Cineplex has rapidly expanded in the last few years beyond acting as a plain film exhibitor. With a constantly growing portfolio of activities under its wing, the world of the legal department is massive. I worked on files relating to e-sports, liquor licensing, real estate, public authority procurement, media sales, trademarks, copyright, contra agreements, popcorn flavouring production, securities and privacy law to name very few. If it looks as though the intellectual property topics take precious little room in that shortlist, you’d be right. In-house counsel roles rarely get to focus on one area of the law, and everybody’s desk at any given time has an enormous stack of different items for their attention. It’s never quiet, but it can get very busy, as was the case when I arrived.

My very first day at Cineplex was during the closing stages of a multi-million dollar deal to purchase one of the largest e-sports companies in North America. Although Cineplex will employ outside counsel to work on much of these deals, there are still a thousand things to be done to ensure a deal is properly concluded. Before anyone in the office could even take a breath, another multi-million dollar deal was in its closing stages. All hands were on deck!

Heading into the placement, I had been given notice that, compared to some of the other placements in Osgoode's , my role would not be focused so much on IP, but would be mirroring the workload of the other lawyers on staff. This is certainly true, and bears mentioning for any other students considering this placement. That said, I cannot feel anything other than benefiting from this, as I was exposed to multiple areas of law, and was able to add significantly to my skill�� set as a lawyer. That said, when IP jobs did come into the office, they were generally dropped at my desk. These included procedural tasks like cease-and-desist letters, but ranged up to substantive research in service of a licensing problem. I found myself drafting memoranda for circulation either within the legal department, or for company-wide circulation, which requires a new set of skills. Rather than presenting IRAC-style information, you’re producing a document with colour and graphics that is designed to draw the eye to the relevant elements, while breaking down the law into digestible chunks.

One of the most interesting roles to come my way was actually related to municipal zoning regulations. Although I could never have imagined taking an interest in this before, a request to research Toronto’s bylaws led to a national comparison as the company developed its next big venture, The Rec Room. This project involves building massive licensed amusement complexes across Canada, with a huge range of activities in mind. Nothing on this scale has been attempted before, and so anticipating the approach of a municipality to a proposed multi-purpose licensed business required research far beyond a simple reading of the law. It became a question of strategy, and looked at areas like Criminal Code gaming provisions and provincial liquor laws. The answers provided to these kinds of problems are not a simple ‘yes’ or ‘no’, but become nuanced and rich with context. As a result, the research you provide as a lawyer at Cineplex has real-world effects, and, most importantly for someone whose legal efforts have only been (literally) academic, it has value.

The role of in-house counsel is not one that law school traditionally positions you towards. Your role is often more akin to that of an advisor, and litigation is generally handled by external counsel. This means that lawyers at Cineplex become much more entwined with the business, and Cineplex is an extremely dynamic, fast-moving, and exciting one at that. As was noted to me on my last day, “It’s nice to be the client.” It’s certainly a career path I’d be very happy to take.

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������������dz���’s 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 ������������dz���’s 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 ������������dz���’s is that under the court’s 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 – 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’s 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’s 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’s 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 – 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’s 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 – 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’s 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’s 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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The Canadian broadcasting and telecommunications industry is subject to a of tariffs governing a myriad of rights, all collected by dozens of Collective Management Organizations (CMOs). Unlike��the US, which has continued with a remuneration system based on an anachronistic principle: commercial radio play has that excuses users (like radio stations) from paying a royalty to performers and makers of sound recordings. Such thinking dates back to a time when people actually bought music in the form of CDs or vinyl records, instead of just streaming it. The right to remuneration for performers and makers of sound recordings is guaranteed as part of the , but the US has not acceded to this WIPO treaty, though the proposed changes could��indicate an intention to fulfil its obligations.

Canadian artists are about the paltry sounding 10c per 1000 plays that webcasting services like Songza*��might pay to Re:Sound under . Particularly so when��compared to the roughly $1.10 per 1000 plays paid out by similar services in the US. However such an comparison��paints far less than the full picture – aside from the Re:Sound tariff, a separate rate is also paid by webcasters to for the composition. That’s not to say that the Canadian rates always result in ‘fair and equitable’ remuneration, but it does at least address the relevant stakeholders in a sound recording of a musical work, which is one of the areas where the US system appears to be fundamentally broken.

In truth, addressing the remuneration issue can’t promise to fix the problem of artists and songwriters being paid fairly for their work. The new digital media economy is a fundamentally different landscape that requires some radical thinking to navigate. Some�� to demonstrate how a healthy payment can easily be soaked up before it even reaches artists. Still, the US report promises to begin the sisyphean task of adapting the royalty regime to try to keep up with the pace of change.

Does this report have any significant impact in Canada? Possibly. ����have speculated that because the absence of a remunerative right for radio play in the US means that Re:Sound does not include US-based works in its repertoire.��This means��the commercial radio tariff here is calculated to only account for recordings from countries party to the Rome Convention. This is a significantly smaller group of works. For example, if US-based works account for roughly, say, 50% of what is played on radio, then the tariff is calculated to be about half of what it might otherwise be simply because half of the musicians and sound recording makers do not to��need receive any compensation from Re:Sound. A remunerative right in the US would likely trigger a reciprocal obligation, which is pretty much already guaranteed with the impending ratification of the . This means��tariffs would be calculated to incorporate a much larger body of works, which would likely result in a significantly higher royalty determination than broadcasters and streaming services are currently paying. If the tariffs are discounted at a (theoretical) rate of 50% due to US repertoire exclusion, then inclusion would logically merit something close to a doubling of the tariff.

In the meantime, Canadian performers can reflect on the upcoming judicial review for Tariff 8, in the hope that their royalties amount to more than a share of 50% of 0.01c every time someone enjoys the fruits of their labour over a webcasting��service. It's also worth noting that��although a right of remuneration exists for internet-based services in the US, the equivalent tariff in Canada ()��was��based on the commercial radio tariff (), and also appears to incorporate at least some of that aforementioned repertoire discount. Tariff 8, however, only covers a period of three years, and was determined with some serious evidentiary problems during the hearing process. Future certifications from the Board in this area are likely to rise.

There's much, much more to be said about Tariff 8, and hopefully this topic will be revisited in serious depth as the judicial review works its way through the courts. Stay Tuned.

*note that Spotify is not included as a webcaster, and is subject to a separate tariff as a fully-interactive audio website which is set at a higher rate than Tariff 8.

Andrew Hunter is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.��

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Following effusive praise from as ‘one of the leading architects in IP’, and an introduction from ��in which we were reminded that Justice Rothstein’s exposure to IP had only begun in earnest after his appointment to the Federal Court in 1992, Justice Rothstein took to the podium. More information on his background and career can be found .

With talks from previous years taking in topics like the Copyright Pentalogy, or the art of litigating IP at the Supreme Court, the focus of the day was really on the passage of a case up the appellate ladder, and how the technical savvy of the judges filtered away to generalism as a case rose. Justice Rothstein elaborated about how trial judges at the Federal Court (where the majority of IP cases will begin) frequently come from an IP background themselves. As such, judges are not only closer to the factual record, but are also more likely to have some degree of expertise themselves. Beyond this, he explained, expediency plays less of a factor than at the appellate level, and so trial judges frequently enjoy greater access to counsel, and, with that, more time to develop an understanding of the topic.

The appellate courts are populated by a more generalist breed of judge, which is no bad thing. Citing article from Chicago’s 7^th Circuit Chief Judge Diane Wood, he noted that generalist judges can benefit from experience with a wider variety of legal issues, leaving them able to make connections between the technical subject matter and analogous areas of law to ensure that the overarching principles at hand are not ‘lost in the forest of technical detail’.

This generalism, then, is reflected in the standard of review that the Court has been setting for IP, with a high level of deference paid to most of the findings of the various administrative bodies that govern many of the issues that occur in IP. Post-Dunsmuir, we see reasonableness applied to the findings of administrative tribunals for issues of fact, mixed fact and law, and even some questions of law, with a relatively restrictive reading of when to apply correctness. However, Justice Rothstein was quick to stress that he hasn’t necessarily been seeing eye-to-eye with the Court in interpreting how to apply this standard. In , for example, he advocated unsuccessfully for a restriction of the deferential standard to cases in which there was a strong privative clause. Conversely, in , he suggested that the court had seemingly applied ‘reasonableness’ in name only when they found that the Copyright Board’s application of the ��fair dealing factors was ‘unreasonable’, leading to some tension between the Copyright Board and the Court.

It seems that the Court is still trying to figure out exactly how the standard of review should be defined here, and whether the nature of the tribunal requires an application of the standard of review analysis in every case, or whether a single standard can be etched out that might apply consistently. Justice Rothstein made no bones about the fact that he is ‘no fan of the standard of review industry’, but didn’t appear to have a solid alternative to suggest either. That said, we were reminded to keep an eye on prima facie unrelated developments in the law outside of IP, citing the recent����decision as one that may shape the future of the standard of review for cases dealing with factual matters, or ones of mixed fact and law.

The main impression that I received here, was that Justice Rothstein’s idea of the need to display deference was very much connected to the difference between generalism and technical expertise. Answering a question from Professor , he noted that he would have dispensed with expert evidence in a trademark case regarding confusion, as the notional ‘reasonable person’ (a ‘casual consumer somewhat in a hurry’) can easily be role-played by a judge (or any lay-person, for example). On the other hand, in a case like , the notional ‘person having ordinary skill in the art’ is, by definition, an expert in their field relative to a generalist judge, and so expert evidence and assistance is invaluable to the Court. Perhaps this signals a desire for separate standards of review to apply to each of the various disciplines of IP, with respect for the subject matter at hand.

Although this is Justice Rothstein’s final year at the Supreme Court, he has been an invaluable voice in IP, writing many of the Court’s decisions on the area. Whichever direction the court takes after the end of his term, IP enthusiasts can look back on an era in which an unprecedented number of issues have been decided at the Court. Hopefully, Justice Rothstein will have the opportunity to address a few more before that day comes.

Andrew Hunter is an IPilogue Editor and a J.D. Candidate at Osgoode Hall.

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The US����(1998), in addition to increasing criminal penalties for infringement of copyright material, offers a mechanism of ‘Online Copyright Infringement Liability Limitation’ by which service providers may escape criminal penalties if they are compliant to copyright owners’ demands to remove infringing content. Such demands are made simple to file, but nothing short of immediate compliance is required.

So who qualifies? The act defines a service provider as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received”, thus ensuring a content-neutral stance must be adopted by the service provider in question. Further limitations are granted based upon the variety of service being provided (with the act enumerating a total of four categories of service provider). s.512(c) provides that, for services that direct information at users (websites being the most common example of this), the following three conditions must be met to qualify for limited liability:

1. The provider must not have the requisite level of knowledge of the infringing activity, as described below.
2. If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
3. Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material.

The website ‘Grooveshark’ is a����(UGC) site, in which music is uploaded to the service via its members. At issue in this case��was the allegation from Universal Media Group that although the website was complying with requests to remove infringing material, it had not only express knowledge of infringing activity, but the company was built by encouraging employees to upload infringing material in order to build enough content to attract traffic to the site.

The court found Escape (Grooveshark) liable on three counts for copyright infringement: directly liable for direct infringement (volitional conduct by the directors and employees of the company), and secondarily liable for the actions of its users. Secondary infringement has no statutory basis for a finding of liability, although after�� the common law in the US gives room to find a defendant liable if there is ‘just cause’. In the case of Grooveshark, this is easy enough to ascertain: the company was found to have directly encouraged users to upload violating material, and provided the means to do so. Furthermore, it was evident that Grooveshark was raising revenue from advertising on the site, which would also qualify a failure on the second point��above.

Canada has its own Safe Harbour provision in the��Copyright Act��under��, although in a much more simplistic form. It��offers service providers��an escape by deeming any person that only provides the means of telecommunication necessary for another person to communicate the work to the public to have not communicated the work to the public themselves (which would be the basis for infringement). Thankfully this has received��, who reasoned that the service provider exception could only apply to participants in a telecommunication who only provide “the means of telecommunication necessary”, and remain strictly a conduit, in which case liability is avoided. This requires a strictly “content neutral” approach to hosting services, in which any knowledge of the actual content could provide the basis of liability. For the purposes of Grooveshark and other UGC websites, this offers similar grounds to the conditions of the DMCA “Safe Harbor”.

In a nutshell, although we don’t have a specific statutory scheme here in Canada, the failure to remove infringing content from a server or website can be taken as evidence of authorization, though it is not considered as determinative as in the US. While the US system operates on a “notice and takedown” basis (in which receipt of a notice can potentially provide the basis for liability), Canada divorces the liability from the remedy, so that����(see ss. 41.25 and 41.26). That’s not to say that Grooveshark would escape a finding of liability in Canada, but for service providers who operate in good faith, the threat of being found secondarily liable of infringement is not present. In an era where US sites are being subject to��, one can argue that the Canadian playing field offers a good deal more stability for service providers than our neighbors��to the South.

Andrew Hunter is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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