Beginning by acknowledging the recent “seismic shifts in the publishing industry,” Mr. Pepper added that these changes were the result of numerous factors – including, but not limited to the market trends started by online booksellers like Amazon, and the “conglomeratization,” or the phenomena of larger book publishers buying up smaller ones. A third factor, according to Mr. Pepper, has been the decline of traditional book media itself – where the coverage of noteworthy books just isn’t done as often anymore. Due to the economic limitations and readership crises it faces, the newspaper industry doesn’t seem to have as much print space as it used to. All along, the Internet has stepped in to fill the physical printer’s shoes, and it seems that publishing houses, and by extension, the larger industry itself, has turned to the World Wide Web for the marketing, dissemination and sale of books. Mr. Pepper’s message was that books themselves are not in any danger of disappearing; it is merely the means of their conveyance to the world that are changing, attuned as the industry is to the needs of an increasingly intangible world.

E-books have also been instrumental in opening books, and specifically, the long form novel to readers across generations, according to Mr. Pepper. The e-book, by making its home on tablets and e-readers across the country, has become an enabler of the written word, rather than its arch nemesis. “People who would have never thought about going into a book store are now reading, through e-books,” noted Mr. Pepper. Ultimately, it seems that the novel itself is an undying art form, and e-books and online media are only serving to pique the interest of a previously untapped audience.

On the legal side, Mr. Pepper emphasized that the book publishers in general are concerned about the online piracy of books, and the general consensus is that the author’s copyright in the work should be protected; this was consistent with Mr. Pepper’s earlier hat-tip to authors as being the “ones with skin in the game.” Using the music industry’s handling of piracy as an example, Mr. Pepper stated that publishing industry’s management of similar issues has to be different, mostly because the target pirates are, in themselves, different. “Teenagers do not pirate War and Peace like they pirate music,” said Mr. Pepper, while also reminding the audience that, at heart, both industries have one common goal, which is to protect copyrighted material.

The talk then turned into an interactive discussion, since Mr. Pepper seemed eager to understand the collective psyche of the people present in the room, and opened the floor up by shooting an inquiry of his own to the audience, asking, “Where do you find your books? What do you read? And what do you discuss around books?” He then patiently answered queries for over an hour. The range of questions asked were certainly reflective of the audience, which included students, librarians, writers, lawyers and members of authors groups. Mr. Pepper first addressed the question of the publishing industry’s relationship with “entrepreneur authors,” or those writers who already have a sizeable audience before being signed onto a publisher’s roster. He pointed out that while a strong online following built through social media can be a definite asset to an author’s print sales, he also believed that the publisher-author relationship was defined by other factors such as the financial security, marketing and editing support that the former provided to the latter, implying that social media and self-marketing techniques are often lacking in these functions. Some aspects of the traditional mechanism, such as the acquisition of books and the publishing process are still relevant, and are becoming a part of the e-book industry as well. When asked if the current publishing model should change, especially since the business side of it (a fixed price for a copy) might not always mesh well with the technology (an e-book is tethered to the device it is attached to and thus, limited in distribution potential), Mr. Pepper admitted that while there are emerging challenges to the current model, certain core aspects should remain unchanged, and the industry’s “flux period” as it now is, would need to rely on “tried and true formula[e]” to navigate the changing landscape of the Canadian publishing industry.

Editor's Note: A link to a recording of Mr. Pepper's talk will be made available soon in the��.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

The post IP Osgoode Speaker Series: Douglas Pepper On Book Publishing in a Digital Age appeared first on IPOsgoode.

Given SOCAN’s nature, I had the opportunity to get up close and personal with the practical aspects of copyright policy, especially in the neighbouring rights area of tariffing licensees and users for the right to perform and broadcast the music of SOCAN members publicly. What interested me the most about collective management of copyright was the sheer number of people who were affected by the tariffs that SOCAN applies for, and has approved by . ��Seeing the effect of a SOCAN tariff play out in the licensing and royalty-collection process helped cement some of the core concepts of copyright that I learned in copyright theory class. ��I also had the chance to chat with legal counsels about the effects of the SCC’s decisions, which SOCAN was heavily involved in.�� In doing so, I gained a better understanding of the interactions between law and policy, and how these interactions translated into practice. My supervisors also ensured I had a well-rounded experience by giving me the opportunity to work on internal policies, as well provide research support on litigation files.

Similar to my predecessor, Joshua Dallmann, who interned at SOCAN in the fall of 2011 (read his blog ), I was very nervous during the first two days of the internship because it was so odd being away from the cocoon of Osgoode. That changed quickly however, because my supervisors were excellent, wise and friendly teachers who put me at ease immediately. I am happy to say that I can look back on the experience and find something I have learnt from every single person in the SOCAN legal department, leaving me so much the richer in knowledge. My supervisors also spent considerable time and energy in educating me about law as a profession - giving me tips and advice not just on practicing the law, but rather, on being a lawyer. The experience has I think, helped me grow up in a way that only practical, real world legal experience can, and has left me eager to graduate in May 2013 and return to the practice of law.

And then of course, there were the boxes of free CDs, the lunchtime concerts and the much-anticipated SOCAN Awards, all of which, I think it will suffice to say, showed me the effects of the work I was doing every day, making the endless poring over legalese completely worth it and fabulously fun.

SOCAN I say I had a great time last semester? That would be a definite, resounding “Yes!”

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s��. ��As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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Quoting musician Greg Gillis (a.k.a. “”), Lessig illuminates the concept as “[t]his appropriation time where any grade-school kid [who] has a copy of Photoshop [….] can download a picture of George Bush and manipulate his face how they [sic] want.”��This redefinition of authorship in the digital age is echoed in the Ecce Homo v. Ecce Mono controversy too, because it questions whether copyright should be used to protect something that “defaces” or reduces the value of the original work, even if it falls within the four traditional areas of copyrightable works.

In early October, Vladimir Umanets, co-founder of the so-called art movement “,” at the Tate Modern gallery in London. In his own eyes, this was not an act of vandalism, but a redefinition of a piece of art as not-art, and therefore, as a piece of Yellowism. Whether or not I actually understand the nuances of Umanets’ manifesto, I do wonder about the implications his actions might have on the perception of what remix culture constitutes. To me, this art-(and now, not-art)-is-in-the-eye-of-the-beholder perspective is being used as a justification for vandalism here. Of course, I might only be saying this because the underlying work in question is a famous painting in its own right, and the Yellowist’s (Umanets refuses the labels “artist” or “vandal”) contribution to it is detrimental to its innate value, at least for me. Umanets would disagree, believing that he has through its inclusion in the folds of Yellowism. His act asks whether the value of a derivative work is inherently linked to the effect of increasing or decreasing the original’s worth, or if it can have a separate and stand-alone value as a new work of art.

The parallel Ecce Homo v. Ecce Mono debate considers whether the value of a derivative work rests on public reaction, if its economic and artistic values are confused with each other, and if something can be “valuable vandalism.” For instance, , perhaps the most famous guerilla artist of our time, has often probed the murky philosophy behind the legal definition of “art,” by producing enduring stencilled works on state-owned property, which have had a lasting and positive effect on the public’s view of art, while creating .

What then, is the difference between Banksy, Cecilia Gimenez (the Ecce Mono creator) and Umanets? Is it the perceived value attached to the purpose that the work serves, perhaps making it worthy of being categorized as art? Or is it the real (monetary) value that the work is given, so that it is only considered art because it commands a price, which sends the (inaccurate) message that a work of art is only so if it is considered economically valuable? Or is it that the very act of vandalism is a blunt manifestation of the abstract concept of the “remix” in remix culture, where all derivative works are vandalised versions of the originals to some degree?

Copyright law does not take it upon itself to determine the quality of a literary, dramatic, musical or artistic work but only decides if it is copyrightable, . Derivative works , arguably falling into both categories at times (thanks to the oft-contradictory perceptions of the originality requirement in copyright). For cases of vandalism, it may well be that the process of defacement creates a new work that is itself worthy of protection, independent of its perceived quality. For Banksy, this may be the recognition of his works as distinctive expressions of thought, but for Gimenez, it may be the distinctiveness attributed to the Ecce Mono by its circumstances, resulting fame, and the money it generates for the Sancti Spiritus foundation.

Umanets’ act is arguably neither of the above, even as it incorporates elements of both. The defaced painting could well be copyrightable; the issue with it, as it is may be with all “vandal works,” is whether it is ethically worthy of copyright protection, even if legally found to be so. This contemplation may be debatable in the application of copyright law, but is, I believe, one of the fundamental questions that remix culture-at-work raises.

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.�� As part of the program requirements, students are asked to write a blog on a topic of their choice.

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After spending much (printer) ink on the two-step test for fair dealing that has been outlined in CCH Canadian Ltd. v. Law Society of Upper Canada, , the SCC ruled, in a very close 5-4 majority, that photocopies of short excerpts from books, made by teachers for students in elementary and secondary schools, should not be subject to an additional tariff.

This is because they come within the ambit of “fair dealing for the purposes of research or private study,” as outlined in of the Copyright Act, . Naturally, the decision has many ramifications for the textbook industry, as well as for authors, educational institutions, teachers and students. Both the majority and the minority were engaged mostly with determining what is “fair”, within the definition of the Act, as well as with respect to the facts of the case. Ultimately, ��the SCC decided in favour of users, firmly entrenching the soon to-be-famous adage that “fair dealing is a user’s right,” (at para. 22), quoting Society of Composers, Authors and Music Publishers of Canada��v.��Bell Canada, , covered by IP Osgoode .

On appeal from the Federal Court of Appeal (FCA), the facts of the case were simple enough: Access Copyright, a collective that licenses literary works, filed a tariff proposal with the Copyright Board stating that the photocopies made by teachers in elementary and secondary schools for their students did not constitute fair dealing, and therefore should be subject to royalty payments. The crux of the matter revolved around the second stage of the CCH test: the fairness analysis. The 5 factors from CCH were used to determine the concept of fairness within the context of the case: the purpose, character, amount of the dealing, existence of alternatives to the dealing, and the effect of the dealing on the work (at para. 12).

It is important to note, that the SCC did not make a general ruling as to what “fairness” entails, agreeing unanimously that this criterion was fact-specific. In this case, the facts supported a finding that the photocopying was fair, and the Court remitted the matter to the Copyright Board to whether a royalty really would be the best option in these circumstances. While we wait for the Board to make its decision on the tariff, here is a brief breakdown of the Court’s debate, and some personal thoughts on why the majority’s decision was a fitting one, in this case.

I. Purpose of the Dealing:

Justice Abella, writing for the majority, disagreed with the Board’s view with respect to three aspects: that the purpose of the dealing should centre around the teacher’s (or copier’s) perspective, that the purpose then became instruction (not research or private study), and finally, that the teacher became the facilitator of the dealing, and in doing so, made it unfair, since the teacher’s purpose (instruction) was separate from the allowable purpose of the students (research or private study).�� According to Justice Abella, the teacher’s purpose could not be separated from that of the students’, because the teacher would have no ulterior or commercial motive to replicate excerpts unless they were for the students themselves.

The majority also stated that it was incorrect for the Board to have deemed a student request for a photocopy as different from a teacher initiated one, since it was the teacher who had the expertise to know the most suitable material, and this was a part of the process of research and private study, rather than of just pure instruction. As far as the majority was concerned, the purpose is indistinguishable into categories of student versus teacher.

Justice Abella dealt another blow to the Board’s analysis when she determined that “private study,” as contained within the Act, could not have meant “requiring users to view copyrighted works in splendid isolation” (at para. 27). Rather, the term was supposed to have been interpreted conceptually (i.e. relating to one or a select group), than geographically.

Justice Rothstein, on the other hand, disagreed, along with the rest of the minority. Choosing to hierarchize the purposes, the justices deemed the teacher’s purpose to not only be relevant, but also, predominant in the fairness analysis. This was because efficient teaching tools – which include the photocopying of excerpts – are essential to the very nature of the job of teaching itself (at para. 43). The minority then deemed the purpose of the teacher to be crucial in the fairness analysis.

With respect to the interpretation of the words “private study,” Justice Rothstein pointed out that the inclusion of the word private in the act could inferentially mean that it was meant to distinguish private and non-private studies. In agreeing with the majority that studying and learning were "personal endeavours," he also noted that “words used by the legislator should be construed to give them some meaning” (para. 47).

The opposing viewpoints on the matter highlight an interesting component – that of voluntariness, on the part of the students. The Board wanted the SCC to consider the will of the final user – the student, as distinct from that of the copier – the teacher, the latter of who would presumably have a separate agenda from the student. However, I think this seems a trifle far-fetched; while it is true that the process of instruction is essential to teaching, it seems unlikely that the photocopying of excerpts from supplementary textbooks would enable a teacher to obtain any direct commercial gain.

On the question of whether this gain could be indirect, clarification is needed from the courts. For instance, would it matter if the schools in question were private or public institutions? In the former, a good teacher could mean higher salaries, and promotions, while in the latter, a teacher whose skills were enhanced by photocopying excerpts might gain less monetarily, but may gain through an enhanced reputation as a better teacher.

II. Amount and Character of the Dealing:

Once again, Justice Abella focused on the Board’s attempts to distinguish between the student and the teacher’s motives as being a false dichotomy, insisting instead on their unity. The majority viewed the amount as being essential to determine fairness, but entrenched it in the concept of proportionality.

The notion of whether it is fair to copy an excerpt depends on the proportion of the excerpt to the overall work, and not how much was actually copied in terms of the number of pages (quantity). The totality of all copying, according to the majority, is related to the character of the dealing, not the amount. By confusing the two, the Board removed the concept of proportionality from the analysis, which the majority found unacceptable.

Justice Rothstein and the minority, on the other hand, took a broader view of the “amount of the dealing” aspect, because the teachers, in his opinion, would return to the same textbooks to copy different excerpts, thereby increasing the overall proportion of copied work, making the practice unfair.

III. Existence of Alternatives to the Dealing:

In considering whether there were other reasonable alternatives to photocopying the excerpts, the majority found it unreasonable to expect schools to purchase every article that was useful in addition to textbooks. Basing its criteria on the “reasonably necessary aspect,” it differed from the minority by saying that, in the absence of other viable alternatives, photocopying excerpts was the best available course of action.

The minority was adamant to point out that just because there were no other viable alternatives, this did not make the copying fair (at para. 57).�� According to them, schools would have had to buy extra copies, and make them available to the public, thus solving the issue of photocopying.

IV. Effect of the Dealing on the Work:

The final criterion, according to the majority, considered whether photocopying would have had a negative impact on the commercial sales of the original materials, and whether this was enough to make a dent in the perceived or potential success of the original books. Both sets of justices were in agreement here— namely that there was a very slight chance, if any at all, that the photocopies would affect the market for the originals, since there was such a large gap between the number of photocopies being made, versus the textbooks sold.

The Court took into account the fact that there was no evidence specifically pointing to photocopying by teachers as a reason for the decline of sales and profits. Therefore, it was not prepared to consider declining sales as a direct or indirect effect of photocopying by teachers.

Implications:

The decision is a reminder to the Canadian public, lawyers and lower courts that fair dealing is here to stay in Canadian law, and must be given a broad interpretation (at para. 48). This has led to questioning whether the SCC has cast the net too broadly. Coupled with the recent changes to the Act through Bill C-11, the decision could potentially mean that a lot more can be included in the category of “education” than would have been previously done, and this might mean a lot more leeway will be given to users, when it comes to using materials. Access Copyright itself has insisted that it will keep pushing for the rights of the creators, and that the decision will .

While reading the decision, some other things come to mind as well. The case concerns the use of supplementary texts and their photocopying, and limits the use of its principles to small, short excerpts. Therefore, it seems that the SCC was quite aware that it would not deal a blow to the entire textbook industry, since in most cases, students will still buy the textbooks they need the most, as has always been the case. Further, in determining fairness, the SCC has not deviated from the CCH case at all, and to speculate, perhaps did so to stress to the lower courts that the application of those factors is crucial in all analysis of fair dealing.

Then, there is the question of whether the Board’s argument would have stood regarding copying of the excerpts by other users. For example, students themselves can now make the copies without the involvement of the teacher – a simple snap with an iPhone can do the trick. In such a case, would there even be the need to consider the facilitator’s purpose as anything other than that it might be to ensure students learn the material, since in this example, there is no facilitator at all? Simply put, the SCC’s eventual determination of a symbiotic purpose seems to be correct, because it gives future courts the option of either lumping in the teacher’s and students’ purposes together, or it eliminates the need for the former altogether. In my opinion, it makes for a less-complicated path in the recognition that fair dealing as, to truly be a user’s right, it must focus on the benefit to the end user.

The Court also draws a sharp line between users and creators in this category, and chooses the former over the latter. While this has no doubt been done to give fair dealing its dues in Canadian law, it also puts creators at a sizeable disadvantage. There is no precise definition of what constitutes a “short” excerpt, and future courts will have to rely on the amount, character and proportionality factors, combined with sizeable judicial discretion to determine whether it falls within the realm of fairness.

The ruling also puts authors in further danger of being inadequately compensated, because with even less dues being paid to the publishers, it leaves the authors with very little, thanks to the profit-making criteria of the publishing world.

The most positive thing, however, seems to be that the SCC has prevented a deviation in the understanding and purpose of the nature of learning, namely that is a constantly evolving, symbiotic process that is both private and public. . At the same time, the Board might have received its wish, albeit in an indirect way. By focusing on the purposes of the user and on the facilitator, the SCC has in fact prioritized the rights of the end user over anybody else’s, even the creator’s. Only time will tell what the overall impact on students’ education, and the educational publishing industry, will be.

Editor's note: The Supreme Court of Canada did not make a definitive ruling on the issue of fair dealing. Rather, the Court held that the Copyright Board's finding of unfairness was based on a misapplication of the fairness factors enunciated in��CCH Canadian Ltd. v. Law Society of Upper Canada.��The Court therefore remitted the case back to the Copyright Board for reconsideration as to whether photocopies made by teachers to distribute to students as part of class instruction at the primary and secondary level are subject to a tariff. �� See��Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),��2012 SCC 37 at paras. 37 - 38.

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School.

The post Fairly Dealt: Strong Statement by the SCC in Alberta (Education) v. Access Copyright appeared first on IPOsgoode.

If the passage of Canada’s copyright reform bill (covered by IP Osgoode ) after nearly 15 years of lobbying and revision has shown anything, it’s that persistence pays in the field of IP legislation. If copyright reform is a key goal of EU interests, as it has been with Canada, then it is only a matter of time before ACTA 2.0 or its revised equivalent shows up on the horizon. Given this likelihood, here’s a brief recap of the major events and debates in the life of ACTA, which might be useful in helping readers determine what the next EU IP reform treaties might bring.

The European Commission (EC) cited as being trade-related, especially with regards to balancing the rights of the creators of IPRs with those of EU citizens and consumers. It was also quick to point out that ACTA was mostly enforcement-based, and aimed to strengthen existing IP rights, without seeking to add an extra layer. And finally, the EC rebuffed the broad scope of the treaty by justifying it as necessary for the protection of “all European innovators and creators, through a broad range of means,” including ‘best practices’ mechanisms to ensure both civil and criminal enforcement were uniformly applied across EU borders.

Given that the agreement was touted as beneficial for both “developed and emerging economies,” it is interesting that such as Brazil and India had spoken out against ACTA, with the former claiming that the negotiation process was itself , and the latter pointing out that ACTA that developing economies need, by disallowing them the full benefits of efficient IPR-usage. The fact that the original communications around the treaty were on the internet in 2008, ultimately leading to a of the draft treaty being released in December 2010—with even the European Parliament over its (the EC’s) suspicious behaviour— may have served to stir an ever-growing hornet’s nest over ACTA’s .

Margot Kaminski’s highlighted ACTA’s impact on international law on both practical and thematic levels, and pointed out that its acceptance would have led to increased governmental interference in issues of IPR enforcement normally handled by private companies. More importantly, Kaminski emphasized that the current global recession puts an increased strain on cash-strapped governments to pursue IPR enforcement within their own borders, instead of focusing on development issues, which is something that has been commented on as well. Still other critics focused on the , reffering to ACTA as SOPA’s ‘big sister,’ alluding to the fact that ACTA effectively encompassed SOPA’s free-speech limiting provisions and expanded on these to include generic drugs, pharmaceuticals and goods. ACTA had therefore been touted as “part of a ,” with countries being compelled to fall in line with a majority view favouring punitive copyright enforcement, in exchange for trade and economic development prospects.

More interesting perhaps, was the . While civil protests were marked by the , and online awareness that culminated in , it was the retractions by various governments (, , , , among others) in the days following that highlighted just how divisive ACTA had become, creating much , even as it signed the treaty. The of Kader Arif, the rapporteur of the EP for ACTA, followed by his of the process of its negotiation and adoption already circulating in the civil world. All this fracas then led to renewed concerns about whether the rhetoric from the SOPA protests could have affected public perceptions of ACTA’s content and goals, with for being unclear about the treaty’s motives, prompting , at least with respect to . Some members of the EC hit back, by suggesting that the protests “.”

In May 2012, EC had decided to stall the ratification process of the treaty, and by the European Court of Justice (ECJ) on ACTA’s legality. The EC deemed this a “” to ensure that the fundamental freedoms of the public were protected, even as would have been put to rest. Even so, the EP decided not to wait for the ECJ’s ruling on ACTA by voting on it before the Court’s judgment was released, reflecting just how unpopular the treaty had become.

For its part, Canada had been embroiled in the ACTA controversy since its and . The government has as being directed towards the internationally cooperative best practices that the treaty would have encouraged, especially with respect to the development of a new legal framework designed to counter mass scale copyright infringement. While the official Canadian stance had been that the country’s , critics highlighted that were in Bill C-11— which has now and will soon become Canadian law— even as they dismissed the actual passage of ACTA as being unlikely. From the Canadian perspective, it seemed as if the treaty’s consequences on the “” debate was one of the with the treaty, although this country has now pre-empted the EU on this aspect by including these provisions in C-11 anyway. Other issues of process and substance that hark back to the nature of democratic dialogue and law-making had also been discussed in connection with ACTA.

Ahead of Wednesday’s vote, the of the MEPs on July 3, 2012 was a , with supporters expressing the concern that a vote on ACTA before ECJ’s ruling would be irresponsible, even going so far as to weaken the and EU’s “defence of IPRs….across the world.” Interestingly, the pro-ACTA opinions seemed to centre purely around the concerns of defence, protection and trade-related enforcement measures, while the anti-ACTA voices considered the importance of public opinion, and the need for increased input from EU citizens to create a balanced treaty that would “allow both business models to exist” – the traditional defensive stance, along with the newer “sharing” one. Ultimately however, the sour taste left in the mouths of many stemmed from the overall approach to the creation of ACTA in first place; as British Labour MEP David Martin stated, .” Perhaps its drafters would do well to take this lesson to heart, and allow for a democratic and cooperative drafting process for the next round of IP reform legislation in the EU. This would be more reflective of the quest to achieve the ideal and ever-elusive balance between the rights of creators versus those of society that IP law is supposed to continuously strive for.

On a grander scale, the fight over global IPR management and enforcement might just be the beginning. Awareness over a , the (TPP), which , has been spreading slowly but surely. The criticisms with this are all-too familiar— ranging from secret negotiations to inadequate representation of all parties and stakeholders, and indicating what is perhaps a sad trend in current international IP law negotiations, but one that is facing stiff criticism from global civil societies and governmental organizations alike.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

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Here then, is a summary of the changes C-11 brings on, gleaned from ’s all-day seminar on June 5, 2012, titled “.” It was an educative affair, with a range of��knowledgeable speakers presenting on the most salient aspects of C-11, and its impact on the Copyright Act.

Secondary Infringement Brought On By File-Sharing

The focus here was on the division of users as “good” and “bad,” placing this perspective squarely within the copyright “maximalist” camp of arguments. The chief aim was to target the major players in the realm of privacy, such as peer-to-peer file sharing sites and networks that perpetuated large-scale infringement by allowing the public access to copyrighted works without sufficiently compensating the creators and copyright holders of the works. The speaker cited the amendment of the “enablement provision” as being instrumental in holding such sites, aptly termed “enablers” responsible for such acts, by damage awards within the statute itself, which is a change from C-11’s predecessor, Bill C-32. The language of the provision focuses on sites that are “designed primarily” for the purposes of enabling, and therefore, intent and knowledge are key factors in finding an illegal site an enabler. Responding to the concern that these provisions would also target legal internet service providers (ISPs), the speaker pointed out that C-11 created 4 “safe harbours” for such sites: the network services exception (s. 31.1(1)), the caching exception (s. 31.1(3)), the hosting services exception (s.31.1(5)), and the information tools exception (s.41.27). Put together, these exceptions were deemed to be the safety net protecting and legal or “good” ISPs versus the illegal or the “bad” enablers.

Another aspect is the “making available right,” which is “an exclusive right to control the release of copyrighted material on the Internet.” This provision is a further safeguard for both the creators and/or rightsholders, and extends to include performers as well. Simply put, it can be used to prevent the unauthorized dissemination of copyrighted online and through technology. This “digital transmission” combatant has been cited as necessary primarily to align current Canadian copyright law with its international counterparts, and to clarify that such transmission is a definite violation of copyright, something that has previously been a source of confusion to the Canadian public. The secondary infringement provisions, then, are an attempt at cracking down on the number of illegal file-sharing sites hosted within Canadian territory; this is to ensure adequate protection for the copyright holders, as well as to align Canadian policy with the WIPO, and to save face from the country’s current reputation as the “wild west of illegal file-sharing sites.”

Internet Service Providers’ and Network Services Liability for Copyright Infringement

Building on the above, both in terms of content and analogy, this presentation focused on how the enablement provision (s. 27, Copyright Act) and its exceptions would separate the “sheep from the goats,” by clarifying the specifics on ISP liability, and its limits.

Historically, intermediary sites, or those that are neither pure enablers nor just ISPs have been in the grey areas of legality, as they have been in a position to facilitate the infringing act, even if they have not been the host of the infringing activity itself. Before C-11 came into the picture, the focus was on the transmission itself, leaving the intermediary free to carry out its activities without repercussions. Further, the law did not speak to the acts of functional sites such as search engines, which only pointed users to infringing sites on request, or to their exclusive reproduction rights. At the heart of this, said the presenter, was the question of whether the intermediary was neutral in the infringement, i.e. not participatory in the wrong act, per se. However, C-11 has been said to clarify the status of neutrality by considering the principles set out in Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers (“Tariff 22,” ). Here the SCC held that intermediaries would not be held liable for providing technical functions for Internet usage, but that additional roles such as providing content could lead to liability for infringement. Additionally, the court held that the practice of caching was technical in nature, and therefore, lacked the necessary knowledge element to be deemed infringing on copyrighted material.

C-11 then, works to clarify the issue of neutrality, focusing on holding the behaviours of ISPs liable, by setting up a “willful and knowing” standard that will be enough to turn an intermediary into an enabler, while maintaining a technologically-neutral perspective that does not hold the medium accountable. Further, a new “notice and notice” (s. 41.25, Copyright Act) regime will be adopted, serving as both as a warning to ISPs to cease any activity that could be deemed infringing, as well as to avoid liability by forwarding the notice on to the user.

Finally, the presentation focused on 5 exceptions designed to protect ISPs from liability: the network services shelter (s. 31.1, Copyright Act), which will apply to both rights of communication and reproduction, and will protect those ‘conduits’ that will merely provide the means of telecommunication and reproduction, but not partake in its intent; the caching shelter (s. 31.1(2), Copyright Act), which allows lawful industry practices of using technology to cache data to escape liability from infringement; the hosting shelter (s. 31.1(4), Copyright Act), which allows emerging technologies like cloud computing to escape liability if their purpose is to enable the telecommunication of a work, and provided that there is no awareness or intent to infringe; and the information location tool shelter (s. 41.27, Copyright Act), which deems intermediaries not liable if they merely provide access to infringing material, as long as this is done automatically by the technology involved, for the purpose of providing the information, and there is no modification of the material by the intermediary.

Performers’ Rights Provisions

C-11’s attempts to bridge the gap between international and Canadian copyright law was most apparent in the presentation on the rights of performers and makers of sound recordings. The question here was mostly with respect to aligning Canada’s current take on copyright with those of the the WIPO Copyright Treaty (WCT), and the WIPO Performances and Phonograms Treaty (WPPT). Underlining that the WPPT brought up 4 economic rights of performers into play (reproduction, sale or transfer of ownership, commercial rental and making available), the presentation then focused on how C-11 contains provisions to adapt these into Canadian copyright law.

On implementing the both the WCT’s performers’ rights (, WCT) and the WPPT’s economic rights provisions (, WPPT) into the Copyright Act, C-11 amends s.2.4(1.1) of the Act. It establishes a “conjunctive test” that that requires two steps— making the sound recording available, as well as proving actual communication, and not mere transmission to the public. The result is that C-11 gives performers’ stronger rights under s. 15(1.1)(b), of the Copyright Act, by making any copies that are fixed on a sound recording without the performer’s permission a likely infringement.

With respect to moral rights, C-11 amends s. 17.1 and 17.2 of the Act, by setting the timeframe of moral rights to the same as the actual copyright of the performer in the work; both of these are now at 50 years after the calendar year from date of protection, or 50 years from the date of fixation.��Makers’ rights are now outlined in s. 18(1.1)(a) of��the����DZ������������������,��and��they are now given the sole right to make a recording available to the public, creating, as the speaker pointed out, an uncertainty in the ownership of the recording.��Finally, the issue of collective administration of performers and makers rights is dealt with in s. 67.1(4) of the Copyright Act, which would require that users’ would also have to heed these newly established performers’ rights as included in the “package of rights licensed or assigned with the sound recordings.” The implications are of course, primarily with respect to increased fees and tariffs for users.

Exceptions to Infringement for Online Education, Learning and Research

By recognizing the evolution of education materials and methods to include technology, Bill C-11 creates a “fair-dealing” exception for educational purposes, as outlined in different sections of the Act, with differing levels of liability being imposed. For instance, the “lessons” provision (s. 30.01, Copyright Act) defines this with respect to distance education students, provides a limited right of reproduction and fixation, and dictates that the lesson be destroyed “within 30 days of receiving the final course evaluation” (s. 30.01(5), Copyright Act). It also places the onus on educational institutions to limit the communication of only necessary lessons to students, and to reasonably prevent the unnecessary fixation or reproduction (s. 30.01(6)(a-d), Copyright Act). Obviously, the most important question is to the practicality of this section, given that enforcement might be an issue. Further, secondary infringement provisions are also modified, and provide specific definitions for what these are (s. 27(2.2), Copyright Act). Combined with the s. 30 provisions, C-11 creates strict protections for copyright holders, as the speaker pointed out.

Another exception has been provided for works that are available publicly, on the Internet (s. 30.04, Copyright Act). An educator can now use such works for educational or training purposes, and has the rights to reproduction, communication by telecommunication and public performance, as long as the audience in each of these cases consists “primarily” of students. As a counter measurement however, rightsholders can either apply technological protection measures (TPMs) to these works, or post notices preventing their use. S. 29.4 then broadens the fair dealing exception for reproduction for instruction, but applies a reasonable time, price and effort test to decide if the work could have been purchased instead. And finally, s. 30.1(1)(c) outlines “evolutive” provisions for libraries, museums and archives for future updating of their records.

Ownership of Photographs and Commissioned Artwork

The Copyright Act has treated photography as separate from the greater framework of literary, dramatic, musical and artistic works, and C-11 aims to harmonize these within the ambit of the Act. The changes include a repeal of s. 10 of the Act, which used to attribute the ownership of the copyright in the photograph to the owner of the negative, and not necessarily the photographer. The new provision will also remove the contradictory definitions of ownership of photographs that existed, with respect to the Act, and the WCT. Further, s. 13(2) of the Act, which placed the ownership of the copyright in the commissioning party of the photograph, will also be repealed in favour of the photographer’s rights. However, a broadened consumer right will permit the commissioning party to use a photograph for a number of purposes, which are codified under the new s. 32.2(1) “permitted acts” section, which allows a consumer to use a photograph for private and non-commercial purposes, as well as to authorize others to do so for the same purposes. As the speaker stated, the biggest concern here is the destruction of the reprint market, with the cost of the initial print going up sizeably, to compensate for the almost 50% loss that photographers face potentially.

The New Fair Dealing Exceptions

C-11 introduces 3 new fair dealing exceptions, to bring the categories up to 5. These are now research, private study, education, parody and/or satire (s.29, Copyright Act). The educational provisions have already been covered elsewhere in this post. The new “user-generated content” exception (s. 29.21, Copyright Act) pertains to published works alone, and applies to non-commercial purposes, requires the source to be mentioned, requires that the users have reasonable grounds to believe that the source was not infringed, and that the usage would not have had a “major effect” on the existing work. The non-commercial aspect has said to be designed for user-generated works, which is also known as the “Youtube exception.” Further, this is not found to be limited to online content, but extends to traditional LDMA works as well (anthologies, compilations, etc.)

The reproduction rights— for “private purposes” (s. 29.22, Copyright Act ) and for “later listening and viewing” (s. 29.23, Copyright Act) do not provide a specific demarcation between ‘private’ and ‘personal’ uses, or specify whether the use must be commercial or not. Further, the ‘time-shifting exception’ for later listening and viewing allows for the ‘fixing’ or recording of broadcast content for private viewing, but must be limited to one recording, and cannot be longer than “reasonably necessary.” As the speaker pointed out, this is again a vague standard. The “back-up copies” exception (s. 29.24, Copyright Act) also allows for reproduction subject to the conditions that the use is non-infringing, but will be difficult to enforce, according to the speaker. Interestingly, also, as the speaker noted, the language in this section says “person,” implying the possibility of corporations availing of this exception as well. Finally, the “temporary reproduction for technological processes” exception (s.30.71, Copyright Act) deems it a non-infringing use of the work if the copying “forms an essential part of the technological process,” but does not define what this process actually is. The speaker’s final point considered whether the new fair dealing exceptions were in keeping with Canada’s international obligations, specifically to the WIPO treaties. He also questioned whether Canada, it its eagerness to improve its embarrassing reputation in the international arena, has perhaps overreached and “gone too far” with respect to C-11’s fair-dealing provisions. This was something that, in his opinion, would only show itself as time goes by.

Statutory Damages and C-11

No seminar on C-11 would be complete without its repercussions on the current statutory damages scheme, and this presentation outlined that C-11 will now divide the damages awarded for infringement into two categories: commercial and non-commercial. The speaker pointed out that a new proportionality standard has been applied, meaning that the limitation on the quantum of damages awarded would be based on the nature of the wrong; therefore, non-commercial infringements (education etc.) face a range of $100-$5000 for all the infringing works combined. On the other hand, the values for commercial infringements are placed from $500-$20,000 per work infringed, showing that C-11's aims to stop infringement might be harsh, but they are atleast consistent. As the speaker of the secondary infringement talk stated earlier, the main changes are designed to target the biggest pirates on the copyright seas.

The new statutory regime also specifically excludes enablers (s.38.1(6), Copyright Act), but allows for actual damages and injunctions to be claimed. The rationale here is that these infringers will likely not be affected much by statutory damages.

Protections and Remedies Against Circumventing TPMs and DRMs

The next presentation dealt with one of the most controversial changes to the Copyright Act through C-11, the provisions designed around TPMs and Digital Rights Managements (DRM) measures. Here again, the question of harmonization with the WIPO treaties seemed to be foremost on Parliament’s mind, specifically with respect to preventing the circumvention of TPMs, as well as DRM systems. The speaker pointed out that even though copyright infringement was technically a strict liability offence, with no requirement of intention to establish the wrongful act, both the WIPO treaties, and consequently, Bills C-61, C-32 and now, C-11 place an emphasis on the “knowing” element, with respect to tampering with rights management information (RMI) systems. Apart from this, a new exception (s. 41.18, Copyright Act), deals with the unlocking of wireless devices.

With respect to TPMs, C-11 places an absolute restriction on circumvention of access control TPMs (s.41(1)(a), Copyright Act), and it is here that intention has no effect. Additional provisions include the prevention of aids designed to help circumvent TPMs, including the manufacture, sale or importing of such devices (s. 41(1)(b),(c)). The criticism of these provisions comes from the fact that they are construed as being too strict, with there being no exception for fair dealing, backup copies, preserving digital copies and for obsolete/broken TPMs. Also, consumers are left in the dark with respect to which aspects of a product might be TPM or RMIs-protected, and which will not be, leading to potential for confusion and misperceptions as to the protection that will be afforded. Finally, the speaker left the room with some food for thought, by pointing out that even though Canada wants to align itself with the WIPO treaties, there is no real consistency with respect to the effectiveness of TPMs. Further in practical terms, the question of breaking a TPM might be simpler than expected, making detection and enforceability a possible issue.

The Sole Distribution Right of Copyrighted “Tangible Objects”

The final aspect of C-11’s changes dealt with the new “distribution” right that has been introduced in the Act, as per Article 8 of the WPPT.��The speaker pointed out the additional�� ambiguity that has been created within Canadian law, with respect to distinguishing between an actual distribution right versus that of the “making available" one, ��attributing this gap in understanding to the ignorance of the French word “exemplaire,” which would have been better poised to correct the matter.��The distinction would effectively have characterized the two with respect to the right of distribution for an original, and an ‘original copy.’��Further, a right to publication would be completely exhausted at the ‘offer’ stage, while a right to distribution would be exhausted on a copy-by-copy basis, according to the speaker.

After noting that the distribution right would not have an effect on the existing rights to publish, make available or of exclusive distributorship, the speaker noted that the right could have been put in Canadian law to introduce the doctrine of exhaustion – the principle that once the rightsholder has obtained an economic gain through the work, the purchaser would be “entitled to use and dispose of [the work] without further restriction.” Arguably, this would not reduce the copyright owner’s control over the work, because all other rights except for the distribution one would still be maintained. On the flip side, it does not seem to add to the holder’s rights either, but could add more actors on the copyright stage, like distributors. The speaker’s ultimate conclusion was that the right could have been placed in the Copyright Act to aid harmonization with the WIPO treaties.

��

House Debates on C-11

On June 15, 2012, the of Hansard debates regarding C-11 took place in the House of Commons, with MPs bringing up any final concerns regarding the bill. Foremost on the minds of the MPs was the issue of balance, and to ensure that this was played out with as much integrity as possible. Criticisms ranged from there being a lack of eye-to-eye on both sides, with respect to achieving this balance, as well as the worry that C-11 was ultimately profiting corporations and “satisfying industry concerns” (David McGuinty, Ottawa South, ON). Its supporters, on the other hand, insisted that the fairness balance had been found, and that the bill would ensure the Copyright Act would be ushered into the 21^st century, allowing for Canadian copyright law and policy to be on par with the rest of the world (Christian Paradis, Minister of Industry and Agriculture).

The birth of Bill C-11 and its passage into law has been anything but smooth. Even though it still has some time before it’s provisions are codified into the Copyright Act as formal law (it is now headed to Senate), Canada’s current round of copyright reform is here to stay, for better or for worse. The question that is foremost on the minds of many Canadians, no doubt, is whether the better will trump the worse, and is something that only time and patience will tell.

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School.

The post Happy(?) Birthday, Bill C-11! appeared first on IPOsgoode.

Pepsi, on the other hand, does not seem to be having the same such luck, in the marketing department or otherwise, even as it to keep its trade secret confidential. The heirs of Richard John Ritchie, the co-inventor of the current formula, are seeking a court’s judgment that would allow them to release the recipe to the public as part of their ancestor’s legacy.

In seeking a declaratory judgment, the heirs are asking the court to decide that Mr. Ritchie did not transfer his intellectual property rights to the company, and that the recipe is not a trade secret. If deemed so, it will be an interesting testament to the power of the intangible (the Ritchie Invention) over actual physical property (the Ritchie Documents) -- even though both kinds of property are the subject of litigation here. This tension is played out in the case, especially since the issues have been divided into the “real” and “intellectual” (or intangible) categories.

The case (“”) which has been filed in a New 91��ɫ state court, ��centres around the following four issues:

1) Whether the “physical and legal control” that has been exercised over the formula by the Ritchie family for sixty years entitles it to be deemed the legal owner of the Ritchie Documents and Invention;

2) Whether Richard Ritchie was the sole inventor of the formula, and agreed to assign his rights to PepsiCo at any time (related to this is if Pepsi’s allegations that it is the sole owner of the formula, are true);

3) Whether, if the formula is found to be protectable by intellectual property law, its release to the public by the Ritchie family will become a misappropriation of Pepsi’s trade secret;

4) Whether Pepsi’s claims of ownership, and its “threats” to the heirs to prevent their usage of the formula are unjustifiable and improper interventions of the Ritchie family’s use, transfer, enjoyment and exploitation of the Ritchie Documents and the Ritchie Invention.

conducted a thorough review of facts when determining that there was a legitimate case between the parties, and that it did not warrant a declaratory judgment. The dispute in the ownership of the formula arose because when Mr. Ritchie invented it, he was not an employee of Pepsi, and neither signed his ownership nor intellectual property rights over to the company when he was officially hired to work there in 1939. The Pepsi formula was invented in 1931. For the next ten years, Mr. Ritchie and another associate at the company were the only two people with knowledge of the formula’s components. Then, Pepsi requested that it be provided a written copy of the recipe, which Mr. Ritchie provided, although he kept an additional copy for himself, to Pepsi’s knowledge. It is this document that is at the heart of the current litigation. In 1951, Mr. Ritchie signed a Consulting Agreement with Pepsi, which cancelled all of his rights, obligations and duties or prior agreements with Pepsi, and imposed a personal obligation on him not to disclose the formula to anyone. However, as Justice Furman noted, there was never any mention of transferring or assigning intellectual property rights to Pepsi, nor any stipulation requiring Mr. Ritchie’s heirs to carry the non-disclosure agreement forward. He also noted that this agreement did not make demands as to the return of the Ritchie Documents to Pepsi, or impose a duty of confidentiality to keep the formula a secret, on either Mr. Ritchie or his heirs.

Analyzing the issues against the above facts, Justice Furman deemed that there was enough dispute in the ownership of both the Ritchie Documents and Invention for further litigation to debate on. He also found that because Pepsi had not adequately protected the formula’s secrecy over the last 60 years, it could not be understood to be trade secret, and therefore, the heirs’ rights to use and exploit the formula would be protected under the First Amendment.

At trial, both sides will no doubt try to prove ownership of the formula, and question or validate its status as a trade secret. It will also be interesting to note if the parties choose to settle, and for what amount; right now, it seems as though Pepsi has a lot more at stake in the battle – its reputation, brand and recipe among other things. For the Ritchie heirs, whose primary aim is to release the information for scholarship and research purposes, an out-of-court settlement might bring major economic benefits. Stay tuned to IP Osgoode for upcoming coverage on the case.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

The post Pepsi’s Deepest, Darkest (Trade) Secret Might Soon Be Revealed appeared first on IPOsgoode.

Citing the relevant international legislation, namely, of the , of the Agreement and of the WIPO , the ECJ attempted to tread the fine line between the protection of the rights of users versus those the copyright owners. It clarified that computer programs were indeed protectable under EU and international copyright law, so long as they qualified as original literary works of expression, going so far as to include the preparatory steps leading to the development of the source or object codes under the umbrella of copyrightability. As a trade-off however, the Court also stressed that the laws for authorial protection only extend to prevent unauthorized reproduction, and hence, a contract could not be employed to prevent lawful third-party use. Like Adv-Gen. Bot’s opinion, the ECJ also referenced the Computer Programs () and Copyright () Directives of the European Commission, stating that the authorization of the rightsholder is not required when decompilation is necessary to achieve interoperability. And turning to national UK law, the ECJ pointed out that while of the treats copyright as an exclusionary property right in literary, dramatic, musical or artistic works, of the same act deems copying for research, study or testing of the function of the program as acceptable fair dealing uses of a computer program.

Analytically, the ECJ harkened back to questions asked in the preliminary ruling, grouping them into three categories. In the first part, it dealt with whether the functionality, programming language and data files used to exploit the functionality can be considered within the realm of copyrightable expression under of Directive 91/250. As per this aspect, the source and object codes of a program were found to be copyright-protected, since they led to the “reproduction or subsequent creation of the program.” However, the graphic user interface, which constituted the functionality of the program, and therefore only enabled users to utilize the program and not to reproduce was not copyrightable expression under the Directive. The WCJ thus determined that neither the functionality of a computer program, nor its programming language were worthy of copyright protection.

In the second stage of the analysis, the ECJ considered whether of Directive 91/250 allows a party that has legally obtained a copy of a program to use, study and test the program with a view to discovering the underlying principles in order to perform a function that would go beyond the usual purposes contained within the license of the product (e.g. the development of a parallel program using the same programming language). By framing these underlying principles as the ideas at the core of the expression (the copyrighted source program), the ECJ then determined that Article 5(3) of Directive 91/250 does not extend protection over these, and as such, allows the discovery of these through decompilation or reverse engineering. The ECJ clarified that this allowance was naturally based on circumstances where the defendant party did not have access to the plaintiff’s source code, and hence, could only discover the underlying principles through original research, study and testing.

In the final category, the ECJ considered whether of Directive 2001/29/EC can be interpreted as meaning that the reproduction of certain elements used to describe one program in the manual, or the contents of a second program can be deemed as infringement. While agreeing that the plaintiff’s user manual was indeed a protected literary work, the ECJ also said that the individualized components of a computing language (keywords, syntax, commas, commands, defaults, figures etc.) could only be considered as creating an infringable work if a reproduction of these was also a copy of the “intellectual creation of the author of the user manual.” The question however, as left open for national courts to consider.

The ECJ’s attempts to balance the competing rights of users and the copyright owners of computer programs clearly come to the fore in this ruling. While this case’s most obvious implications mean that the ECJ heeded Adv.-Gen Bot’s warning and prevented the unprecedented monopoly of functionality, it remains to be seen whether both copyright owners and users can rest easy, especially given the vast sums of capital that are at stake in the often-precarious computer software industry.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

The post It’s Official: Functionality is Uncopyrightable, Says the European Court of Justice appeared first on IPOsgoode.

In doing so,��Adv.-Gen. Bot has reaffirmed Justice Arnold’s preliminary ruling, with respect to the prevention of a monopoly on source and object codes of computer programs by the copyright owner. The opinion refers to the interplay between the two EU directives, their transposition into UK national law through to the , and the general adherence of both of the above to of the . As per the facts of the case, the plaintiffs, SAS Institute developed the ‘SAS System,’ a software program that ran on its own programming language, making it impossible for existing clients to run their application programs in any other form without “considerable investment.” To continue using the SAS components required clients to obtain licenses from the SAS Institute. The respondent, WPL Programming had developed software that allowed execution in the SAS programming language, and, according to , also allowed “access and process data stored in SAS's proprietary format, eliminating the need to buy licenses from SAS if users want to develop new functions to analyze their data.”

Even as WPL Programming admitted its intention to follow the functionality of the plaintiff’s program as closely as possible, it denied SAS Institute’s claim of infringement of the overall computer program itself, since it had no access to the latter’s code when designing its own code. Further, previous rulings in the UK courts had also shown that studying a program’s code to determine how it works (decompilation) was not deemed to be an infringement of the owner’s copyright.

While��Adv.-Gen. Bot was clear that the protection of computer programs was defined as extending to expression, and not “ideas, procedures, methods of operation or mathematical concepts,” he also mentioned that the legal definition of ‘expression’ with respect to functionality was left open to interpretation, in order to accommodate future technologies within the framework of Directive 91/250. The��Advocate-General then deemed that functionalities were ‘dictated by a specific and limited purpose,’ finding them closer to an ideas rather than expression, and hence, not copyrightable. By equating a computer program to a literary work, the opinion also stated that Article 1(3) of the Directive cited originality, and the time, effort and level of skill and judgment invested in the expression as the only criteria to determine copyrightability.

When considering whether the programming language was protectable under Directive 91/250,��Adv.-Gen. Bot again drew a parallel between computer programs and literary works, stating that the language the former was written in merely permitted the actual expression, and not being part of the latter, was not copyrightable. With respect to interfaces however, the��Advocate-General opined that 91/250 did not preclude these from copyrightability, provided that they formed a substantial part of the expression of the computer program itself. Also, Article 6(1) of the same directive was deemed to be indicative of decompilation of the program by a licensee as being permissible, if it was for the purpose of interoperability. Additional proposed limits included the licensee having to demonstrate “the form of the code for the purposes of interoperability with the elements of his own program,” and ensuring that the original code was not merely recopied. ��Finally,��Adv.-Gen. Bot referred to Article 2(a) of Directive 2001/29/EC to recommend that certain elements of a computer program could constitute infringement if reproduced in manuals, as long as they were found to be “expressions of the author’s own intellectual creation.”

Though non-binding, the opinion is an influential intermediary move in determining the nature and scope of the copyrightability of computer programs. The ECJ is due to consider the case in 2012, and in the meantime, scholars have already deemed Adv.-Gen. Bot's opinion as a step in the right direction, emphasizing that to ensure fair monopolization of software programs.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

The post Advocate-General’s Gumption Could Keep the ‘Fun’ in Computer Functions appeared first on IPOsgoode.

While each of the two bills were introduced separately— SOPA on October 26, 2011 and PIPA on May 12, 2011— it was their combined effect with respect to copyright and trademark protection within the US that has come to be touted as stifling much more than just online piracy. Critics have been vocal about the threat of the bills, saying that the proposed legislative changes meant to curb infringement��are , citing that��freedom of expression and are being harmed in the process.

Supporters of the bills, on the other hand, have said that the , pointedly emphasizing that the purpose of the bills was to target foreign websites that were ‘primarily engaging’ in illegal activity, also noting that those websites which were conducting their businesses legally would not be subject to the enforcement legislation introduced in the bills. have been adamant of their support of SOPA. Citing SOPA to be a ‘proactive measure,’ these organizations have insisted that the measures introduced in the bill are designed to protect both intangible rights, and the ‘real jobs’ linked to these rights. In their view, it was SOPA’s protection of “ the industry’s ability to foster creativity, provide opportunities, and ensure good jobs,” that was worthy of support and laudability.

The between the two sides seem to revolve chiefly around the degree of protection deemed necessary, the purported effects of allowing that protection to be governmentally mandated, and the liability of users and hosts of the infringing content. The that ISPs block content that directed, linked to, or facilitated infringement in offshore domains did not sit well with Google, Wikipedia and Reddit (among others), i.e. websites built on the linking and exchange of information. The concern here was more than just policy-related, as the over one or a few links deemed ‘rogue’ might be seen as too prohibitive for small buisnesses. However, proponents of the bills are quick to point out that their main aim has always been to , perhaps suggesting that the harsh language of the legislation was in proportion to the magnitude of the pirating that was to be combated, and that the vehement public opposition to the bills might actually be . At the same time however, the , because of their potential to limit innovation and promote censorship, while maintaining that US IP law does need an overhaul with respect to anti-piracy measures, sent an undeniably powerful message to SOPA’s proponents. So also did its condemnation by Sir Tim Berns-Lee, one of the creators of the World Wide Web, whose main objection was the of his invention.

While the media predominantly provided polarized coverage on the issue, several alternative and noteworthy viewpoints on the matter provide insightful analyses of the key issues at play. While the protests and debates led to the of both bills on January 20, 2012, the questions raised by both sides have yet to find a satisfactory resolution. Lamar Smith, the Republican Senator who originally introduced SOPA into Congress, and that the bill was intended to protect all forms of intellectual property in the US, and not merely online piracy. that the ‘illegal theft’ of tangibles was just as relevant to SOPA’s provisions, and that the battle was more than just between ‘the entertainment industry and high-tech companies.’

Another major voice in the pro-SOPA camp has been that of Floyd Abrams, whose detailed outlined the constitutionality of the legislation. The letter begins by stressing that while the protection of copyrightable material has been an essential aim of US law, the country’s Constitution also aims at a balance between “protections for speakers and creators, in a context, while stimulating future creativity.” Professor Abrams is clear however, that while��free speech��must be given��importance, this right cannot exist in a digital vacuum when it comes to the Internet. and by extension, of the consequences of its infringement.

Danah boyd’s comparison of two aspects of internet piracy— as a — also highlighted the confusion that seemed embedded in the debate from the start; whether SOPA and PIPA were actually preventing piracy, or stifling the participatory culture of the Internet. Further, of whether SOPA, if enacted, could actually help promote the US economy speaks to the core function of US copyright legislation— the incentivization of the production of creative works. Sanchez ultimately asks for a ‘real and quantifiable link’ between the two, claiming that until such a connection is found, strong legislation such as SOPA that ‘reports the death of the industry’ might not be in anyone’s best interest.

Finally, Professor Jason Mazzone contends that SOPA’s passage would only have increased a trend that began long before the debate over the bill— that of ‘,’ where copyright owners use contractual provisions to extend their rights over areas where legislation does not give them access. Mazzone contends that SOPA, with its emphasis on harsher enforcement, could have given copyright owners the freedom to ‘disrupt sites that do not infringe a copyright, interfere with fair uses of copyrighted works, and take other steps that evade the limits that the Copyright Act...’ something that opponents were very keen to avoid right from the start.

Senator Smith has already his intention push for SOPA’s passage in February 2012, when the next round of talks on the bill is to resume. There have been amendments made to the latest version, such as the removal of the provision that would have required service providers to block infringing websites from subscribers through court orders. Skepticism is still rife however, with critics emphasizing that simply tinkering around with the edges is unacceptable. Whether SOPA 2.0 will survive its troubled birth is an issue that will no doubt remain on many minds in the days to come.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

The post On Suspending SOPA and Piping PIPA Down appeared first on IPOsgoode.