Tag Archives: copyright infringement

Copyright Cases in 2014 – Canada

Canadian Copyright Law Court Cases in 2014

Those following Canadian copyright law in the courts will likely always remember 2012 as an important year in copyright cases when five different cases were decided by the Supreme Court of Canada. Of course, every year is different when it comes to copyright law in the courts. Below are three summaries of court cases on Canadian copyright law in 2014.

2014: The year in review for Canadian copyright law, by Gowlings’ lawyers Kevin Sartorio and Toba Cooper

LSUC: The year in review in copyright (2014) by McCarthy Tétrault lawyer Barry Sookman

IP Year in Review – 2014 – The Perpetual Motion of IP Law by IP Osgoode’s Giuseppina D’Agostino

And for an international perspective on copyright cases in 2014, see:

2014 – The Copyright Year by The 1709 Blog

 

New Copyright Border Regime in Canada

New Copyright Border Regime Now in Effect

A new copyright border regime is now in effect in Canada. Border remedies allow the detention (at the border) of allegedly infringing or pirated copyright materials from being imported into Canada. Until January 1, 2015 under the old copyright border regime, a copyright owner could only get Canadian Customs officers at the border to detain suspected infringing copies of works if the copyright owner or exclusive licensee had a court order from the Federal Court of Canada or from a superior court of law in one of the provinces. Details of border remedies and how to obtain a court order are set out on pages 226 – 228 of Canadian Copyright Law, Fourth Edition. The border remedies set out in the Copyright Act are in addition to any other rights a copyright owner may have under the Customs Act.

New Canadian copyright border enforcement remedies

Canada’s Combating Counterfeit Products Act

On 9 December 2014, Canada’s Combating Counterfeit Products Act passed and received Royal Assent. The sections of the Act on Canada’s new border enforcement regime came into force on 1 January 2015. The Act amends the Trade-Marks Act and the Copyright Act and this blog post focusses on the changes to the Copyright Act. In terms of copyright, the changes will help copyright owners combat the importation and distribution of unauthorized goods in Canada. One of the explicit border measures now include rights holders being able to “request for assistance” (RFA)  to the Canadian Border Services Agency (CBSA) Intellectual Property Rights Program to detain unauthorized goods. The copyright works in question do not have to be registered with the Canadian Intellectual Property Office. In addition, the CBSA is now able to send samples and information to rights holders about the detained goods, as well as information about the identity of the importer, if a request for assistance has been filed. It will no longer be necessary to obtain a court order and have full knowledge of the particulars of the incoming unauthorized goods. Click for form BSF738 – Request for Assistance.

There is no fee to file an RFA however rights holders are liable for costs related to storage, handling and destruction of any detained goods in specified circumstances, and must begin a civl action within 10 days of any notice of detention (extendable by 10 days) or the goods will be released.

Canada Gazette

For further information, see the Explanatory Note by the Government of Canada in the Canada Gazette on 31 December 2014 fixing 1 January 2015 as the day on which certain provisions of the Combating Counterfeit Products Act come into force.

Learn more about Canadian Copyright Law.

 

 

 

Who is liable for online infringement?

The New Canadian Notice and Notice Regime

Who is Responsible for Online Copyright Infringement in Canada?

Are Internet service providers (ISPs) and search engine providers responsible when their subscribers and users infringe copyright? In the book Canadian Copyright Law (beginning at page 220), there is a discussion about who is liable for online copyright infringement in Canada. At the time of writing the book, there was no legally required system in Canada for ISPs and others to remove allegedly infringing content hosted by their service, even when a copyright owner notified the ISP. Although not mandatory, many Canadian ISPs have been voluntarily using a notice and notice regime.

What is a Notice and Notice Regime?

A notice and notice regime means that when an ISP receives a notice from a copyright holder that an ISP subscriber may be infringing copyright, the ISP forwards the notice to the subscriber. In the 2012 amendments to the Canadian Copyright Act, this regime has been codified and becomes mandatory as of 2 January 2015.

Government of Canada on the Notice and Notice Regime

A press release from the Government of Canada states the following:

The Notice and Notice regime is a made-in-Canada solution and will legally require Internet intermediaries, such as ISPs and website hosts, to take certain actions upon receiving a notice of alleged infringement from a copyright owner.

Specifically, ISPs and hosts are required to forward notices, sent by copyright owners, to users whose Internet address has been identified as being the source of possible infringement. The intermediary must also inform the copyright owner once the notice has been sent.

The Copyright Modernization Act sets clear rules on the content of these notices. Specifically, they must be in writing and state the claimant’s name and address, identify the material allegedly being infringed and the claimant’s right to it, as well as specify the infringing activity, the date and time of the alleged activity, and the electronic address associated with the incident. The Government is bringing the regime into force after determining that the Act provides sufficient flexibility for the regime to function without regulations.

Intermediaries must retain records associated with these notices for six months or longer (up to one year) in case a copyright owner decides to pursue legal action.

A copyright owner can also send a notice to a search engine provider.

If a notice is sent to a search engine provider for allegedly including infringing material on a website and that material has since been taken down, the search engine provider is expected to remove any copies they may have generated (e.g., for caching purposes) within 30 days. If copies are not removed, copyright owners could pursue damages after 30 days.

Learn more about Canadian Copyright Law.

What is a Copyright Policy or Copyright Guidelines?

A copyright compliance policy or copyright guidelines can have many purposes. Purposes include:

  • providing information to help determine who owns works created during employment
  • explaining the terms and conditions in licenses for using digital content
  • establishing a procedure for clearing permissions in copyright-protected works
  • providing guidelines on interpreting fair dealing

One way to explain the role of a copyright compliance policy or copyright guidelines is as a summary of copyright management procedures for your organization or institution. Depending on the contents of the policy or guidelines, it can also be an educational tool and serve as reference material on copyright issues relevant to your organization or institution. Another important role of a copyright compliance policy or guidelines is to provide a single, consistent approach to copyright issues.

Although it may initially be read cover-to-cover, a copyright compliance policy or guidelines is more likely to be consulted on an as-needed basis, so a strong index and/or search tool is recommended to ensure its effectiveness. A policy or guidelines should always be “live” and be reviewed and updated periodically to reflect changes in copyright law, technology, organizational policies, and the way in which you use copyright-protected materials in your organization.

What is the purpose of your Copyright Policy or Guidelines?

Do you have a Copyright Compliance Policy or Guidelines? Does it stay true to your purpose(s)? Or are you now articulating your purposes so that you can develop a Policy or Guidelines? Need assistance developing a copyright policy or guidelines? Click here.

Copyright in the Supreme Court of Canada in December 2013: Cinar v. Robinson

It’s not everyday that the Supreme Court of Canada deals with copyright issues. In late December 2013, the court issued its decision in Cinar Corporation v. Robinson.

The facts first. The educational children’s tv show, The Adventures of Robinson Curiosity, was created by Robinson. He wrote the scripts and synopses, created the characters, drew detailed sketches and storyboards, and designed promotional materials. Robinson never created a tv series based on all of his work. Cinar did create a series; Robinson sued Cinar for basing its tv series (called Robinson Sucroë) on Robinson’s work. Robinson claimed that Cinar’s show had many non-literal similarities in characters and their environment.

The Quebec Court awarded substantial damages; that decision was affirmed for the most part by the Quebec Court of Appeal. Which brings up to the Supreme Court of Canada decision. The Supreme Court ruled in favour of Robinson which leads us to the conclusion that a TV series can be protected without word-for-word copying.

Highlights from Cinar v. Robinson

Supreme Court of Canada ruling on copyright infringementBelow are some highlights from the court’s decision:

  • the Canadian Copyright Act “does not give the author a monopoly over ideas or elements from the public domain, which all are free to draw upon for their own works.”
  • an infringement takes place when a substantial part of a work is used without permission. The Court stated: “As a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author’s skill and judgment expressed therein.”
  • “A substantial part of a work is not limited to the words on the page or the brushstrokes on the canvas. The Act protects authors against both literal and non-literal copying, so long as the copied material forms a substantial part of the infringed work.”
  • the Court stated that what is important in a copyright infringement case is the extent of the similarities between the two works in questions, and not the extent of the differences.

Click here to read the Supreme Court of Canada case Cinar Corporation v. Robinson.