of “research” fairness analysis: > previews help consumers’ purchase decision > effect of previews is to increase sales of the work > no copies existed after preview heard > of lower quality

Fair dealing – S.C.C. cases Alberta v. Access Copyright multiple copies of short excerpts of textbooks as complement to main textbook – fair? Yes – “private study” by students (5-4 decision)

Fair dealing – S.C.C. cases Alberta v. Access Copyright Majority: teachers facilitate students’ research and private study; no ulterior motive private study focused on concept of studying; need not be in isolation

Fair dealing – S.C.C. cases Alberta v. Access Copyright Majority: no reasonable alternative to achieve the same purpose no evidence that decline in textbook sales resulted from competition with copies copying facilitates access to books already purchased

Fair dealing – S.C.C. cases Alberta v. Access Copyright Minority: teacher’s purpose: to teach students (now have education as “fair dealing”) “private study” = individual study; otherwise “private” has no meaning absence of alternative does not necessarily make dealing fair

Practical implications Unfortunately, there is little certainty Those working with photographers and performers – consider existing agreements and whether there is need to revise Ensure websites are not enabling infringement

Practical implications Set up Notice and Notice procedures Re-evaluate litigation (existing and potential) Understand the shelters and exemptions available to ISPs, search engines, educational institutions and consumers, and possible changes re: statutory damages / injunctive relief

Questions?

Thank you!