In the previous regime, Canadian cable companies simply picked up the free signals from local broadcasters and provided them to other markets. But the 2010 CRTC decision was intended to change this by making it a requirement for cable companies, and other distributors who are not the originators of some of their content, to have the consent of the originating broadcaster. This new regime is a change from the distant signal regime that operated previously, and applied when a signal was to be carried to a non-local market.

The entire situation could be affected by the result of the Supreme Court case (judgement not yet released) looking at whether the CRTC has the authority to give local television stations the ability to negotiate the terms under which cable companies can distribute their signals. The value for signal that was considered by the CRTC has caught the (linked site requires a subscription). Although they are currently able to recover under the distant signal regime, it appears to be their hope that it would increase their income from these signals.

So far, the Federal Court of Appeal , stating that the CRTC, under the Broadcasting Act, is in the position to allow a value for signal regime. If this decision is upheld by the Supreme Court, then U.S. and Canadian broadcasters will be in the position of beginning to negotiate with the cable and satellite broadcasters.

Some of those broadcasters were the same parties who sought leave to appeal the Federal Court of Appeal's decision. They argued that this impact that value for signal would have on them is in appropriate because of the advantages that local broadcasters already receive. These broadcasters also point to the negative impact for consumers.

Despite protests from the cable and satellite companies that consumers would be unfairly affected, the language of the discussion never seems to go beyond the issue as framed within the traditional broadcasting framework (viewers receiving their “television” through traditional means). Because of this, Michael Geist's analysis of the two major issues left out of the discussion takes on a particular pertinence. He argued, , that the Canadian discussion of the “value for signal” regime seems to ignore two of the major issues: the consumers' perspective, and the internet's increasingly important role in Canadians' consumption of content that was originally televised. He says, “the CRTC decision acted as if the Internet scarcely exists.” Geist points out that Canadian viewers are now able to exercise other options in the event that the originating broadcaster fails to make a deal with a given cable or satellite company. He points to the fact that Canadians spend more time online than watching television, and are able, there to find both legal and illegal forms of most televised content.

As a television viewer, I certainly don't like the idea that my cable costs are likely to increase, but I think such an increase is inevitable where cable companies negotiate fee deals with broadcasters that end up costing more. For viewers who do still consume much of their television through traditional cable or satellite companies, an increase is not going to be a popular move. As Geist pointed out, the likely result will be that even more viewers will turn away from conventional broadcasters and towards the ever-available library of online content.

Hayden McGuire is a JD Candidate at the University of Saskatchewan, Faculty of Law.

The post What's the Value in a Broadcast Signal? appeared first on IPOsgoode.

Four years later, there are still no final answers to these questions; Girl Talk is . Girl Talk has also recently released a “feature-length dance music video” called “Girl Walk All Day” which is , but can also be, on the Girl Walk All Day website. There's no clear copyright information with respect to the film itself, but the album that is its soundtrack is clearly labeled under the Creative Commons copyright: what is calls an license. The intent of this type of license (worded in plain English) is that a user can make use of All Day, as long as she does not profit from it (i.e. use it for commercial purposes). This means that either Gregg Gillis (who is Girl Talk) or his record label, is distinguishing personal use - presumably not-for-profit - from commercial use.

Though this license allows distribution and sharing of the album, this line in the sand lines up remarkably well with the language common to copyright infringement suits, where the key point being made tends to be that the profit to be gleaned from copyrighted material should be reserved for the copyright holder, regardless of how their material is being used.

The core of Gaylor's argument did not depend on the availability for profit, only the availability to exercise one's creative impulse. At the time of the documentary, Gregg Gillis had a day job. Since that time he's been able to quit and, presumably, to support himself via his music. Though the impulse likely wasn't motivated by the potential profit, nonetheless, the availability of profit allows a greater focus on the creative impulse. This characteristic is likely common to creators of copyrighted content: whether or not the creation is motivated by its potential profitability, this possibility plays a large role in allowing the time for continued acts of creation.

Hayden McGuire is a JD Candidate at the University of Saskatchewan, Faculty of Law.

The post A Little Girl Talk on Copyright appeared first on IPOsgoode.

To put it simply, it's the right of an artist to profit from an appreciated value if one of her works is eventually sold by the original buyer at a later date. CARFAC and have petitioned the federal government both during the life of the now-defunct Bill C-32, and its current iteration, Bill C-11, for the inclusion of such a right.

CARFAC, in particular, is positioning the ARR as something that could have a significant effect on the economic viability of Canadian artists. It appears first on their list of , and in a , the B.C. President of CARFAC suggested that the “few thousand dollars” that could result could assist older artists who are no longer physically able to paint as a full-time job.

If the picture painted by CARFAC is accurate, then supporting an artists' resale right looks like a no-brainer. CARFAC makes their point even more clearly by putting a number on the possible lost revenue in a May 29, 2012 front page story on their site: they suggest that from only 3 sales held withing 2 weeks of the article, Canadian artists were deprived of .

However, there are other voices in the discussion of the ARR that provide a distinctly different perspective: the (AGAC) in November 2011, . Instead of looking at what artists would stand to gain from an ARR, the AGAC looked to the EU, and particularly the UK in presenting a case for what Canadian artists, as well as the Canadian art market as a whole, would stand to lose. The AGAC argues that most artists do not actually benefit from the ARR – 10% of artists have received 80% of the royalties collected. They also argue that the ARR is difficult to administer, and leads to “collection agencies” walking away with the majority of the royalty payment. They also point to cases that would generate an ARR, where this might not be appropriate, such as where the original buyer sells a work at a loss, or where a dealer purchases an artist's work for a gallery with the intention of resellling it; both of these cases would generate an ARR. AGAC opposes the ARR for these reasons, but the biggest influence on their ultimate position appears to be not merely this two particular instances but the possibility that the existence and attempts at enforcement of an ARR would stifle Canadian art sales, the art market and, as a result, decrease an artist's ability to support herself. The inclusion of the ARR in Canadian copyright law, if the AGAC is correct, could have the opposite of its intended effect; visual artists' economic viability would be harmed, not helped.

Others are weighing in on this discussion as well. On , he points out another possible pitfall; if the resale right is framed more broadly, the right might be claimed by other producers of copyrighted content, even that content which is easily reproducible (unlike the work of the visual artists associated with CARFAC's argument).

In looking at the statistics put forward by the AGAC, I find it difficult to conclude that an inflexible “catchall” form of the ARR would be completely beneficial; for established artists, this might be a boon (certainly in the UK, those in that 10% are likely to be thrilled with the results). On the other hand, emerging artists might want the option to waive their right – current procedure in the UK doesn't allow for this according to the AGAC: the collection agencies mentioned above - the administrators of the ARR – take the royalty first and, if they do not locate the artist to whom it rightfully belongs, are able to keep it. It's also important to keep in mind that this does not speak to a problem with the ARR itself, rather in its administration – a distinction that must be preserved to meaningfully examine the potential impact of this right for Canadian artists.

Hayden McGuire is a JD Candidate at the University of Saskatchewan, Faculty of Law.

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The case centres around a video made by Bristol Film Studios (BFS) for one of Mr. Soloman's (aka Mr. Sullivan's) tracks. The video was uploaded to YouTube by BFS upon its completion. Mr. Soloman did not approve of the video and asked the company to remove it; it was taken down about 5 days after its initial posting. YouTube counted about 100 (non-unique) views of the video before it was removed. Mr. Soloman subsequently claimed that BFS owed him damages in the order of hundreds of thousands of pounds for those views. His claim was struck by the High Court, his appeal was dismissed.

In calculating the potential damages, the judge of first instance was generous: he assumed a maximum number of unique viewers (about 50), and that 80% of those might have bought the track had they not seen the video. He nonetheless dismissed damages for which there was no evidence.�� This led to a maximum claim of about £50.

At a first glance at the decision from the Court of Appeal, it might appear that Soloman's claim was struck out merely because of that court's agreement with the court below, that the most generous measure of damages on Mr. Soloman's claim would be in the order of about £50.�� Lewison L.J. points out that the high court is not required to use its resources to entertain claims of such magnitude, and the other Lords concur on this point. If the court's analysis were complete at this point, one might reasonably conclude that any small copyright claim may simply be seen by the courts as trivial or an abuse of process (as was found here). However, there are some important points made by the court in reaching its conclusion:

1. It is made clear early in the decision (though briefly) that Mr. Soloman has no remaining possibility for injunctive relief: the video was pulled upon his request, and BFS retained only one MP3 copy of his track (for litigation purposes). Additionally, BFS was willing to undertake not to make use of the track for any purpose other than litigation without leave of the court.

2. Much of the discussion in this decision focused on the idea of a proportional response. As Lewison L.J. put it "it is only if there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out as an abuse of process." (Emphasis mine.) This comment has particular resonance in the current landscape of IP litigation: Sullivan was decided a short time after the UK's formation ofAs well, in January, the U.S. copyright office for suggestions on how to handle smaller IP claims in the U.S. In Canada, litigants already have this option.

3. Mr. Soloman agreed with the proposition that the court should strike his claim if the damages were in the order of £50.

One question that arises from the court's calculation is whether their methods of calculating the measure of damages may be used by future claimants as a way of maintaining a relatively large claim (in this case, for instance, if the video had gone viral, the judge might have been looking at 1,000s of presumed unique views). In fact, whether this calculation is used by a future claimant may have to be a deciding factor in whether her claim is tenable. In this case, the court points out that had Mr. Soloman known more realistically the scale of damages, he might have had his case streamed into small claims initially - a proportionate response.

In my reading this case, it seemed that another very important factor affecting the outcome of the case was the fact that BFS had complied with Mr. Soloman's requests in a reasonable amount of time. This was not a case where a copyright holder's rights were flagrantly disregarded by another party. Here, BFS complied with Sullivan's request to take the video down and agreed to limit their future use of the copyrighted material forming the basis of the dispute to litigation purposes only (or where the court was otherwise amenable). I was left with the feeling that any remaining possibility for injunctive relief would have meant that Sullivan's claim might have been deemed appropriate for the high court stream.

Hayden McGuire is a JD candidate at the University of Saskatchewan, Faculty of Law.

The post Copyright Lightweights: When 50 Pounds in Damages Might be Abuse of Process appeared first on IPOsgoode.