Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

I recently attended the Copyright Society of the USA’s event, , which featured IP Osgoode’s own Professor David Vaver alongside Professor Ysolde Gendreau from the University of Montreal in a discussion regarding the Supreme Court of Canada’s recent decision in The unanimous decision written by Rowe J. clarified provisions of the , ruling that the Act only requires users to pay one royalty fee to stream works online as opposed to the two fees proposed by . You can read more about the decision in my summary published on the last week.

After brief introductions, the two speakers began by providing necessary context for the recent decision, including Parliament’s intentions behind the 2012 amendments to the Copyright Act. Prof. Gendreau first highlighted the three main copyrights enshrined in the Act’s : the right to produce or reproduce a work, to perform a work in public, and to publish the work. Section 3 includes several subsections which list various “examples” or “actions” encompassed within these rights – the relationships between the main rights and the subsections, Prof. Gendreau highlighted, were key questions before the court. The speakers also discussed a previous SCC decision that interpreted for the first time back in 2012; in a narrow 5-4 majority, held that the act of downloading a work did not amount to “communicating” said work to the public by telecommunication under section 3(1)(f) (para 4). Furthermore, “making available” is not a separate and compensable right, but rather part of the communication right encompassed within 3(1)(f).

Profs. Vaver and Gendreau briefly touched upon the use of international laws and treaties in interpreting domestic legislation, cautioning against cases of the “tail wagging the dog” in statutory interpretation. They emphasized the importance of interpreting domestic statute first, and international law () is a useful but secondary factor that provides context.

Interestingly, the speakers differed in their opinions about who the Copyright Act ultimately protects. While Prof. Vaver believed that the Act seeks to balance the rights of end users with original authors, Prof. Gendreau was of the belief that the ������’s protections lean towards the side of author. However, both noted that the SOCAN v ESA decision appears to freeze copyright as it is when the new technology is introduced, rather than growing alongside the subsequent adoption and growth. They both found that the SCC decision made a firm distinction between the acts of downloading and streaming, where in reality the line is blurred by a user’s ability to bookmark and cache online content.

What are your thoughts on the recent SOCAN v ESA decision? IP Osgoode invites you to share your thoughts in the comments section below.

The post Notes on CSUSA’s Breaking News Series: Supreme Court of Canada Rules on “Making Available” appeared first on IPOsgoode.

Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On July 15, 2022, the Supreme Court of Canada (“SCC”) released its for the case Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) v. Entertainment Software Association (“ESA”). The unanimous decision written by Justice Rowe clarified provisions of the ��(the “A����”), ruling that the Act only requires users to pay one royalty fee to stream works online as opposed to the two fees proposed by .

Judicial History

In 2012, Parliament amended the Copyright Act to align copyright legislation with the , which Canada signed in 1997. Among the changes was the addition of section which was meant to clarify subsection ��defining “communication of a work or other subject‑matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.”

As the central authority for the approval of tariffs, the held proceedings to determine the amount of royalties to be paid, receiving submissions from various groups on how to interpret the new sections of the Copyright Act. , a music licensing organization representing over 175,000 music creators, publishers and visual artists, argued that s. 2.4(1.1) required royalties to be paid whenever a copyrighted work was posted on the Internet for public access. The Copyright Board concurred, deeming that the act of making works available was in itself a separately protected and compensable activity. In effect, there would be two payable royalties: one for when the provider makes the work available online, and another for when a user actually streams or downloads a work.

The Federal Court of Appeal the Copyright Board’s decision, concluding that Parliament did not intend to introduce the two-royalties system for users accessing works online.

Key Takeaways

Although differing in the exact standard of review for the Copyright Board’s decision, the SCC unanimously dismissed SOCAN and Music Canada’s appeal. The SCC found that the Copyright Board and SOCAN’s interpretation of the Copyright Act’s new sections undermined the purpose of the Act itself. As per the principle of , “distributing functionally equivalent works through old or new technology should engage the same copyright interests […] what matters is what the user receives, not how the user receives it” absent parliamentary intent to the contrary. Section 2.4(1.1) merely clarifies that a work is “communicated” when it is made available or uploaded – as , streaming begins when the work was made available online and continues throughout to the end user’s accessing of the work. Thus, section 2.4(1.1) does not entitle authors to an additional “making available” royalty for making the work available online. It is merely part of the public performance right enshrined in section 3(1)(f).

The SCC also addressed two non-copyright specific issues relevant to the larger practice of law in Canada. Firstly, the SCC recognized a under to apply for instances of concurrent first instance jurisdiction, which allows both administrative bodies and courts to have this first instance jurisdiction over a legal issue in a statute (). Secondly, the Court reiterated the role international treaties play in statutory interpretation. Although WIPO’s Copyright Treaty is relevant to the statutory interpretation of the Act, it cannot “overwhelm clear legislative intent” (). The SCC found that the Copyright Board erred by privileging the Copyright Treaty and Canada’s signatory obligations over the domestic Copyright Act in its interpretation.

The Copyright Society of the USA will host a , breaking down the decision and exploring its broader implications for all stakeholders in the arenas of licensing, collective administration, and enforcement. The event features IP Osgoode’s own Professor David Vaver alongside Professor Ysolde Gendreau from the University of Montreal. It will be taking place virtually on Wednesday, August 3, 2022, at 12pm EST. Details and registration information can be found

Further reading:

Breakdown of SOCAN v ESA’s administrative law related holdings:

US Government’s Making Available Study:

The post SOCAN v ESA: Royalties in the Age of Streaming appeared first on IPOsgoode.

In Canada, methods of medical treatment are unpatentable subject matter. This prohibition originated from an old provision of the Patent Act (Section 41) interpreted by the Supreme Court of Canada in . The statutory provision has since been repealed but the subject matter prohibition survives as a common law doctrine. The justification for the prohibition is agreeable: fear of patent infringement should not deter medical practitioners from applying their exercise of skill and judgment (see ). However, the scope of the prohibition is less agreeable. To this day, the definition of a “method of medical treatment” remains unclear, especially in the context of pharmaceutical use patents. Phelan J. in admitted that the jurisprudence on this matter “is not entirely consistent” (also see Manson J’s comment at ).

For example, consider the following two types of claims:

• “the use of compound X to treat disease Y in a dosage range of A to B mg”
• “the use of compound X to treat disease Y, at a dosage of A mg”

The first claim is invalid because the dosage range encompasses a choice to be made by a medical practitioner prescribing compound X. The second claim specifies a fixed dosage rather than a range and is therefore patentable. The Federal Court made this distinction in . There are many problems with this rule. One problem is that this distinction does not serve the primary goal of unimpeded medical practice, even if a claim for a fixed dose can theoretically be infringed by a physician and therefore interfere with physicians’ exercise of skill and judgment. Furthermore, an interesting is that the distinction is purely formal, as a patentee could simply split a claim with a dosage range into multiple claims with fixed doses. While I agree that courts have fixated too much on form over substance, I am curious about whether a court would treat multiple claims with different doses the same as one claim with a dosage range. Another interesting is that invalidating a claim for encompassing a physician’s exercise of skill and judgment is difficult to reconcile with the Supreme Court’s decision in where a claim for the use of a compound at an “effective amount” was held patentable. Surely, a physician deciding an “effective amount” exercises the same (if not more) skill and judgment required to choose a dosage within a dosage range. ��

In a case from this year, , the common law doctrine became even more convoluted. The Federal Court held that a fixed dose claim, similar to the example above, was unpatentable because the specified dose was “not appropriate for all patients” (partly due to potential adverse effects) and a prescribing physician would need to exercise skill and judgment in deciding whether to prescribe at the claimed dose amount (Manson J at ). This illustrates another problem with the earlier distinction, that a claim with a fixed dose would still encompass a choice to be made by a medical practitioner – the choice to prescribe at the fixed dose or at a different one (or not at all).

So, what is the solution to this confused area of law? Could not courts create a common law defence for medical practitioners against patent infringement claims? Obviously, some caveats would be needed. One should be that courts must assess whether an infringement action could deter medical practitioners from their duty of care to patients. But a common law solution may be preferable to waiting indefinitely for legislative change. Currently, patents do not pose a serious threat to medical practice because medical practitioners are not targeted by pharmaceutical patentees which prefer going after the generic companies which directly compete with them.

Courts have already virtually created a common law defence, but a needlessly complex and roundabout one that depends on seemingly arbitrary claim-by-claim rulings on patentability. If the jurisprudence remains as it is or continues to develop along these lines, the public could be deprived of some valuable potentially life-saving inventions.

The post What is a Method of Medical Treatment? appeared first on IPOsgoode.

Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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Photocopying classroom materials in a K-12 public school system may have seemed harmless and benign before the 2012 Supreme Court of Canada case, . The decision reframes traditional teaching pedagogies by considering the artist and owner rights under copyright law. In doing so, I saw an opportunity to compile a list of resources for educators to make informed decisions about how they use and distribute learning materials (located at the end of this article).

Countless teachers throughout my K-12 years printed and distributed excerpts from a short story or a news article outside of our textbooks that held the most evocative paragraphs for pre-reading and open discussion. Other times, we looked at diagrams from an older edition of a textbook that were “much better for the purposes of our class.” While working as a tutor, I often collected scans of creative math problems from various textbooks.

Despite its benefits, copying materials can present consequences for the content’s owners, artists, and publishers. As a copyright collective, made royalty agreements during the years of 1991-1997 with all Canadian provinces and territories, except Quebec (which has its own collective, ), permitting use of copyright-protected content in primary and secondary schools on a per-student basis. These agreements were slated for renewal in 2004, during which Access Copyright sought to restructure the royalty system to reflect the quantity and extent of photocopies made in schools. Four different categories of usage arose from an assessment of school photocopying habits. The one in this case, Category 4, comprised of photocopying instances where teachers would assign readings from materials outside the textbook.

Access Copyright argued that Category 4 circumstances were not covered under the fair dealing exceptions and thus subject to tariffs. The Copyright Board agreed, claiming that despite the permissible use of the photocopied materials for educational purposes, the use was not fair and so royalties needed to be paid. A series of appeals regarding the definition of fairness ultimately led the case to the Supreme Court.

What constitutes “fair” dealing? The landmark 2004 SCC case, [CCH] defined the tests for fair dealing. It is the potential copier’s responsibility to ensure that their use passes the tests. As Abella J. summarizes in , fairness is assessed considering the “purpose, character, and amount of dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.” According to the , copies made without a student’s request for access do not fall under the permissible “private study” purpose. Consequently, copies made by teachers for the purposes of in-class instruction, pre-readings, and supplementary materials may be considered infringements of copyright. Likewise, I probably also would need to pay royalties for my small collection of math problems and diagrams.

In a 5/4 split, the SCC ruled in favour of educational institutions. , Abella J. contended that a teacher’s goal of instruction—facilitating the education of their students—was necessarily “symbiotic” with students’ studying. She took issue with how the Copyright Board misapplied other factors of the CCH tests, which arbitrarily placed educator copying habits in competition with the textbook market. She also pointed out the possibility of schools being doubly charged by Access Copyright, first upon purchase of the original work, and again upon copying. Note, was a unanimous SCC decision that reaffirmed Justice Abella’s emphasis on end-user considerations in a post-secondary setting.

Where do these cases leave Canadian educators now? They may continue to teach using copyright-protected materials, and are not required to destroy any copies by shredding them en masse or, theatrically, igniting a large pyre.

Overall, Alberta (Education) v Access Copyright serves as a useful reminder in understanding the legal framework to use original works. Below are several accessible resources that may also inform one’s judgement of fairness and fair dealing, as well as some interesting “further reading”.

In particular, the is a fantastic Canadian resource that can guide educators’ decision-making and reflection processes for the materials in question. It also points out any citation requirements (e.g., author/artist/owner name, title) and/or digital safeguards necessary to limit access to the material.

Further Reading:

Dr. Meera Nair's interesting take on the importance of copyright education for educators in classrooms and the promotion of creative thought:

IPilogue’s Sabrina Macklai writes about the recent 2021 SCC decision regarding post-secondary fair dealing in 91��ɫ v Access Copyright:

Council of Ministers of Education Canada’s resources for teachers:

Fair Dealing Canada:

Access Copyright’s information and services tab for educators:

Canadian Association of Research Libraries’ Resource Library’s copyright open educational modules for university instructors and staff:

Osgoode Hall’s Professor Giuseppina D’Agostino’s comparative analysis of Canadian, UK, and American fair use/dealing:

The post Revisiting Alberta v Access Copyright: Resources for K-12 Educators in Canada appeared first on IPOsgoode.

Photo by from

Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

On July 30, the Supreme Court of Canada released their much-anticipated judgement in [91��ɫ]. The unanimous decision, written by Justice Abella, endorses several past Supreme Court judgements including and . Perhaps one of the most important copyright decisions since the 2012 ‘’ cases, 91��ɫ reflects the Supreme Court’s intention to develop Canadian copyright law in a way that maintains a balance between users’ and creators’ rights.

Background

Historically, Canadian educational institutions negotiated licence agreements with copyright collectives Access Copyright and Copibec to fulfill their copying needs within the collectives’ repertoires. In 2010, Access Copyright sought the Copyright Board’s approval for a new proposed tariff for post-secondary education institutions of a flat fee of $45 per full-time university student and $35 per full-time college student per year. This was a drastic increase from the fees stipulated in the 1994 to 2010 licence agreement between Access Copyright and post-secondary institutions. On December 23, 2010, the Copyright Board granted Access Copyright an interim tariff at the rate of $3.38 per full-time student and $0.10 per page for course packs, receiving . In anticipation of the upcoming academic session in July of 2011, 91��ɫ chose to “opt out” of Access Copyright’s licensing agreement and rely on alternative means, particularly the “educational purpose” under the , to continue reproducing copyrighted works for their students. Like with most educational and library institutions, 91��ɫ published internal “Fair Dealing Guidelines” that interpret section 29 to help 91��ɫ faculty and staff comply with the law. Access Copyright subsequently sued for copyright infringement. 91��ɫ then counterclaimed and sought a declaration that its Fair Dealing Guidelines complied with section 29 of the Act.

In 2017, ruled in favour of Access Copyright in all regards, claiming that the interim tariff is mandatory and that 91��ɫ’s Fair Dealing Guidelines and its actual practices are not fair under section 29. In 2020, the reversed the lower court’s decision on the tariff issue, finding that tariffs set by the Copyright Board are only applicable to those voluntarily under a licence with Access Copyright and therefore not mandatory. However, on the fair dealing issue, the Federal Court of Appeal found that the lower court did not make any “palpable and overriding errors” in conducting their fair dealing analysis. 

Issues at Appeal

The Supreme Court appeal considered two issues: 1) is the tariff mandatory? and 2) if the tariff is mandatory, are 91��ɫ’s Fair Dealing Guidelines “fair” such that their activities may be covered by section 29 fair dealing?

Access Copyright’s Non-Mandatory Interim Tariff

The Supreme Court upheld the Federal Court of Appeal’s reasoning on the tariffs issue, agreeing that the interim tariff is not mandatory and thus not enforceable against 91��ɫ. They affirmed that users are free to pursue alternative methods to lawfully copy works, such as acquiring transactional or site licences or relying on section 29 fair dealing. In their reasons, they drew heavily upon arguments made by Professor Ariel Katz at the University of Toronto Faculty of Law, who asserted that where a user makes an unauthorized use, the appropriate remedy is an action for infringement—one that Access Copyright lacks standing to initiate.

Considering the Ultimate User in Fair Dealing Analyses

Although the Court deemed it inappropriate to rule on fair dealing, given that this is not a copyright infringement suit, Justice Abella nonetheless provided helpful obiter on fair dealing in Canada. Namely, she clarified that the reasoning of both the Federal Court and Federal Court of Appeal on the fair dealing issue is not endorsed. Both lower courts erred in their evaluation of the purpose of the work, by only considering the institutional perspective. As Justice Abella discussed in multiple past decisions, including Alberta, the end-user perspective must also be considered when assessing the fairness of a dealing. In this case, but for the students, there would be no copying. Therefore, the judgement must consider the students’ perspective. The institutional purpose is not completely irrelevant, but it must be interpreted in light of the end-user. Here, Justice Abella found that educational institutions have no “ulterior or commercial purpose” when copying for their students’ benefit under fair dealing, even if the institutions benefit financially by saving funds. As the first discussion of the educational purpose of fair dealing since it was introduced during the , the Supreme Court clarifies that the appropriate way to assess an educational institution’s fair dealing practices is to determine whether those practices facilitate their students’ educational purposes in a fair manner, maintaining the balance between users’ and creators’ rights.

91��ɫ adds to a growing list of copyright jurisprudence by the Supreme Court, many of which were spearheaded by the . This latest decision delivers several wins to the users’ rights community, particularly through confirming that users always have the choice to rely on section 29 fair dealing when working with copyright-protected materials. Educators and librarians across the country can breathe a sigh of relief that they may continue to lawfully offer their services, many of which rely on fair dealing, to the benefit of their students and patrons.

The post A Win for Users’ Rights: Supreme Court Finds Access Copyright Tariff Not Mandatory and End-User Perspective Must be Considered in Fair Dealing Analyses appeared first on IPOsgoode.

Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

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May 21 was a historic day for copyright fanatics around the country. Not only did the Supreme Court of Canada hear the much-anticipated appeal, an important case on the nature of copyright collective licensing and educational fair dealing, but it was also the Honourable Rosalie Silberman Abella’s final hearing as a Supreme Court Justice.

During her 17 years on the highest court in Canada, Justice Abella was instrumental in advancing users’ rights in Canadian copyright law, particularly helping develop Canada’s fair dealing jurisprudence. She wrote reasons for several landmark copyright decisions, even delivering judgements in four out of the five 2012 “” cases. Some of her most notable copyright holdings include , , and .

In Alberta, Justice Abella wrote for the 5-4 majority, performing a rigorous analysis of the fair dealing test as laid out in The decision interpreted fair dealing for the purpose of private study. Justice Abella, for the majority, found that the correct way to interpret the purpose of a dealing is to consider the perspective of the end-user, in this case, students. When teachers photocopy short excerpts of works to distribute to students as part of class instruction, their dealings qualify as fair dealing for the purpose of facilitating students’ private study.

In SOCAN, Justice Abella once again took the pen to deliver the judgements of the unanimous court. Like Alberta, the case concerned the proper interpretation of fair dealing, this time for the purpose of research. Looking through the perspective of the ultimate user, music stores providing short previews of music may be considered fair dealing for the purpose of research by enabling consumers to determine what they wish to purchase. The Court emphasized that upholding users’ rights was “central to developing a robustly cultured and intellectual public domain.”

In Keatley, Justice Abella affirmed the importance of balancing creators’ rights with users’ rights, claiming that all provisions of the Copyright Act must be interpreted with this balance in mind “so that the Copyright Act continues to further the public interest.” In the decision, the Supreme Court interpreted section 12 of the Copyright Act, which deals with Crown copyright. Though they ultimately found the Crown had copyright, they clarified that Crown copyright has a narrow scope and is limited to situations where the Crown took a substantial role in the creation or dissemination of the work.��

Users’ rights are still a growing concept in Canadian copyright law. Though they were first introduced in the , through duplicating the fair dealing section 2(1)(i) of the U.K.’s , users’ rights did not gain the same consideration as creators’ rights until the early 2000s following the decision in . Here, the Supreme Court affirmed that copyright is “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”

Justice Abella’s decisions in Alberta, SOCAN, and Keatley provide guidance on interpreting the fair dealing provisions in section 29 of the Copyright Act; they are to be given a large and liberal interpretation and should be considered not as mere exceptions but as users’ rights. According to Justice Abella, the fair dealing component of Canada’s copyright law is “,” symbolizing the importance of the users’ rights framework in balance with creators’ rights.

When Justice Abella was appointed to the SCC in 2004, section 29 did not include the purposes of education, satire, and parody. These were introduced during the to the Act and have yet to be interpreted by the Supreme Court.

One of the major issues on appeal in 91��ɫ is how to properly interpret the educational purpose of fair dealing. The copyright collective Access Copyright argues that 91��ɫ’s copying of works to create course packs is to alleviate financial burdens on the university. In contrast, 91��ɫ argues that their copying falls under fair dealing since it is to facilitate the education of their students, as the ultimate users. Given the jurisprudence, it seems likely the Supreme Court will rule in favour of 91��ɫ, at least on the fair dealing issue.

Although a decision for 91��ɫ has yet to be released, it is quite fitting that possibly the last decision Justice Abella will pen for the Supreme Court is on a field she has transformed over the past two decades. It is fair to say the Canadian copyright community, especially advocates of users’ rights, will sorely miss Justice Abella on the bench.

The post The Fairest of Them All: Justice Abella’s Legacy in Canadian Copyright Law appeared first on IPOsgoode.

Summary of the SCC Decision

��On September 26, 2019, the SCC clarified that the Ontario government owned all land surveys produced by Ontario’s land surveyors. These surveys were filed in Teranet’s online land registry database because the Ontario government delegated this responsibility to Teranet. This assignment authorized Teranet to profit from the public’s viewing of the land surveys.

The Majority held that a work must either be prepared or published by the government for Crown Copyright to vest. Justice Abella narrowed the notoriously convoluted section 12 of the Copyright Act by determining that government publication alone is not enough to trigger Crown Copyright. The work published must also involve a sufficient degree of government direction or control over either the person publishing the work or the nature, form and content of the final version. The court determined government control by referring to the statute. Therefore, Crown Copyright vested because the Land Titles Act and Registry Act gave control to the Ontario government over land survey information.

Chief Justice Wagner reasoned that the degree of sufficient direction or control exercised by the Crown was irrelevant. Instead, a work must serve a public purpose by which vesting the copyright in the Crown would further that purpose.

The Keatley Decision Did Not Alleviate Legal Ambiguities�� ��

While the SCC narrowed the scope of section 12, the court did not clarify the provision’s compatibility with the purpose of Canadian copyright law. In Keatley, the SCC articulated that Crown Copyright was meant to protect works prepared or published by the government in order to guarantee the authenticity, accuracy and integrity of the works in the public’s best interest. The SCC was clear that this purpose must be balanced with creators’ rights to be free from de facto expropriation by any level of government. However, this justification does not take into account copyright law’s purpose or its parameters.

Firstly, Keatley may allow for Canadian governments to claim copyright protection in fact-based works. As , no interested party in Keatley should have copyright in the land surveys. For a work to be protected under the Act, into form using skill and judgment. This criteria was not addressed by the SCC because the disputing parties did not challenge the proprietary elements of the fact-based land surveys.

Secondly, the purpose of the Act is t. As the Copyright Act should not be used as a tool to further the Crown’s control over information that should be openly available for the public to access and copy. As section 12 currently stands, any member of the public may infringe copyright if they amend or disseminate a protected work without government permission. Yet Professor Vaver notes that nowhere in the SCC jurisprudence is copyright legitimized as a tool to stifle freedom of expression. Finally, awards the government, with the same, if not more, exclusive rights and privileges as any other creator, which is evident in the definition of copyright in section 3 of the Act. Crown Copyright not only from reproducing information that should be publicly available but also commodifies this information through a monopolization process. This approach may have been valid centuries ago but, when applied today, .

These contradictions may result in problematic scenarios in light of the COVID-19 crisis. For instance, some government publications may neither receive appropriate critique from non- contracted experts nor be disseminated through methods that would fall outside of the Act’s fair dealing provision, section 29.

Is the Time Ripe for Policymakers to Amend Section 12?

Crown Copyright reform may be the only topic within in which most experts agree. The of the Standing Committee on Industry, Science and Technology (INDU) recommends that the government’s copyright exercise over publications created in the public interest should be the exception rather than the rule. Recommendation 11 advocates for an open licensing scheme consistent with transparent government and data management to improve Crown Copyright management.

In Canada, many copyright stakeholders would prefer to simply abolish Crown Copyright and mandate the protection of confidential publications to other statutes, as demonstrated in INDU’s report. Consensus was even reached between the NDP and Conservatives, as . Abolishment could be a viable option because there are other solutions to authenticate government sources that do not require the Copyright Act. the government can more effectively authorize documents through official mechanisms, such as a seal, that would allow the public to modify or publish their own unofficial version of the work.

Canadians Must Remain Alert to Crown Copyright Laws to Avoid Infringement

Section 12 of the Act remains good law and Canadians must remain vigilant of any potential legal implications. Crown Copyright may apply if your work required government approval prior to development; received government funds; or was directed by statute. Professor Craig also advises to be aware that municipal, provincial, and federal governments have different licensing schemes. ��To be granted permission to adapt, reproduce, revise or translate Federal materials, you must contact at PCH.info-info.PCH@canada.ca. Heritage Canada specifies: “”. Until policy-makers direct Canadian Copyright law, Canadians must be alert to the risk of infringing Crown Copyright.

Written by Natalie Chodoriwsky. Natalie is going into her third year at Osgoode Hall Law School, and she is also an IP Innovation Clinic Fellow.

The post Revisiting Teranet v Keatley Surveying: An Analysis of Crown Copyright and its Implications for Canadians appeared first on IPOsgoode.

[Your ISP] has received a notice from a content owner that alleges an act
of copyright infringement from an Internet Protocol (IP) address assigned to you
at the time of the alleged infringement. We are required by law to let you know
that we have received this notice.

The law in question is the Notice and Notice scheme (). The latter provision, s 41.26, outlines the steps that an ISP must take once it receives a notice of claimed infringement:

1. The ISP forwards electronic notice to the person associated with the IP address alleged to be source of infringement.
2. The ISP keeps records for six months that will allow one to determine who was associated with that IP address.

Now, while you may not realize it, there are entire systems in place to get that notice to you and to further produce your identity to the copyright holder (if the ISP is so ordered by a court). Like most things, getting that system in place and using it costs time and money, and since so many allegations of infringement go out each day (around 5,000 per day from Rogers alone), it turns out to be quite a bit of time and money indeed.[i] In the recent case of [Rogers], the Supreme Court of Canada helped clarify who exactly should foot the bill.

Parliament structured s 41.26 in such a way that ISPs could be reimbursed according to rules at the discretion of the Governor-in-Council. The Cabinet, as is its prerogative under s 41.26(2), decided not to entitle ISPs to any reimbursement for complying with the Notice and Notice regime. One is left, then, with the common law to fill any gaps (notably, actually producing the identity of the alleged infringer is done by application, not by statute).

In Rogers, Justice Brown, writing for eight justices, makes some key observations about this setup. Firstly, he refers to the legislative intent behind ss 41.25 and 41.26 of the .[ii] The background of the 2012 changes to the Copyright Act makes clear that Parliament intended to balance the interests of not only copyright owners and content users, but also of “Internet Intermediaries”.

Secondly, Justice Brown clarifies that the records that must be stored under s 41.26 refer to ones which would allow the ISP to determine who the alleged infringer is.[iii] It does not include the act of translating this information into a means which would be accessible and comprehendible to the copyright owner or the courts. It is this finding which opens the door for ISPs to claim expenses for complying with Norwich orders, separate from compliance with Notice and Notice.

However, according to Justice Brown, it would not be reasonable to reimburse the ISP for work it has already done under the Notice and Notice scheme.[iv] It is this final idea which appears to be the point of contention between Justices Brown and Côté.

Justice Côté agrees with the other justices that “any work required to determine an alleged infringer’s identity and disclose that identity … is not subsumed within the notice and notice regime.”[v] In practical terms, though, the process required to comply with a Norwich order moves beyond verifying pre-existing information obtained by the ISP under Notice and Notice. Instead, it requires ab initio excursions, on the part of the ISP, into figuring out the identity of the alleged infringer.[vi] This is especially the case given the possibility of information changing over the six-month period, and the fact that the statute only requires a ‘static’ record from the time at which notice was received.[vii]

Regardless of their differences, both sides agree that ss 41.25 and 41.26 are not so broad as to exclude the possibility of reasonable reimbursement for ISPs, in contrast to the Federal Court of Appeal. Indeed, both sides also concur in the ultimate result. That is, the matter was remitted to the motion judge for an adequate assessment of the reasonability of Rogers’ process and determination of reasonable costs (although one is sympathetic to Justice Bosworth in that, before the law was clarified on appeal, it wasn’t clear that any fee would have been reasonable, regardless of what process Rogers was using).[viii]

Beyond the reasoning, one is left with the feeling that something is missing from both opinions. The approach seems to be unquestionably one that treats ISPs as a distinctly third party to the issue of the Notice and Notice regime and Norwich orders. Is this really the case? After all, the very acronym stands for internet service provider. The third party in this case provides the alleged infringer access to content for a fee, and is able to pass along those costs to content users.

Is Rogers just about the entitlement of third parties to reasonable costs for complying with Norwich orders? Or might it fit with a broader common law principle that it is up to the holder of copyright to pursue the enforcement of that right? As pointed out in Rogers, the Government of Canada has seen fit to balance the rights of content users and copyright holders by having the third party bear the costs. But when faced with the reality that those costs can be passed on (one way or another) to content users, maybe the ruling in Rogers becomes much more about user rights than statutory interpretation.

Peter Werhun is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

[i] at para 63.

[ii] Ibid. at para 25.

[iii] Ibid. at para 43

[iv] Ibid. at para 52.

[v] Ibid. at para 62.

[vi] Ibid. at paras 63-64.

[vii] Ibid. at para 68.

[viii] Ibid. at paras 56-58, 74-75.

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The afternoon event was structured into three panel discussions -- titled "Copyright Scope and Management," "Fair Dealing," and "Technological and Copyright Neutrality" -- in which authors featured in the new book provided short presentations summarizing their findings and analysis on some aspect of the����- the series of five copyright decisions released in the summer of 2012 by the Supreme Court of Canada. The panels then proceeded to take questions from the audience.

While all three panels were informative and interesting, with��, fair dealing has resurged as a hot topic in Canada. The "Fair Dealing" panel, led by Michael Geist with ��and��, provided insight into how courts will likely treat fair dealing in future and how educational institutions may react to the decision. Before I discuss the panel’s treatment, a background overview of fair dealing in Canadian copyright law may be useful.

A Short History of Nearly Everything About Canadian Fair Dealing

The law of fair dealing () was clarified by the SCC in��. There the Supreme Court described fair dealing as a user right - "more properly understood as an integral part of the��Copyright Act��than simply a defence" (2004 SCC 13, para 48). The Court also laid down a non-exhaustive list of six factors that need to be evaluated to determine if a dealing was fair. This evaluation of fairness is part of a two-part test, the first being whether the dealing is for one of the allowable purposes listed in the��Act��(more on this later).

Questions relating to fair dealing appeared twice at the SCC in the 2012 Pentalogy, in ��and�� IPilogue coverage can be found����and��.

In Access Copyright, the Court found in favour of the Alberta Education Board, saying that classroom copies made by teachers of excerpts from copyright protected material could be considered fair dealing for the allowable purposes of "research or private study", broadly construed. ��The court also determined that a teacher's purpose for copying could not be separated meaningfully from the purposes of the teacher's students. The teacher and her employer could therefore benefit as facilitating the fair dealing purpose of the students since it is the end user’s purpose that is relevant on the question of fairness.

In��Bell, the SCC determined that providing 30- to 90-second previews of songs for customers via streaming was not an infringement of copyright and so not subject to a SOCAN royalty tariff. The Court stated that these previews could be considered as "research" on whether or not to purchase the whole song and, being fair in relation to that purpose, passed the second part of the��CCH Canada��test.

Both decisions have caused a number of IP lawyers to modify their previous conception of fair dealing in Canadian law.

Fair Use 2.0: The Rebirth of Fair Dealing in Canada: Ariel Katz’s Presentation

Has the shift in fair dealing as a result of the SCC's decisions in the Copyright Pentalogy��been a move into uncharted territory, or are we merely back on the course we were always meant to be on? Katz reiterated this point throughout his presentation. While����- the closely related cousin of fair dealing in Canada - provides an illustrative list of purposes by using the words "such as" before them in the U.S. legislation, section 29 of the��Canadian Act��lacks this wording. Most lawyers therefore believe that the list of activities in Canada is exhaustive rather than illustrative, on the expressio unius est exclusio alterius principle ("the express mention of one thing excludes all others").

Katz posits that such a reading insufficiently considers the legislative history of fair dealing, once a judge-made principle of equity in UK common law that was later enacted into the Copyright Act 1911 (UK) and carried forward into the Copyright Act 1924 (Can.). Lawyers involved in the drafting process at the time had strangely little to say about whether the enactment was intended to limit the scope of fair dealing in practice as previously understood. ��From a policy perspective, did or does it make sense to exclude certain areas of use categorically from this user right? Yet with the addition of the categories of parody and satire by the 2012, ��Canadian law will likely continue its restrictive approach, at apparent odds with the original intent of the 1911 and 1924 legislation.

Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair Use - Michael Geist’s Presentation

Michael Geists’s presentation following Katz's was aimed at showing that the restrictive approach to fair dealing would not apply in practice in the future since, after the Pentalogy, Canadians are living in a U.S.-style “fair use” world in all but name.

The Supreme Court’s approach of giving a large and liberal interpretations to the categories enumerated in the fair dealing sections of the��Canadian Act��means that the first part of the fair dealing test - whether the dealing is within the scope of the legislation or not - presents a very low legal hurdle to overcome. Most of the legwork will take place in the second part of the��CCH Canada��test through a consideration of the six “fairness” factors. The shift has occurred because: (1) the list of enumerated fair dealing purposes has grown with the 2012 amendments to the��Copyright Act��in 2012, and most activity should fit into one of the categories, broadly defined; (2) the Court in��Bell��confirmed CCH’s�� generous interpretation of the fair dealing purposes, so that most of the "analytical heavy-hitting" should occur when determining whether or not the dealing was fair; and (3) the Court has focused on the end user’s purpose, making it increasingly easier for the Courts to find that third party activities directed to that purpose equally qualified as fair dealings.

On this view, the concept of user rights has clearly expanded and the question arises how creators view this recalibration of the copyright balance.

Fair Dealing Practices in the Post-Secondary Eduction Sector after the Pentalogy - Samuel E. Trosow’s Presentation

Trosow's presentation was direct and to the point: now that the Courts have confirmed fair dealing rights, universities need to stop contracting out of the rights the legal system has granted them. According to Trosow, in 2010 (6 years after��the decision in��CCH), post-secondary schools were still not factoring fair dealing into their copyright licensing strategies. In 2013, after the Pentalogy, there seem to be few reasons for these institutions to hesitate. Trosow argued that licence agreements with Access Copyright should be terminated at the first available opportunity and that institutions should further develop their copyright practice guidelines to take advantage of their fair dealing rights.

Even with the SCC’s recent reinforcement of user rights in��Access Copyright��and��Bell, post-secondary institutions seem wary of cancelling their licensing agreements with Access Copyright. Trosow stated that the main reasons for this behavior were: (1) institutional risk aversion, (2) overreaching by copyright owners and copyright collectives, and (3) general copyright literacy. Institutions need to make an effort to educate themselves and their staff on how to use materials appropriately to stay within their fair dealing rights . Practices should be developed in an open manner and should act as flexible and useful guidelines rather than rigid workplace rules. For Access Copyright licensing to continue, the collective will need to provide greater value to the institutions beyond what fair dealing provides them.

Reflections

Although perhaps difficult to implement at a book launch, there seemed little discussion on the possible ramifications of the aggressive expansion of fair dealing as a user right. Even in the question periods that followed each panel, only a few individuals raised arguments on the side of collectives and creators.

The Access Copyright��case undoubtedly represented a massive defeat for copyright collectives - organizations that exist to ensure that creators are paid fairly for the use of their works. If courts continue to interpret fair dealing as broadly as they have in recent years, creators may continue to see their piece of the pie shrink ever further. Whether this is or is not a good result, it is necessary for all angles of the problem to be considered if the proper balance in copyright law as described by the Court in�� is to be maintained.

Copyright collectives meanwhile have cause to be worried with what these Supreme Court decisions mean for their future and the creators they represent.�� The foundations of copyright law were not the only thing shaken after the Pentalogy decisions were released in 2012.

Adam Del Gobbo is the Content/Publication Editor of the IPilogue and a JD Candidate at Osgoode Hall Law School.

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This case arose from stalled negotiations regarding minimum copyright fees between the National Gallery and CARFAC/RAAV. Although the parties had initially negotiated the issue, the National Gallery refused to continue copyright negotiations in 2007 after receiving a legal opinion, which determined that CARFAC/RAAV did not have the right to negotiate copyright fees. Once negotiations reached a standstill, CARFAC/RAAV brought a claim before the now defunct .The argument from the National Gallery rests on , which provides that only the holder of copyright or a person authorized in writing by the holder can authorize others to negotiate rights reserved to the copyright holder. Since the organization did not have this authorization, the Gallery reasoned that CARAC/RAAV could not compel them to negotiate on copyright. Moroever, , which allows for organizations such as CARFAC/RAAV to get certification to collectively bargain on behalf of Artists did not supersede the conflicting provisions of The Copyright Act.


CARFAC/RAAV does not rely on copyright law to make its argument. CARFAC/RAAV argues that bad faith rests in the fact that the National Gallery abruptly ended negotiation of the fees after four years of negotiation on the issue.�� Nevertheless, they submit that the right to negotiate a scale agreement does not usurp the artists’ sole right to negotiate on their own behalf. CARFAC/RAAV argues that their negotiations will merely provide the minimum for artists who can then bargain individually with firms for fees higher than this basic amount. In fact, their negotiations stipulated that all rights were to remain with the artists.


In my opinion, this appeal will depend on how the Supreme Court decides to frame the central issue of the dispute. The minority opinion from the Federal Court of Appeal decision and the based their reasoning on foundations of labour law, relying on . This decision held that a labour board can find a party has not made a reasonable effort to enter into a collective agreement if a party refuses to even discuss a standard term that is acceptable in collective agreements in comparable industries.����While unlikely, the Supreme Court could bypass the copyright issue entirely if it agrees with this approach to resolving the dispute.


It is, however, more likely that the Court will determine the case on the basis of the copyright issue. In order to do so, the Supreme Court will have to determine whether the provisions in The Status of the Artist Act��and the definition of a “” conflict with provisions provided in The Copyright Act. According to the majority in the Federal Court of Appeal, a commissioned work involves a service, in that the patron commissions the actual work that the artist puts into their creation. On the other hand, once the work is completed there is not “service” so to speak. CARFAC/RAAV argues that the “service” was the artist granting others the right to use the work.


If the court accepts that the "service" is the granting of a right to use, CARFAC/RAAV's further argument runs into issues in that the group does not negotiate rights that belong solely to the artist. If the organization negotiates the right to use the work and the fees for said use, this would appear to be a negotiation relating to issues within the sole purview of the copyright holder (under s.3 of The Copyright Act). If the Gallery is correct in their assertion that these negotiations were outside the scope of CARFAC/RAAV’s authority then the court is likely to support their position that there cannot be a finding of bad faith from the breakdown in negotiations.


One can’t help but wonder if the parties would have fared better if they had continued negotiations. At this point, the parties have been involved with this situation for over a decade. CARFAC/RAAV has had to rely on to bring their claim to the Supreme Court. A ruling in their favour could be expensive for the National Gallery and such a precedent could affect galleries across the country. At this point, the best result that the can hope for is for the Court to provide clarity and put this dispute to rest. Still, no matter how the Court rules, the National Gallery will have to make an attempt to negotiate with artists - whether individually or through CARFAC/RAAV.


Allison McLean is an IPilogue editor and a JD Candidate at Osgoode Hall Law School.��

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