The Supreme Court of Canada dealt a strong blow to the so-called promise doctrine and made international precedent when it ordered Google to de-index infringing websites across the global Internet. These and the other developments noted below pave the way for an IP-busy 2018 as we await the release of the National IP Strategy, which will hopefully set the stage for Canadian advancements and benefits from emerging technologies and business practices. Here at IP Osgoode, we are set to examine the promise and challenges associated with one of these important technology areas: artificial intelligence (AI). On February 2, 2018, our AI conference, ¡°Bracing for Impact: The Artificial Intelligence Challenge¡±, will feature internationally renowned AI experts from Canada and abroad. For more information and registration, visit .

We hope you can take part in our AI conference as well as our regular suite of exciting activities and initiatives as 2018 gets further underway!

PATENTS

The patent law landscape experienced incremental changes and some profound shifts that seemed to mimic the changes of the seasons here in Canada during 2017.

It¡¯²õ All About the Money

The year kicked off with a chilling warning to Non-Practicing Entities (NPEs) seeking to protect patent rights through litigation. NPEs commencing patent infringement actions ¡°without a clear theory of infringement¡± may be sanctioned with for disregarding the ¡°serious cost consequences [following from] allegations shown to be unwarranted¡±. In , the Federal Court of Canada was satisfied that the defendant¡¯²õ activities were non-infringing; and because the plaintiffs ¡°should have known that Bell did not infringe¡±, they were ordered to pay solicitor-client costs.

The Federal Court of Appeal reminded us in February that in ¡°an extremely complex patent case involving [...] 22 allegations of invalidity, 33 days of discovery, 32 days of trial, written submission exceeding 700 pages, and the closing argument lasting three days¡±.

The Federal Court of Appeal also decided on profit recovery for infringing activities. In , the Court highlighted that the differential profit approach of recovery is to ¡°ensure that a patentee only receives that portion of the infringer¡¯²õ profit that is causally attributable to the invention¡±. Accordingly, the Court asserted that it is as the actual value of the ¡°patent lies in the ability of the patentee to exclude competitors and competition¡± .

The Season of New Life and Law

In the UK, the beginning of spring was marked with a UK Patent Court decision on the interplay between IP and Competition Law. In , the court tackled issues involving standard-essential patents (SEPs), as well as the (FRAND) principles applicable to licensing agreements between patentees and licensees. In particular, the UK Court explained that the requirement to commit to FRAND terms in a SEP licence serves the public interest insofar as it spurs ¡°the best and most up-to-date technical¡± standards to be set and inventors to ¡°obtain a fair reward for their invention¡±. While Canadian jurisprudence is yet to develop on what negotiations are FRAND and what are not, the guidelines forecast issues that industries might face on this matter.

Shortly after, the Federal Court of Canada released its , which aimed at developing efficient, expedient, and proportional use of court time. A rundown of the particularly noteworthy protocols to streamline trials and court¡¯²õ resources is available .

The spring also ushered in a as the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union received Royal Assent on the 16^th of May []. It is important to note that CETA listed the ICSID tribunal as the main recourse for disputes. on how this may affect the IP environment domestically suggests that the ICSID¡¯²õ unappealable decisions could be a new problem for Canada, absent the requirement of certification in domestic courts. So, in addition to CETA¡¯²õ implications toward patent term restoration, appeals under NOC regulations, and the potential end of dual litigation ¡ª see general outline and significance for pharmaceutical patent protection ¡ª further developments stemming from the tribunal jurisdiction are anticipated for the new year.

The last development of the season provided an important lesson from a business perspective regarding IP transfer agreements. In , poor management of IP rights and poorly conceived transfer agreements proved to be a hindrance to enforceability. The Federal Court also delivered an important lesson around patent infringement when it announced the Public Judgement and Reasons in , awarding Dow Chemical the largest patent infringement monetary award in Canadian history: $644,623,550 and pre-judgement interest.

Utility, Enforceability, and NOCs

Two hot-button issues from the Supreme Court of Canada heated up the start of the summer. One involved the decision that did away with the Promise Doctrine, and the other pertained to a global takedown order imposed on an online intermediary (Google) that may change the future of IP enforcement.

In the first, , the Court effectively abolished the Promise Doctrine on utility. , all explicit promises of utility made by a patentee had to be fulfilled for the patent to be valid. The Court nonetheless deemed this requirement ¡°unsound¡± and ¡°not good law¡±. For the Court, ¡°depriv[ing] such an invention of patent protection if even one ¡®promised¡¯ use is not soundly predicted or demonstrated is punitive and has no basis in the Act¡±. So, in bringing the common-law more into accord with the requirements for patentability, the Court revamped , requiring that the patentees demonstrate, essentially, what the subject-matter of the invention is, and how it is useful in serving a practical purpose.

The second case, , played an important role in increasing IP enforcement outreach in the Internet era. It provides the courts with a more effective measure to protect IP rights. Specifically, the precedent allows an IP owner to obtain a court order against search engines ¡ª such as Google in this case ¡ª for the removal, on a global scale, of search results (websites) that facilitate infringement of IP rights. It will be interesting to observe whether or not this decision affecting online intermediaries such as Google will to address the problem of unreachable wrongdoers, or will conversely be deemed a to non-infringing actors that are a .

The end of summer featured the ¡¯²õ proposed amendments to the Notice of Compliance (NOC) Regulations. The amendments seek to update the pharmaceutical patent litigation regime in Canada, enabling Canada to . A discussion of the most significant changes to Canada¡¯²õ NOC Regulations can be found . The changes will apply to proceedings in which Notices of Allegation (NOAs) were served on or after September 21, 2017 ¡ª the date of the NOC Regulations.

Promptly after, the Federal Court released its for actions under the amended NOC Regulations to promote efficiency in light of the strict timelines ¡ª 24-month timeframe for a proceeding to be completed and a decision rendered ¡ª imposed by the . The guidelines set out procedural rules to be observed for proceedings under the amended NOC Regulations. Some key points worthwhile to look at were outlined .

A Not-So-Obvious Future

Lastly, the winter months saw an of the Canadian law of obviousness. In , the Federal Court of Appeal deemed the ¡°inventive concept¡± set out in the case an ¡°unnecessary satellite debate¡± in the analysis of obviousness. After being over the years ¡ª see , ¡ª the current test for obviousness seems to place emphasis on the as a , at least until a clearer definition of the ¡°inventive concept¡± is developed by the Supreme Court.

TRADEMARKS

2017 saw a number of notable Canadian court decisions in the realm of trademark law. Outside of the courts, other developments will also shape the IP landscape going forward.

Consumer Criticism Gets a Bit Riskier

In a case dealing with consumer criticism of a brand - - the Federal Court returned a decision favourable to brand-owners. The plaintiff, United Airlines, sued the defendant, Jeremy Cooperstock, for trademark and copyright infringement, depreciation of goodwill, and passing off, over his ¡°gripe site¡± . The court characterized the website as a ¡°consumer criticism website where visitors can find information on the Plaintiff, submit complaints about the Plaintiff, and read complaints about the Plaintiff dating back to 1998 in the database of complaints.¡± The website included an .

Justice Phelan held that Cooperstock provided ¡°services¡± through the website and that the marks were ¡°being used or displayed in the advertising or performance of services pursuant to s 4(2) of the Trade-marks Act.¡± He also found that there was a likelihood of confusion. As a result, the defendant was found to have infringed s. 20(1)(a).

The defendant was also found liable for passing off: the court found significant goodwill attached to the United marks, that there was confusion and the likelihood of confusion, and that the plaintiff? suffered damages or was likely to suffer potential damages.

The court held that Cooperstock ¡°intentionally attempted to attract the Plaintiff¡¯²õ online consumers to his own website for notoriety¡± and therefore depreciated the goodwill associated with the United marks, contrary to s. 22. Of note, the Defendant was also found to have infringed copyright in the marks and Justice Phelan dismissed the fair dealing defence of parody.

Whereas previous decisions such as Michelin v. Canadian Auto Workers and?BCAA et al. v. Office and Professional Employees¡¯ Int. Union et al., had held that trademark owners¡¯ rights to control the use of their mark in the context of criticism were limited, the United case demonstrates that brand critics must be careful in their use of brands¡¯ logos and trademarks. While , ¡°[i]n this case, the Defendant sailed too close to the wind ¨C and he was put up on the rocks.¡±

Why Seek an Injunction Anywhere Else?

In , the plaintiff Sleep Country was successful in its motion for an interlocutory injunction. Sleep Country sought to restrain Sears from using the slogan ¡°THERE IS NO REASON TO BUY A MATTRESS ANYWHERE ELSE¡±, which it argued was confusing with its own slogan ¡°WHY BUY A MATTRESS ANYWHERE ELSE?¡± Sleep Country alleged that Sears¡¯ use of the slogan was causing harm to Sleep Country as ¡°a result of confusion between the two slogans, as well as depreciation of the goodwill and loss of distinctiveness of Sleep Country's registered trade-marks.¡±

The court considered the tripartite RJR-MacDonald test for issuing such an injunction: a serious issue has been raised, the party seeking the injunction will suffer irreparable harm if the injunction is not granted, and the balance of convenience favours the seeking party. The key issue on the motion was irreparable harm, which the court found was established by Sleep Country¡¯²õ ¡°concrete and non-speculative evidence.¡± Justice Kane held that lost sales, loss of distinctiveness, and depreciation of value of the slogan would lead to irreparable harm, and that the harm could not easily be quantified. The balance of convenience was also found to favour Sleep Country.

It has traditionally been quite difficult for trademark owners to obtain interlocutory injunctions. The Sleep Country case indicates that the courts may be relaxing the onus on trademark owners to prove irreparable harm, particularly in cases where confusion is quite apparent.

Notably, the Quebec Superior Court in denied the plaintiff a similar injunction because ¡°the Court cannot come to the conclusion that it is clear that the use by Cascades new Fluff trademark will cause confusion with the Royale trademarks.¡± Irving dealt with the allegation that Cascades¡¯ fluffy bunny was confusing with Irving¡¯²õ furry Royale kittens. The court concluded that ¡°the use of white furry animals is not unique to the packaging for living's products¡± and that any harm would be quantifiable. Contrasted with Sleep Country, in which it was held that any harm would be too difficult to quantify, Irving shows that it may still be difficult for trademark owners to obtain interlocutory injunctions.

Injunctions Go Global

In a case that dealt with trade secrets and passing off, , the Supreme Court affirmed the effectiveness of an extra-territorial injunction granted by the lower courts. The issue on appeal was ¡°whether Google can be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company.¡±

The court concluded that the injunction was the only way to mitigate the harm to Equustek pending the resolution of the underlying litigation. The case therefore stands for the availability of an extra-territorial injunction as an equitable remedy in Canadian courts: ¡°Where it is necessary to ensure the injunction¡¯²õ effectiveness, a court can grant an injunction enjoining conduct anywhere in the world.¡±

Among the other trademark cases decided by Canadian courts this year, and are of particular interest.? In Travelway, the Federal Court of Appeal held that owning a registered mark is not a complete defence to infringement ¨C the respondent¡¯²õ registered mark was held to infringe that of the applicant¡¯²õ. In Diageo, the Federal Court held that Heaven Hill¡¯²õ Admiral Nelson rum products infringed Diageo¡¯²õ registered Captain Morgan marks. The court considered the plaintiff and defendant¡¯²õ trade dress and found the Captain Morgan trade dress to be a distinguishing guise and therefore enforceable under the Trade-marks Act. The court also found that the goodwill associated with the Captain Morgan mark had been depreciated.

Other Changes to Trademark Law

Canada¡¯²õ updated Trademarks Act is set to come into force in early 2019. In June 2017, the the first draft of the new Trademark Regulations. Comments were accepted until July 21, 2017 and will be taken into consideration when revising the draft regulations. Among the notable changes coming in 2019 are Canada¡¯²õ accession to the Madrid Protocol, the Singapore Treaty, and the Nice Agreement and its classification system. Also significant will be the removal of the use requirement at the time of registration.

COPYRIGHT

2017 continued many of the debates and cases started from the previous year. While some decisions received accolades, others received outright criticism. As was the case in 2016, fair dealing questions came to the fore and hit close to home at 91ÑÇÉ«.

Fear Dealing and Post-Secondary Education

In a much anticipated decision, the Federal Court ruled against 91ÑÇÉ« in and directed the university to pay an interim tariff to Access Copyright. In 2011, 91ÑÇÉ« opted out of the Access Copyright licence due to increasing tariffs and implemented its own copyright guidelines. Crucially, the 91ÑÇÉ« guidelines allowed students enrolled in a class or course to receive a single copy through a coursepack or via a posting on an online learning management system if the copying was done in accordance with ¡°fair dealing¡±. However, the Federal Court held that 91ÑÇÉ« did not have any right to opt-out of tariffs and that the university¡¯²õ guidelines were arbitrary and not compliant with section 29 of the . Among other things, the guidelines operated under the assumption that the use of 10% of a copyright-protected work was ¡°fair dealing¡± but did not provide an explanation. Quantitatively, this threshold might seem to restrict copying of an entire text. But, as , qualitatively, the parts copied may constitute the ¡°core¡± of the work, making such use ¡°unfair,¡± and conceivably allow for the reproduction of the entirety of a work if multiple sections are used across courses and faculties. Further, the court emphasised the school¡¯²õ failure to comply with the guidelines and therefore, enforced the interim tariff. the inclusion of ¡°education¡± as a fair dealing purpose played little role in this decision. While much attention on the case framed the important issues with respect to fair dealing, note that the case was not about copyright infringement, but rather whether tariffs imposed by the Copyright Board of Canada are mandatory for post-secondary institutions that use copyright-protected material licensed by Access Copyright. 91ÑÇÉ« indicates it will the decision so these questions will continue in 2018 and beyond.

Anti-Circumvention and Technological Protection Measures

Setting precedent in 2017, in the Federal Court applied substantive rules on the anti-circumvention of technological protection measures (TPMs), which were introduced in the Copyright Act 2012. The Federal Court expressed its willingness to enforce the TPMs and protect against circumvention in the digital age. The case involved a corporation named Go Cyber shopping (2005) Ltd., which sold and installed circumventing devices enabling users to play potentially hundreds The Federal Court in the suit filed by Nintendo, awarded $12.7 Million as damages and held that Go Cyber ¡°authorized¡± copying by providing instructions to download header data without the consent of Nintendo constituting infringement. suggests that by adopting ¡°a broad interpretation of a technological protection measure¡±, the court confirmed Canadian copyright law¡¯²õ tough stance on copyright piracy.

Obligations of Internet Service Providers

The ongoing conflict between reached the Supreme Court after the decision of the Federal Court of Appeal (FCA) in 2017. Rogers filed before the Supreme Court to consider the scope of the Internet service provider¡¯²õ (ISP) obligations under the notice and notice system. The FCA ruled that ISPs can disclose the alleged offender¡¯²õ identity for free. The decision surprised the industry because it would be easier for copyright holders to that they come to financial settlements.

Data protections

Affirming the trial court¡¯²õ ruling on the copyright protection of seismic data, the appeal in the Alberta case of was dismissed and appeal by GSI to the Supreme Court was denied. On Appeal, GSI argued that Section 101 of should be interpreted properly. , ¡°The correct interpretation of "disclose" also confers on these Boards the legal right to grant to others both access and opportunity to copy and re-copy all materials acquired from GSI and collected under the Regulatory Regime¡±.

This decision will ensure copyright protection of seismic data by simultaneously providing a framework to access it.

Canadian content and Copyright-related Reviews

In 2017, the Federal Government also adopted initiatives to protect Canadian creators and introduced a policy framework to extend Canadian content worldwide. On September 28, M¨¦lanie Joly, Minister of Canadian Heritage, announced Later in the year, on December 13, the Government officially announced the Parliamentary Review of the Copyright Act, as mandated by the 2012 Copyright Modernization Act.? The government also to reform Copyright Board of Canada in August.

U.S. Developments

In the U.S., perhaps the biggest copyright case of 2017 was The case dealt with the issue of whether copyright could subsist in the ¡°pictorial, graphic, or sculptural features¡± of a ¡°design of a useful article¡± ¨C in this case, cheerleading uniforms. Ultimately, the U.S. Supreme Court held that such design features as the arrangement of lines and shapes on cheerleading uniforms were eligible for copyright protection, so long as they were separable from the useful article in question. In other words, if the impugned designs were imagined in abstraction ¨C say for example if they appeared on a canvass ¨C and thus eligible for copyright protection, then they would be equally eligible for copyright protection as part of a useful article. Therefore, while copyright cannot protect the shape, cut, or dimensions of cheerleading uniform, those design features that are separable from the functional object may be eligible for copyright protection. And while such a holding is not entirely novel, the Star Athletica decision likely sets a valuable precedent for lower courts that have struggled with the extent to which copyright protects the design features of a functional object.

Fair use was also a hot topic in U.S. courts in 2017, with a variety of interesting outcomes in cases across creative media. In , a raunchy parody of the Dr. Seuss classic ¡°How the Grinch Stole Christmas¡± was held to be the kind of transformative work that qualifies as fair use. Meanwhile, in , a U.S. district court judge held that unauthorized children¡¯²õ versions ¨C or ¡°KinderGuides¡± ¨C of classic books by Hemmingway, Kerouac, and the like did not constitute fair use, but rather infringing use. In music, Drake¡¯²õ use of a spoken word sample from jazz artist James Oscar Smith was held to be fair use in , and in film, a Star Trek fan-fiction movie was held to be a derivative work and not fair use in .

Copyright Around the World

Internationally, toymaker Lego was successful for the first time in a against manufacturers in China of some near-identical toys. 2017 also saw China clearly establish its growing importance on the international copyright stage, with deals in the book industry and increasing pressure on to meet international standards with respect to copyright licensing. Meanwhile in the E.U., courts held that if they perform an essential role in facilitating piracy of copyright-protected material, and that the may constitute copyright infringement.

IP OSGOODE

In 2017, IP Osgoode celebrated one of our very own, , who has been a guiding force in the Canadian intellectual property (IP) landscape for the past 40 years.? IP Osgoode and Osgoode Hall Law School hosted a special symposium entitled, ¡°¡± in celebration of Prof. Vaver¡¯²õ in recognition of ¡°his leadership in intellectual property law as a scholar and mentor¡±.

The symposium included a distinguished set of participants drawn from Prof. Vaver¡¯²õ network of former students, colleagues and research collaborators, and highlighted four main themes of Prof. Vaver¡¯²õ extensive scholarship: overlap and redundancy in the IP system, legislation and reform, users¡¯ rights, and the importance of history. The luncheon keynote speaker, The , CC,QC (Supreme Court of Canada, 2006 to 2015),? who was introduced by The , QC (Federal Court of Canada, 2001 to 2016), provided a heartwarming speech that gave the audience a glimpse into Prof. Vaver¡¯²õ early life and career.

To mark the year?Prof. Vaver?received the?Order of Canada, IP Osgoode medal. The medal will be awarded yearly to an Osgoode student in the graduating class who merits special recognition for outstanding achievements in the area of intellectual property law. The student¡¯²õ achievements extend beyond academic excellence, and can include significant contributions to research in intellectual property and related areas or exceptional commitment and enthusiasm through their participation in intellectual property-related extra-curricular activities.

Following the previous year¡¯²õ successful partnership with Norton Rose Fulbright LLP, the IP Osgoode Innovation Clinic continued to grow in 2017. On behalf of IP Osgoode, Professor D¡¯Agostino entered into an exciting with the International Law Research Program at the Centre for International Governance Innovation (CIGI) to support the Innovation Clinic. The IP Osgoode-CIGI partnership stems from a mutual desire to facilitate the discovery, dissemination and application of new knowledge concerning practical IP law training of law students and the desire the to facilitate the provision of basic IP legal services to early stage innovators and start-ups. IP Osgoode hired Dr. as the first full-time Innovation Clinic Coordinator. The addition of a full time coordinator has allowed for a substantial increase of the Clinic¡¯²õ carriage of client files and expanded the Innovation Clinic¡¯²õ outreach beyond the 91ÑÇÉ« and Osgoode Hall communities as well as the Toronto and 91ÑÇÉ« Regions into the Waterloo Region and throughout Ontario.

The partnership also supports Prof. D¡¯Agostino¡¯²õ research project, which consists of a critical evaluation of the Innovation Clinic model as well as clinic models elsewhere, and identifying potential opportunities for developing a sustainable network of clinics in Canada and beyond. The research and report will further dialogues between industry, law schools, law societies, the Canadian Intellectual Property Office (CIPO), levels of government, and other relevant stakeholders regarding the creation of a network of IP law clinics across Canada. This work will be published in 2018 and help inform and support CIPO and federal government initiatives to increase IP awareness, accessibility, and education in Canada.

Top 10 most read 2017 IPilogue articles

Giuseppina D¡¯Agostino is the Founder & Director of IP Osgoode, the IP Intensive Program, and the Innovation Clinic, the Editor-in-Chief for the IPilogue and the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School.

With contributions from Stephen Cooley (IPilogue Editor & Osgoode JD Candidate) and Haramrit Kaur (IPilogue Editor and Osgoode Professional Development LLM (Canadian Common Law) Candidate) on Copyright, Sebastian Beck-Watt (IPilogue Senior Editor & Osgoode Graduate) on Trademarks, and Bruna Kalinoski (IPilogue Editor & Osgoode LLM Graduate) on Patents.

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Critics of the TPP have disparaged the agreement for serving the interests of large US-based corporations. World Bank chief economist, Clinton Administration advisor, and Nobel laureate wrote an denouncing that the working text was held ¡°secret from the public (even though the details are accessible to hundreds of advisors to big corporations)¡± and that the treaty ¡°proposes to freeze into a binding trade agreement many of the worst features of the worst laws in the TPP countries, making needed reforms extremely difficult if not impossible¡±. In Canada, innovative entrepreneurs including former Blackberry/Research in Motion co-CEO Jim Balsillie (who is now helping create a tech-focussed lobby group,?) argue the TPP IP measures are?.

The copyright and related rights sections of the TPP??largely cohere with existing Canadian law??and obligations under other international treaties. As indicated in Global Affairs Canada¡¯²õ?, the TPP?¡°Provides protection and enforcement of copyrights and related rights, reflecting or building upon the World Intellectual Property Organization Internet Treaties. Canada ratified the Internet Treaties in 2014.¡±?As well, Global Affairs Canada notes that the TPP?¡°Reflects key aspects of Canada¡¯²õ regime, including: Canada¡¯²õ Notice-and-Notice regime regarding Internet service providers¡¯ role in addressing online copyright infringement; protection and enforcement to prevent the circumvention of technological protection measures and the removal of rights management information; and Canada¡¯²õ copyright exceptions and limitations framework.¡±

A close reading of the Copyright Act and the TPP IP?Chapter demonstrates that current Canadian copyright law will not need to be significantly altered to be in line with the TPP. Additionally, IP lawyer and adjunct Osgoode Law School professor Barry Sookman? ¡°the TPP leaves the parties with flexibility to maintain or establish exceptions¡±.

This flexibility is important, especially in situations where the TPP copyright sections and Canadian law differ, as these divergences could impact efforts to further develop a vibrant digital economy in Canada. If the TPP is ratified and goes into force,?Canada's digital economy will need to be designed to exploit the?flexibilities and exceptions built into the TPP to suit the needs of the Canadian public as well as the business sector.

Changes: Copyright Term Extension and TPM/RMI Enforcement

One significant divergence between Canadian law and the TPP is found in TPP?, which requires that the term of protection?¡°shall be not less than the life of the author and 70 years after the author¡¯²õ death¡±.?This section would extend Canada¡¯²õ current copyright term by 20 years. The only exception is found in the case of?¡°a sound recording in which the performance is fixed is published before the copyright expires¡±?,, a section of Canadian law recently changed to?¡°the copyright continues until the earlier of the end of 70 years after the end of the calendar year in which the first such publication occurs and the end of 100 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs¡±.

Canadian law would also need to change to adhere to the technological protection measures (¡°TPMs¡±) of the TPP. Existing Canadian law states no person shall circumvent TPMs or provide or market services to do the same . These anti-circumvention provisions prevent the?¡°manufacture, import, distribute, offer for sale or rental or provide ¡ª including by selling or renting ¡ª any technology, device or component¡±??designed, produced, or marketed primarily for the purpose of circumventing TPMs. Exceptions are made in the case of ensuring technological interoperability??as well as law enforcement and national security purposes?.

The TPP??reinforces and extends the provisions of the?Copyright Act?with respect to TPMs as well as rights management information (¡°RMI¡±)?. Similar to existing Canadian law, the TPP offers civil and criminal remedies and penalties for a person either?knowingly engaging in or?¡°having reasonable grounds to know¡± that they were engaging in the breaking the so-called digital locks. The Copyright Act??and the TPP IP Chapter??both provide for criminal penalties for willfully circumventing TPMs for commercial or financial gain, while excepting non-profit libraries, museums, archives, and educational institutions. In contrast to the Copyright Act, the TPP also extends these penalties to the protection of RMI?, which are information pertaining to the authorship and ownership of a work. While the TPP allows for domestically-tailored limitations to be enacted with respect to TPMs?¡°through a legislative, regulatory, or administrative process¡±?, this concession is not extended to RMIs, where legislated exceptions are limited to cases of?"law enforcement, essential security interests or other related governmental purposes, such as the performance of a statutory function"?. Restricting the ability to alter or remove RMIs for non-commercial purposes can prevent users to modify works even in accordance with fair dealing exceptions.

The Changes in Context

The TPP not requiring significant alterations to Canadian copyright law is both positive and a negative. The TPP reflects the priorities and interests of existing United States businesses and industries, restricting the ability of the Government of Canada and other parties to the Agreement to??in the future without re-negotiating the agreement itself. This will prevent the TPP parties from responding to changing technological circumstances and alternative business practices, which could help encourage future entrepreneurship and innovation or to reflect domestic priorities. The TPP establishes an international framework for copyright law and related rights based on existing corporate realities. However, the merits of these laws as written can be questioned according to whether or not they are desirable or designed for and in line with the interests of prevailing corporations and business practices.[1]

For example, the extension of copyright terms is controversial due to the fact that?longer rights periods delay the addition of content into the public domain, add burdens and costs to consumers, and help extend the transfer of wealth to rights holders at the disservice to the public good[2]. A??for New Zealand¡¯²õ Ministry of Economic Development estimates consumer costs to be NZ$55million per year.

Similarly and with respect to TPMs, McGill University law professor?, now the new Parliamentary Secretary of International Trade,??that TPMs represent ¡°a serious conceptual flaw or incoherence¡±, which ¡°could overwhelm the copyright balances¡± (p. 327).

Lawyers and academics have??and that International Trade Minister??should look to?. Issues remain to?complicate the ratification of the TPP in the US and elsewhere. If or when the TPP comes into force, Minister Freeland and Parliamentary Secretary Lametti should be proactive and work to ensure that the Government of Canada has the domestic policy space to interpret international trade obligations and the ability to revise Canadian copyright law to foster a digital economic policy, which serves the best interests of Canadian citizens and stakeholders. The Copyright Act requires that the law is reviewed every five years?. With this in mind as well as the fast-changing realities of the digital economy, the Government of Canada should actively engage with partner Parties to amend the agreement as necessary and in accordance with the TPP's final provisions?.

The ¡®Made in America¡¯ approach of the TPP helps extend and reinforce the economic and market-based concerns of American companies and industries. Such a move threatens to fortify Canadian dependency on American copyright protected exports and limit Canadian corporations¡¯ ability to disrupt the digital economic business practices of dominant American firms. As I have argued elsewhere, in order for Canada to continue to compete with international companies?and?develop a digital economy?that responds to and builds from the emerging realities of the 21^st?Century, the Government of Canada must be proactive and work to retain and utilize copyright and related rights flexibilities to serve the best interest of Canadians and the economic viability of innovative and domestically grown businesses and business practices.

[1] For further information, see the??from University of Ottawa?law professor Michael Geist, the Canada Research Chair in Internet and E-Commerce Law.

[2]?In a?,??finds that extending the copyright terms has an ¡°insignificant impact on the number of works created in Canada,¡± may slightly increase the costs to consumers, and ¡°will likely contribute in a small way to an outflow of royalties from Canada¡± (Executive summary, para. 2).

Joseph F. Turcotte is a Graduate Student Member of IPOsgoode and a PhD Candidate (ABD) in the Communication & Culture Program (Politics & Policy) at 91ÑÇÉ«. His research focuses on the role of knowledge, information, data, and intellectual property in the functioning of knowledge-based and digital economies. He can be reached via Twitter at?

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Blacklock¡¯²õ Reporter is an Ottawa news reporter that grants access to its articles via a subscription service. After it on a court decision relating to the CVA, personal defendant Dan Paszkowski and a colleague became alerted to the article on the premise that it might contain factual inaccuracies. Without a subscription, they resorted to contacting an acquaintance with access, who provided them with a cut-and-paste copy for them to examine. Once Blacklock¡¯²õ became aware of this, they requested that both individuals purchase subscriptions. Their claims went ignored.

Before delving too deeply into the evidence, the biggest thing to take away from Blacklock¡¯²õ is that under the court¡¯²õ reasoning, access must be lawful before any use can take place. Though the size of the claim merited an action in Small Claims Court, the analysis leaves much to be desired ¨C Gilbert DJ making a number of errors, such as continually referring to fair dealing as a ¡®defence¡¯ against breaching copyright. Most importantly, when running the fair dealing analysis (clearly outlined in as the consideration of six distinct factors), the court appeared to confuse these factors with the bad faith considerations of an assessment of damages under . The Court¡¯²õ eventual conclusion was that if the material was not obtained legally ¡®and with colour of right¡¯, then fair dealing was not available, and the analysis should not even run that far.

Although the Court noted that the Act should be read in light of the modern approach to statutory interpretation in that an act should be read harmoniously as a whole (), Gilbert DJ¡¯²õ analysis separates out TPM circumvention as a separate offence altogether from breach of copyright, as opposed to a method of breach. Whereas another court may have determined TPM circumvention in light of fair dealing, this decision not only appears to take a somewhat backwards stance, but it also .

of strong copyright protection may well be impressed with the decision, but it¡¯²õ important to note that the Copyright Act characterises fair dealing as an ¡®exception¡¯ as opposed to a defence. Such a view is especially pertinent given the facts of the case ¨C investigating an article to check and possibly correct factual inaccuracies would appear to fall squarely within the research provision of .

CCH calls for fair dealing to be interpreted broadly, taking into account the purpose, character, and amount of the dealing; the availability of alternatives, and both the nature of the work and the effect of the dealing on the work. It also makes clear that fair dealing should always be available. Finally, in CCH, the court notes that fair dealing should not be limited to non-commercial contexts, and that the allowable purposes of research, private study, criticism or news reporting should not be given a restrictive interpretation, but that courts should ¡°attempt to make an objective assessment of the user/defendant¡¯²õ real purpose or motive in using the copyrighted work¡± [para 54].

For Gilbert DJ, that assessment incorporated its own use requirements, as he stated ¡°credibility is an issue given the fact that their ultimate reason for obtaining the material in the first place was to challenge statements made therein and the alleged importance in so doing, once received, nothing came of it. Their stated objective therefore is disingenuous.¡± Although he recognises that research and private study should be interpreted broadly, the failure to follow through with attempting to make corrections to the article was fatal to the defendants in this case. Such reasoning seems difficult to comprehend ¨C if the article was unavailable to access, how could the defendants know they had a meritorious claim to have it corrected? It appears that the only answer, in the Court¡¯²õ view, is for users to accept the transaction costs regardless.

Andrew Hunter is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode¡¯²õ Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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In a timely manner, only three days after the of the conclusion of negotiations on the Trans-Pacific Partnership Agreement (TPP), Prof. Matthew Rimmer accepted our invitation and shared few of the hidden secrets behind the agreement as part of IP Osgoode speaks series.

This ¡®blockbuster agreement¡¯¡ªsupposedly a jovial landmark in the sphere of diplomatic international relations¡ªwas diluted with a mixture of uncertainty and secrecy. According to Prof. Rimmer, the TPP is a controversial agreement for several reasons. First, many concerns were raised regarding the involvement of major companies, via special advisory groups and executives, in drafting parts of the agreement. Consequently, the companies allegedly had more influence over the TPP than the legislators since the latter could not review the agreement that was protected (and still is) under the blinds of confidentiality. Second, a few notable countries are not signatories of the TPP (China and Russia for example). The reasons underlying China and Russia¡¯²õ exclusions raise questions regarding the TPP¡¯²õ true nature¡ªis it really a trade agreement or simply, as Prof. Rimmer implied, ¡®the coalition of the willing¡¯ that was established as part of a U.S. global trade strategy.

Much of what we know to date about the TPP was retrieved from . Jamie Love, the director of (KEI), who recently shared?a into the TPP deliberations, alerted that "[i]n many sections ¡­ the TPP would change global norms, restrict access to knowledge, create significant financial risks for persons using and sharing information, and, in some cases, impose new costs on persons producing new knowledge goods."

IP Principles and Objectives

The TPP¡¯²õ IP chapter covers a wide scope of topics and is positioned to change the normative boundaries of IP and, more specifically, of copyright. The traditional approach, as shaped in the U.S. and the U.K., is rooted in the perception of copyright as a means to inspire creation and proliferate knowledge. However, as Prof. Rimmer explains, it appears that the current vision of the TPP, under the influence of the music and movie industries, seeks to transform the normative balance of IP in order to strengthen the owners¡¯ well-fortified rights. It is not hyperbole to define the TPP as a game changer that could have grave implications to the public domain.

A ¡®Mickey Mouse¡¯ Copyright Term Extension

According to Prof. Rimmer, the movie and the music industries have strategically argued for a prolonged extension of copyright terms. The TPP seems to answer their call, as it extends the term of protection to 70 years after the life of the author. This extension will likely have a profound affect in various fields, including Canadian cultural heritage, competition, innovation and the public domain. However, it is unclear if the TPP will include a demand for the revival of copyright works that were previously in the public domain. Prof. Rimmer also indicated that the TPP seeks to for orphan works.

Fair Use/Dealing and Disability Rights

There has been much academic discourse concerning whether the TPP language, in regards to the definition of fair use/dealing, is far too narrow or too broad compared to previous agreements, particularly the , in defining copyright exceptions. The TPP definition will most likely affect the course of this discussion. If the TPP adopts a narrow definition for fair use/dealing, it could set back recent developments in Canada related to the Supreme Court landmark decision in .

Copyright and disability rights stand in the center of recent international progress in copyright law. The ¡ªthe most prevalent¡ªaims to expand the recognition of the rights and interests of disabled people to access copyright protected materials, ending what was known as the ¡®Book Famine¡¯. According to Prof. Rimmer, the TPP makes an effort to recognize the Marrakesh Treaty. However, the Marrakesh Treaty is narrowly limited in scope to the visually impaired. Prof. Rimmer argues for a broader scope that will include other disabilities as well.

DMCA

The TPP seeks to export aspects of The Digital Millennium Copyright Act () and imbed Technological Protection Measures (known as ¡®digital Locks¡¯). Such anti-circumvention measures might endanger the fair use/dealing exceptions. The DMCA is a premature regime that was enacted almost two decades ago, in a pre-search engine and social media era, and is not well designed for current challenges. Stressing the absolute DMCA model as part of the TPP seems unreasonable. It should be noted that the DMCA model may have grave consequences to Canada, which in the past decade have defended its copyright laws against the DMCA successfully.

Protection and Enforcement

Protection and enforcement measures play an important role in the implementation of any international agreement. The TPP includes an arsenal of IP enforcement measures such as criminal offences and civil remedies. However, the TPP's rigid structure does not enable the members of the agreement much flexibility in adapting the TPP into their domestic laws. Prof. Rimmer criticized that the TPP ¡®locks¡¯ a specific model rigidly; it is uncompromising in regards to changes and modifications to the enforcement measures since it requires the approval of all members.

TPP¡¯²õ Radical Vision

Prof. Rimmer concluded his lecture by stating that the TPP agreement ¡®is radical¡¯ not only in its objectives and purposes, but it also changes some of the fundamental doctrines in copyright such as term extension, fair use/dealing, liability issues etc., while diminishing the public domain in the process.

The TPP agreement is indeed a defining moment in the international effort to consolidate IP laws, however, the shroud of secrecy surrounding the TPP is not an encouraging sign. There is the general concern that the leaked terms of the TPP agreement will cause copyright laws to regress and destabilize the delicate balance between authors' and creators' rights to the public domain, thereby doing more harm than good.

The Sum of All Fears

On the eve of posting this blog, The Office of the U.S. Trade Representative (USTR) finally published the?. Not surprisingly, we discovered that the TPP¡¯²õ negotiation leaks were, in general terms, accurate. For example,?the TPP includes a copyright term extension of ¡®not less than the life of the author and 70 years after the author¡¯²õ death¡¯ (Article 18.63(a) to the TPP) as predicted. Obviously, we should read the TPP thoroughly, however¡ªas it seems¡ªit is indeed what we all feared it to be.

Aviv Gaon is a PhD candidate at Osgoode Hall Law School

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Since the end of last year, the Copyright Office has accepted public submissions for the new batch of exemptions. Currently, 27 proposed classes of works are under consideration, and the finalized list of exemptions is set to be announced in the fall. ?Although many of the proposed classes have been either previously accepted or considered, there are several notable additions, including: ¡°¡± and ¡°¡±

While automotive repairs and modifications have been historically associated with patent disputes, the introduction of vehicle software creates a new ambit of protection for manufacturers under copyright law. Much debate between automotive industry insiders, aftermarket suppliers, independent repair shops and car enthusiasts has focused on alterations to the Engine Control Unit ("ECU"), a type of electronic control unit that manages functions of the car engine. ECUs are often modified by car owners and independent mechanics in order to alter performance of and customize vehicles. One example is the modified of The Fast and the Furious fame. Though the film's protagonists?may not exactly typify average car owners, those who want to have their cars fixed by independent mechanics or even personally tinker with them may be prevented from doing so under the current law.

of the vehicle software exemption have argued that modifications to ECU firmware fall squarely under fair use. Further, the use is non-infringing when car owners access, copy and modify vehicle firmware as outlined by of the Act. Conversely, have argued that an exemption would undermine the safety and regulatory standards of vehicles. An unscrupulous mechanic or unwary amateur may weaken vital mechanisms of a vehicle and not only diminish its performance but create additional liability for the manufacturer.

The other new proposed class exemption involves 3D printers. ?Currently, many manufacturers of 3D printers require their customers to purchase proprietary cartridges with approved feedstock; otherwise, the printer is prevented from functioning by technological protection measures ("TPMs"). has proposed that non-manufacturer-approved feedstock should be exempted from DMCA liability circumvention of TMPs that control access to the 3D printer¡¯²õ software. The of this exemption have argued that it would negatively affect the market in at least 3 ways: ¡°(1) it would threaten the value of a manufacturer¡¯²õ 3D printers; (2) it would undermine security protections for intellectual property and confidential information embedded on printers; and (3) it would undermine growth in the overall market for 3D printers and 3D printed objects by placing at risk technological advances enabled by secure, fully-integrated 3D printing systems.¡± While the exemption sought does not considerably differ conceptually from unlocking a telephone or a tablet, it highlights the technological advances and improved accessibility of 3D printing.

It should be noted that in previous reviews exemptions have been granted to a handful of classes; in fact, the last review of 2012 was quite . Although the Library of Congress granted an exemption to permit the interoperability of ¡°jailbreaking¡± application on wireless telephones, it omitted e-readers and tablets from the exemption. Moreover, the Copyright Office decided not to renew the exemption for unlocking wireless telephones through user self-service. The latter decision generated significant public outcry and led to the enactment of the which temporarily reinstated the old DMCA exemption. is up for review again this year.

Whether or not one thinks these exemptions are warranted, the sheer breadth of classes up for review this year cannot go unnoticed. More and more industries are becoming affected by electronic commerce and copyright law. It will be interesting to see how the various competing interests will be balanced this time around.

Anastassia Trifonova is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

The post Out with the Old, In with the New: DMCA Exemptions Under Review appeared first on IPOsgoode.

(of Gowling Lafleur Henderson LLP) moderated the final panel of the day entitled ¡°Piracy & Digital Distribution¡±, in which panelists (of Basman Smith LLP), Steve Teixeira (of Universal Music Canada Inc.), and Osgoode Hall Adjunct Professor (of the Motion Picture Association - Canada) spoke about how piracy has affected their respective industries of sports, music, and film.

Kevin Fisher discussed the unique aspects of piracy in live broadcast sporting events. ?Since the value in a sporting event exists in the broadcast, the piracy in this industry includes satellite signal theft, grey market and free-to-air systems, and event channel streaming online. Individuals can legally purchase a broadcast, set up an event stream on a user generated site, and broadcast the stream to the world. This has also led to a new sub-industry of directory sites that guide users to the pirated streams.

Steve Teixeira began his discussion by asking whether anyone in the room has?ever pirated music, and most of those present raised their hands. However, when he asked how many people had stolen a physical CD, only one hand remained raised. Teixeira posited that this disconnect was the result of how the public values (or perhaps, devalues) the more abstract concept of digital music products as compared to physical products. He suggested that this social acceptance of piracy has serious implications for the industry and provided some insight on how the industry will move forward to work towards recapturing paying consumers.

Sundeep Chauhan discussed the increasing trend of dressing up pirated DVDs to look like legitimate products?and selling them at a slightly lower price point, and the resultant displacement of the legitimate physical product market. He also discussed the impact piracy has had on the film ecosystem. Money taken out of the industry due to piracy has disrupted the ability of film makers to reinvest in the film industry. The trickle down effect of piracy has also resulted in job losses both within the industry and for those with jobs related to film production (such as makeup artists, chauffers, general contractors, etc.).?

All three panelists agreed that litigation against end user consumers is not the goal of rights holders.? After initial attempts to enforce rights against individuals by the music industry resulted in a public relations backlash, content owners realized that it does not make sense to alienate their consumers. It stands to reason that aggressively pursuing consumers and then turning around and asking them to purchase your content was not a viable strategy. Now, the goal is to pursue those who make content available and make profits through subscription fees and advertising revenue. These sites, referred to as ¡°wealth destroyers¡± (Pirate Bay was an oft-mentioned example), drew criticism as they capitalize on the investments of others while drawing away the profits to be gained from those ventures.

The panelists highlighted education as an important resource to combat piracy. Erasing the grey area and shaping cultural values about online theft through education will be a valuable tool for content owners moving forward. Intermediary companies will also require this education. These companies pay for advertising space or are involved with the authorization of purchases on sites hosting pirated content. The damage done by "wealth destroyers" can be reduced, and hopefully eliminated, ?if companies are made aware of the consequences of their participation in piracy.?

Although industries affected by piracy were initially resistant to new business models made possible by technological advances, entertainment industries are increasingly embracing emerging business models. The goal of these companies is not to resist innovation, but to ensure that the technology developers and entertainment industries collaborate to improve their products and services. For example, the key to the future use of technological protection measures (TPMs) is to reduce the restrictions placed on users while maximizing protection against would-be pirates. In the past, implementing TPMs often meant that individuals could not use their legally purchased content in legally protected ways?such as?format shifting. Now, TPMs facilitate new business models like iTunes, allowing rights holders to protect content and feel secure about releasing it online while providing their product to the consumer.?For example,?providing a time-limited movie rental at a lower price in addition to a purchase option.?The use of these services allow further opportunities to meet the needs of different consumers by allowing for such things as differentiated pricing options.

It is clear that the entertainment industries are working to embrace technological changes and the new methods in which they can provide content. Teixeira noted that as time goes on, music streaming may become the way of the future. Whether it is through subscription or advertising models, the hope is to eventually increase revenue streams?as these services build up a consumer base. Fisher suggested that with the right technology, live sport streaming can cut out the pirates as well as divert more revenue away from the middle men and directly back to content creators. Chauhan indicated that filmmakers want their content on as many platforms as possible and to work with consumers to provide options catered to their needs, making it just as easy to access legal content as it is to find pirated content.??Perhaps embracing the very technology that initially allowed bootlegging to run rampant will end up saving these industries from piracy.

?Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School. ?

The post Embracing Technology: A New Hope for Digital Distribution appeared first on IPOsgoode.

Stakeholders from all of the above-mentioned groups and more gathered at the in Indonesia, October 22-25, 2013, to discuss all manner of issues related to including online surveillance, privacy, big data, online child protection, youth perspectives, cybersecurity and cybercrime, freedom of expression, ?and?access to information, human rights in context of the Internet, jurisdictional conflicts and harmonization, international development, and of course, intellectual property (relating mostly to copyright and domain names). First convened by the United Nations in 2006, the IGF is the world's largest and highest-profile conference wholly dedicated to the betterment of the Internet and its continued governance and preservation. With no binding goals, negotiations, or decision , the ostensibly affair provides a platform for otherwise-rare direct dialogue between multiple cross-sections of society and mass cross-pollination of ideas, general principles, and best practices, which can be taken back by members to be used in their own decision-making processes.

This year, the Indonesian government¡ªwhose national population includes over 63 million Internet users¡ªhosted approximately 2000 delegates from 111 countries, who explored this year's across 135 workshops, focus sessions, open forums, roundtables, and panels (with more participating remotely and millions checking in on Twitter). Organizers made a concerted effort to integrate into the sessions more tangible policy outcomes that participants could take away with them, as well as attention to initiatives. Meanwhile, ¡° ¡± and ¡°¡± constituted an underlying all discussions, while ¡°¡± and ¡°¡± infused electric static into the air.

As providing complete coverage of all news, events, discussions, and ideas that emerged during the week-long IGF within one post would be impossible, this article will restrict itself to highlighting certain issues directly encompassed by intellectual property law, particularly those explored in a titled, ¡°¡±.

1. Square Laws in Round Processes: Has Copyright Policy Gone Awry With Respect To Technological Reality?

This question challenges the notion that current and trending copyright legal frameworks are at all suitable for the way Internet infrastructures and associated technologies work today, suggesting increasing misalignment between laws designed in a more analog world and technological processes where copying is strictly incidental to otherwise legitimate use of the work. Glenn Deen of NBCUniversal asserted that technology should be ¡°policy-neutral¡±, as in developed without any particular policy favoured or hindered by or coded into the technology itself. In other words, copyright policies should be created such that they fit the technology, rather than the other way around. Other panellists agreed but maintained this is currently not the case¡ªtechnology has not been made policy-neutral, and through phenomena such as institutional capture of standards fora, it has in fact been designed to promote and enforce certain policies (examples of this are technological protection measures (TPM) and digital rights management (DRM) systems). , argues , takes the Internet for granted and distorts its basic architecture, such as by turning neutral online intermediaries into unofficial law enforcement entities with respect to user behaviour.

2. The Librarians Strike Back: This Isn't the Copying You're Looking For

of the made a compelling case for copyright law to pay closer attention to the kind of copying involved in different situations. Sharing others' concerns over unbalanced copyright frameworks, she explained how in a library research access context provides a clear illustration of copyright laws not fitting an Internet environment. According to Broad, text and data mining is one of several ¡°productive, non-harmful uses¡± that operated freely outside the realm of copyright in a print environment, but are now captured by copyright frameworks purely through the incidental copying that occurs as part of Internet-enabled technological processes today. She compared licensing text and data mining, in essence the extraction of information, to ¡°placing a toll on the information highway¡±.

While Article 5.1 of the exempts "[t]emporary acts of reproduction...which are transient or incidental [and] an integral and essential part of a technological process,¡± in transmitting content between computers, this is a narrow exception that will not encompass all cases that require protection, such as text and data mining. Furthermore, as Broad points out, such a framework presumes infringement unless proven otherwise; one must make an exception rather than find the use not infringing at all to begin with.

Lastly, e-books and their associated licensing regimes present ¡°a huge challenge¡± in terms of access for consumers, academics, public libraries, and the visually impaired, among other user groups. With respect to the visually impaired, users must overcome obstacles by acquiring a right to remove from the content (recently enshrined in the universally lauded , the first-ever agreement to limit rather than expand copyright), and by possessing the technical ability to actually remove the TPM and access the content through assistive devices. In these respects, some at the IGF spoke of licensing regimes ¡°defeating the purposes of the Internet¡±, particularly in the context of , where public libraries can play a valuable role in providing access to information.

3. Say It to Belie It: The Language of Limits and Exceptions in Copyright Law

One current problem that IGF 2013 participants identified with current copyright law is its unbalanced nature: in many jurisdictions and on an international level, rather than balancing copyright against user/access rights as if the latter were of equal weight, laws provide for overarching copyright with specific exceptions that are explicitly carved out. The starting point of the law is not one where the limits and exceptions hold the same weight as copyright; this is reinforced by their being referred to precisely as ¡°limits¡± and ¡°exceptions¡± to an otherwise default backdrop of established copyright. Speakers suggested instituting a new international norm that would conceptually elevate rights of access and other ¡°limits¡± or ¡°exceptions¡± to the same level as copyright in order to better protect them, as seen in the Marrakesh Treaty. As asserted, ¡°We often talk about copyright substantive rights...and having carve-outs for limitations and exceptions.... [W]e should dispatch with that language and think about them as equal partners balancing each other.¡±

4. Meanwhile at WIPO: Additional Issues & Initiatives

Initiatives and ideas beyond those outlined above were featured in IGF 2013 presentations. These included - according to WIPO legal officer Paolo Lanteri - the ; a WIPO study on and a WIPO-compatible, world-standardized licence (to be released within the next few weeks). Regarding the latter, Ari Gema of Creative Commons Indonesia pointed out the need to educate the general population on the concept of copyright before introducing the Creative Commons license, hinting at cultural and regional differences in the significance and relevance of copyright, and the potential implications for corresponding law, regulation, and policy.

Lest the Marrakesh Treaty be a one-time in terms of internationally-accepted limitations to copyright, the IFLA is working on a , to establish ¡°a binding international instrument on copyright limitations and exceptions to enable libraries to preserve their collections, support education and research, and lend materials¡±.

Lastly, in keeping with the spirit of IGF, a panel titled, "" that "multistakeholderism" was the preferred approach to formulating internet copyright policy and frameworks going forward, despite drawbacks such as being potentially inefficient, time-consuming, or inconclusive.

5. Say ÄãºÃ?to §ñ§Ù§í§Ü.?????(aka Internationalized Domain Names)!

In a palpable boost to principles of multilingual access and globalization of the Internet, CEO Fadi Chehad¨¦ revealed at the IGF 2013 opening ceremony, to rousing applause, that Arabic, Russian, and Chinese i were delegated to the Internet root for the first time. This means that one can now register websites ending in ¡°dot [insert Arabic, Cyrillic, or Chinese characters here]¡±, resulting in expanded online accessibility for those who use technology¡ªincluding keyboards¡ªexclusively in one of the three languages added. This will likely have an impact on trademark law in different parts of the world, in the context of branding and domain names, although trademark as managed by the (TMCH) currently provide for ASCII (English and Latin) characters alone.

Logging Out

As mentioned above, this was but a peephole into the ongoings of IGF 2013. Even live, it could only be experienced in self-tailored slices given how much was going on at any given moment. For those who are interested in learning more, are available on the IGF website and further comments and insights abound on the Twitter backchannel, not to mention the multitude of papers, articles, blog posts, updates, and analyses written throughout and in response to the forum. If we care about preserving, protecting, and bettering the Internet as we know it, the least we can do is start by getting to know it.

Cynthia Khoo is a JD Candidate at the University of Victoria. She is currently completing an exchange semester at the National University of Singapore, Faculty of Law.?

The post When the Internet Has a Party, Everyone's Invited: IP Law Issues at the Internet Governance Forum 2013 appeared first on IPOsgoode.

There were significant international tensions at play in this negotiation. With of print materials currently in an accessible format for visually impaired persons (VIPs) and the print disabled, this treaty represents a significant educational and social benefit. In the international sphere, the ability to access these materials may represent a human rights issue; Article 13, the right to education, and Article 15(1)(a), the right of everyone to take part in cultural life, of the (ICESCR) are both important considerations for treaty-makers and nations.? On the other hand, the rights of the copyright holder are supported by several international agreements; Article 9(2) of thedictates the ¡°three-step test¡±, which limits the ability of nation states to provide exceptions to copyright.

The Canadian provides exceptions for those with ¡°perpetual disabilities¡±, where? ¡°perpetual disability¡± (with respect to print works) is defined as ¡°a disability that prevents or inhibits a person from reading a literary¡­ work in its original format.¡± Section 32 states that reproduction of a work in an alternate format for persons with a perpetual disability is not a circumvention of copyright. Canada, however, is one of fewer than 60 countries that currently limit copyright to promote access for VIPs and the print disabled. Even in countries where limitations are allowed, these exceptions often do not cover the import and export of a converted work, even between countries with similar exceptions. This leads to costly negotiations between governments and rights-holders, which further limits access. ?This treaty may not only provide an international standard for limitations, but also represent an end to the complicated licensing process that is currently in place.

A significant issue in the meeting was the exception allowing for the circumvention of technological protection measures (TPMs) for VIPs and the print disabled. TPMs allow copyright holders to control how their work is accessed and used in an online environment. ?Specialized technologies can prevent copying, printing, or making alterations. TPMs can also prevent the use of certain applications - for example, text-to-speech software - a limitation which is clearly devastating for people with print disabilities. Section 41.16 of the states that the circumvention of TPMs are not prohibited for the sole purpose of making the work accessible to persons with perpetual disabilities. Article 11 of the , however, protects TPMs internationally. This provision ensures that contracting nation states provide adequate protection and legal remedies against the circumvention of technological measures for copyrighted works.

Midway through negotiations, a proposal to provide exceptions for the visually impaired and print disabled read as follows:

¡°A Member State/Contracting Party shall ensure effective and necessary measures in accordance with that Member State/Contracting Party¡¯²õ national copyright law regarding technological protection measures such that beneficiary persons are not prevented from enjoying limitations and exceptions under this instrument/Treaty.¡±

This proposal reached a near-consensus in its initial stages.? The United States, however, had proposed a limiting clause on this exception which would allow VIPs and the print disabled the benefit of this exception only where ¡°appropriate and effective protection measures have not been taken.¡± This response was expected, as even before negotiations had began the United States and the European Commission appeared to be .

Late on June 25^th, 2013, a consensus was reached on the treaty provisions. A was issued and all the articles were adopted. Both those lobbying for and against broad exceptions appear to .

A wide-ranging international treaty now appears to be a certainty; however, actual implementation by nation states is still at issue. Supporters must now fight to ensure that this treaty is ratified and enforced. It seems that while these negotiations concluded on June 28^th, conversations regarding copyright exceptions and increasing access for the visually impaired and print disabled are likely far from over.

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Music Canada also runs the (i.e. certifying when a record has made platinum). Although famous for their efforts to strengthen copyright laws, copyright is not all that Music Canada does. For example, one of the initiatives Graham mentioned is in the area of ticketing/towing bylaws. When musicians play in clubs in Austin or Nashville, there are dedicated ¡°artist loading zones¡± where the artists can park and load their equipment. The same is not true in Toronto. Many small clubs have very limited loading zones, and limited nearby parking. A single parking ticket can wipe out an entire night¡¯²õ profit for some musicians, making it very difficult to practice their craft.

Another Music Canada concern is improving relations between the City of Toronto and the music industry to a similar level that the film industry has with the city. ?For instance, the helps arrange location permits, police presence, emergency medical services, tax credits, and other services for film and television shoots on fairly short notice. In comparison, no such program exists for the music industry.

For example, Graham told a story about how the held in Toronto attempted to obtain a permit for . The planning process was initiated 8 months before the concert date, and the final permits to use the square did not come through until 3 days before the concert. As one might imagine, by that point the acts had been booked, media announcements had been made, etc. The organizers were taking a massive risk - had the permit not come through, the concert would have had to be cancelled, and the organizers would still have been on the hook for all costs ¨C without the associated profits.

¡°Music is one of the most open formats in the universe, for all the credit they get for it.¡±

When asked what the biggest accomplishment from the recent Canadian copyright reform initiatives was, Graham didn¡¯t cite digital locks or TPM protection, or the new part of the legislation targeted at pirate sites. The greatest accomplishment, he said, was the fact that we passed a bill at all. While there may be disagreement on the content of the reform, one thing many agree on was that copyright reform itself was badly needed. After three previous failed attempts, the fact that Bill C-11 passed in a global political climate where other copyright focused bills crashed and burned (e.g., and ), was nothing short of miraculous. ¡°Our government passed a bill when SOPA and ACTA failed.¡±

He pointed to that stated that if the government enacted the bill, DRM would ¡°lock up¡± content. It has been months since bill C-11 came into force, even longer since it was passed, and this assertion has not been true, at least with respect to music. To this day, music remains one of the most open, consumer-friendly content industries, a fact that Graham thinks the music industry does not get enough credit for. Today, music is sold in one of the most open, flexible formats available. The restrictive DRM you may find on other types of media is not present here. When you buy a song on iTunes, or elsewhere, you can play it on any device you own, anywhere you want, at any time you want.

There are no complicated digital hoops to jump through in order to satisfy a DRM mechanism or prove that you have the right to use the content you paid for. There is no need to purchase a new device that supports the DRM format of the file you purchased. Moving a song from your computer to an iPod (or a cell phone, laptop, MP3 Player, tablet, etc.) is as simple as cutting and pasting a file. It is truly a consumer¡¯²õ dream.

There were in the music industry, but they were uniformly abandoned. It all comes down to history and market expectations. When the CD was introduced back in 1982, it was in a DRM free format. Conversely, as Graham notes, ¡°the first DVDs were locked up, and people accepted that. But how many times do you re-watch a DVD?¡± It¡¯²õ hard to watch a movie while jogging, or when you¡¯re at work. But the same isn¡¯t true for music. Many people listen to music throughout their entire day, playing the same songs over and over again. They take their music with them everywhere they go. Such behaviour requires a level of flexibility and convenience that would be very hard, if not impossible, to achieve with DRM protected content.

But it¡¯²õ not just consumers that benefit from the openness of the music industry, its other artists too. ¡°When you publish a song, that is fair game to create a cover.¡± When was the last time anyone tried to create a cover of a movie? Or a TV show? Or even a book? Well, with a song, you can.

Another thing Graham says the Canadian music industry deserves credit for is their response to the problem of piracy. While the to sue consumers in the US, these types of lawsuits are notably absent in Canada. And Canadian consumers mainly have Graham to thank for that.

¡°My policy was, we shouldn¡¯t be suing people while we¡¯re waiting for legislation.¡±

When Graham took over CRIA (as Music Canada was then known), there were a few brief lawsuits that went through the federal court system. This resulted in that basically stated that downloading music was legal in Canada. These lawsuits were appealed to the Federal Court of Appeal, not because of an intention to follow through with suing their customers, but as Graham noted ¡°we simply had to appeal it to set the record straight.¡±

And they eventually did. The Federal Court of Appeal ended up . At that point, the music industry could have continued the lawsuits against the individual downloaders directly, however, they chose not to.

¡°The US did it to make a point. Because they had been polling people and practically everyone thought that downloading was OK. The objective was to make the point that, NO, it is illegal.¡± Similarly in Canada, there was pressure from a lot of sources, including independents and artists, to initiate a similar series of lawsuits, or otherwise send the message that downloading is illegal. But Graham decided to take a different route. ¡°My policy was, we shouldn¡¯t be suing people while we¡¯re waiting for legislation.¡± Graham instead decided to focus on lobbying the government to pass copyright reform. It was hoped that a renewed message from Parliament, in the form of the passage of a new copyright bill and all the media coverage surrounding it, would send a message to Canadians that downloading music without compensation was not appropriate. To continue a lawsuit against consumers while lobbying for legislation would taint that process, attract undue notice and probably wouldn¡¯t even work to curb downloading ().

Today, there are more ways to consume music than there ever was. From buying a CD in stores, to single song online retailers like , to digital radio services or even streaming subscription services like and , it has never been easier to get the music the music you want, how you want it, whenever you want.

¡°They are the canary, the first down the coal mine.¡±

The music industry has come a long way since it began. Usually it is on the forefront of the culture industries. Music was the first industry to switch to digital with . The MP3 player was the first digital media player. Digital download stores like iTunes started with music sales.

But with this innovation came its own set of problems. Graham joked that ¡°they are the canary, the first down the coal mine.¡± Music had to forge its own path. And, for the most part, it has succeeded.

2013 marks the first year in over a decade that , and have even risen slightly. When asked for the reason for these changes, Graham cites many factors. Copyright reform is an issue, not just for any advantages the law provides, but for the fact that the law was actually passed. Canada is a law abiding country, and when the government sends a message that downloading is illegal, people take them at their word.

Digital music now , and labels are just getting better at marketing into this space. There are also more legal music services in Canada than ever before. As legal options for purchasing music are becoming easier and more convenient, consumers are changing their purchasing habits to include more paid music and less illegal downloads. But things are still not ideal for the music industry.

¡°There was a time when even if you never sold another CD anywhere else in the world, you could still make a living in a middle class life [in Canada].¡±

The addition of more legal services in Canada is a good thing, but they are contributing a very minute portion to the overall revenue picture as yet. For example, streaming services, at least as they exist today, do not represent a sustainable model. This unsustainability is due to the fact that streaming services usually only pay out fractions of a penny per stream.

He points to a now famous exchange between the band Grizzly Bear and their fans. In it, the band emphasises the fact that . While this generated the usual ¡°your music stinks¡± or ¡°go on tour¡± comments, many fans were also interested in how they could help. For those who are unaware, Grizzly Bear is a somewhat well known indie music band. They have played sold out shows at Radio City Music Hall yet .

¡°We have to build this back up for our young artists. They are aware that [older musicians] used to have homes, but now they can¡¯t afford that.¡± Graham notes that many young artists are missing the same benefits given to artists in music¡¯²õ heyday. ¡°There was a time when even if you never sold another CD anywhere else in the world, you could still make a living in a middle class life [in Canada].¡±

One of the goals of Music Canada is to ¡°create an environment where you can earn your living as a musician.¡± There are many ways to do this that fall outside the traditional realms of copyright and digital media. For example, ensuring that there areartist loading zones for bands as mentioned above. Cities and governments can also provide tax incentives to record albums in Canada, similar to the .

And it¡¯²õ harder to earn a living as a musician today than it was a few decades ago. One of the main problems, of course, is copyright infringement.

¡°The musical middle class is at risk.¡±

Of course, copyright infringement has an effect on the industry, Graham noted. But the conversation needs to get away from copyright infringement or, as used in the popular vernacular, piracy. People don¡¯t like to talk about piracy, but people care about artists. ¡°I think the conversation needs to switch to¡­ the effect of the digital age.¡±

One of the first policies Graham initiated as soon as he took over Music Canada was no lawsuits. So how else could they mitigate piracy? One way is to go after the pirate websites themselves. They do this by attacking their sources of funding. that advertise on pirate websites, and like MasterCard, Visa and PayPal.

When asked what message he would have for Canada¡¯²õ youth, Graham¡¯²õ message was simple: ¡°support your artists.¡± As noted, there are fewer artists today that are able to own their own home and make a living in the industry. ¡°The musical middle class is at risk.¡± Music plays a big part of our lives. Imagine games without music? Movies without music? When major events in your life happen, songs are playing. ¡°Understand that the creation of music is not easy.¡± There are thousands of good jobs, where people go to work with nothing other than music and making careers work for people in their mind. ¡°It will help you get through your depressions; it will help you get through your joy. To the government, it will create jobs, help the tax base and bring tourists to our great nation. Music can help you, and you can help music.¡±

Mark Kohras is an IP Osgoode alum and the current Features Editor for IP Osgoode. For more coverage of Graham Henderson and Music Canada, see our blog on Graham¡¯²õ .

The post How Music Can Help You, And You Can Help Music ¨C An Interview With Graham Henderson appeared first on IPOsgoode.

These exceptions were granted by the Library of Congress in accordance with DMCA?, which allows the Library to set exceptions for a period of three years.? Although the exercise of the power is not unusual, the list of exceptions seems to be lacking an overall theory as to which digital protections the public should be allowed to circumvent.

The exception for ¡°¡± are justified on compassionate grounds.? This exception allows persons with disabilities to disable any measures that prevent an electronic literary work from being read aloud or otherwise assisted read.? This section makes electronic books (eBooks) available to be read on devices which are used in assisted reading, in order to make eBooks more accessible to people who require the assistance.

The exception for ¡°¡± appears arbitrarily limited.? This exception allows users to use computer programs which allow wireless telephones to run software that it was previously unable to run.? The same exception does not apply to tablets.? Proponents of this exception argued that this ¡°¡± of devices was within the US definition of?.? The reason that the Library of Congress rejected the proposal that the exception should apply to tablet devices was because the class of devices ¡°¡±.? If that justification appears to be an odd reason to reject the application of this exception to tablets, I would suggest that Library of Congress may simply not have had enough data on tablets to feel comfortable extending the exception.

Those who advocated that the exception was justified by fair use suggested that the exception would have a negative impact on the sale of mobile telephones.? The Library of Congress was able to reject that principle on the basis that the data on mobile phone sales since 2010, when the exception was originally enacted, did not appear to have been impacted by the DMCA exception.? Perhaps tablet devices were simply too new in the market for the Library of Congress to draw the same conclusion.

But as confusing as the actual exceptions are, the reasoning behind the Library of Congress rejecting certain exceptions is even less principled.? The Library of Congress rejected the exception for ¡°time-shifting¡± of DVDs purchased legally for non-commercial personal use.? ¡°Time-shifting¡± refers to making digital copies of DVDs, specifically to allow these works to be viewed on devices which lack DVD drives.? The Library of Congress said that ¡°no court has held that 'space-shifting' is a fair use.¡± ?While I agree that the statement is technically true, the Library of Congress was presented with?.? In that decision the court said:

¡°When these factors are all weighed in the "equitable rule of reason" balance, we must conclude that this record amply supports the District Court's conclusion that home time-shifting is fair use.¡±

Is time-shifting (recording) television shows really theoretically different from space-shifting?? The Library of Congress appears to make a?,?but, in my opinion, missed the point.? They have the legislative authority to create exceptions to digital management circumvention laws.? If their power was only limited to codifying existing exceptions in law then their power is redundant.? They appear to be unwilling to consider the fair use analysis presented to them by the proponents of this exception, and instead simply rely on whether or not courts have already made space-shifting an exception.

Canada is about to adopt its own section on??into its Copyright Act. ?Hopefully Canada¡¯²õ exceptions to the law will be more principled and consistent than those in America.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.

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