Mac Síthigh questions whether or not a technologically-neutral approach is really the best approach to media law and regulation. Building on the works of notable Canadian scholars and , Mac Síthigh finds that it is time to reflect and fall back on old notions of technology. The medium is still the message.

Furthermore, Mac Síthigh contends that knowledge of the nature of the technology is essential for regulation – an idea that harkens back to an . Understanding the essential characteristics of each medium “is absolutely necessary,” he said.

“We need to stop thinking about future-proofing as the answer,” Mac Síthigh argued. He further contended that there is a need for a more carful understanding of the role of the medium of communication in its regulation.

What happens when you take the nuance out of media law and regulation? You get terms such as , which, according to Mac Síthigh, is used in the United Kingdom. He says that the intention was to fend off arguments of regulating and as such “breaking” the Internet, but has the potential to create more problems than it solves.

This specific term raises a number of questions: What activities and projects are included and excluded by the term “T��-�������”? What exactly makes a TV programme, a TV programme, and not something else? Where exactly is the line drawn?

“Television itself is changing,” Mac Síthigh said. “The idea that one rule would fit all is very difficult to sustain in practice,” he said, furthering his argument that regulation should not be based on an attempt “to be technologically-neutral”.

Beyond careful consideration of language, it is also important to thoroughly consider legislative goals, which Mac Síthigh pointed out are not always easy to work out. However, if legislative goals are not clear and well thought out, the result could be different tax breaks for different methods of distribution with no clear reason for the difference, he said.

Mac Síthigh used many examples throughout his talk, which suggest that a technology-neutral approach to media law and regulation is not particularly desirable given the complexity of the constantly changing media landscape. While arguing for paying close attention to the media technologies themselves, Mac Síthigh suggested that there is the potential that policy goals can be fulfilled by tweaking IP law as well as through regulatory bodies, such as the Canadian Radio-television and Telecommunications Commission. For Mac Síthigh, which regulators have the potential to take on the burden of some of the future-looking issues that need to be addressed.

Amanda Oye is a PhD Candidate in the 91��ɫ & Ryerson Joint Graduate Program in Communication & Culture. Her research focuses on news media policy and practice, with an emphasis on the on-going development of public broadcasting in Canada, Great Britain, and Australia.

The post Spotlight on Prof. Daithí Mac Síthigh's New Book "Medium Law" appeared first on IPOsgoode.

This Special Issue seeks articles that focus on any doctrinal, policy, regulatory or theoretical aspect of Intellectual Property in the New Technological Age. Authors are invited to reflect upon the evolving relationship between IP law and new technologies in light of established and emerging stakeholder interests—and the public interest in general. Possible topics include, but are not limited to: the changing role of IP in our culture/society/marketplace; the pursuit of ‘technological neutrality’ in IP law; sites of tension between copyright norms and new digital services; patentability and gene or bio-technologies; trademarks, territoriality and the online marketplace; end-user and intermediary liabilities and remedies; emerging IP management and enforcement strategies; the expansion/contraction of user rights and defences in respect of new technological tools.

Submission

Manuscripts should be submitted online at by and . Once you are registered, . Manuscripts can be submitted until the deadline. Papers will be published continuously (as soon as accepted) and will be listed together on the special issue website. Research articles, review articles as well as communications are invited. For planned papers, a title and short abstract (about 100 words) can be sent to the Editorial Office for announcement on this website.

Submitted manuscripts should not have been published previously, nor be under consideration for publication elsewhere (except conference proceedings papers). All manuscripts are refereed through a peer-review process. A guide for authors and other relevant information for submission of manuscripts is available on the page. is an international peer-reviewed Open Access quarterly journal published by .

Please visit the page before submitting a manuscript. The for publication in this journal is 300 CHF (Swiss Francs). English correction and/or formatting fees of 250 CHF (Swiss Francs) will be charged in certain cases for those articles accepted for publication that require extensive additional formatting and/or English corrections.

Carys J. Craig is the Associate Dean, Research & Institutional Relations and an Associate Professor at Osgoode Hall Law School.�� She is the guest editor for this LAWS special issue.

The post Call for Papers - LAWS Special Issue on "IP in the New Technological Age: Rising to the Challenge of Change" appeared first on IPOsgoode.

These��questions were��posed��on February 25th when Osgoode Hall Law School in collaboration with the University of Toronto, Faculty of Law, held ���Ա貹������SODRAC, a symposium aimed at unpacking the myriad of issues covered in the 2015 Supreme Court case , [SODRAC].

���Ա貹������SODRAC was organized by Osgoode Associate Dean and University of Toronto Professor . The symposium��covered three main topics from the case: Technological Neutrality, Reproduction Rights, and Mandatory Tariffs.

The parties in this case include the appellant CBC, and respondent SODRAC. CBC, Canada’s national broadcaster, is responsible for the creation of many television programs and movies.��SODRAC is a french-language collective society in Quebec within the statutory definition found in of the Act.��The facts revolve��around��incidental copies made by��CBC during the video editing and broadcast preparation process. These are referred to as ‘broadcast-incidental’ copies.

Interveners on the case included Howard P. Knopf and David Lametti from the Centre for Intellectual Property Policy and Ariel Katz, David Fewer and Jeremy de Beer from the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Casey M. Chisick, Peter J. Henein and Eric Mayzel from the Canadian Musical Reproduction Rights Agency Ltd., the Canadian Music Publishers Association and the International Confederation of Music Publishers, and Barry B. Sookman and Daniel G. C. Glover from Music Canada, the International Federation of the Phonographic Industry, the Canadian Council of Music Industry Associations, the Canadian Independent Music Association and Association québécoise de l'industrie du disque, du spectacle et de la vidéo.

Licensing for musical works often uses a 'through to the viewer' model, where synchronization (copies created during editing of the work), broadcast-incidental (copies created during broadcasting of the work) and distribution-incidental (copies created during the distribution of the work) licenses are bundled together. This was not the case with the licensing scheme used by SODRAC.

CBC argues that broadcast incidental copies are the result of technological efficiency and it would contravene the Principle of Tech Neutrality to compensate SODRAC for ephemeral copies of their repertoire whose use has nothing to do with copyright holders' legitimate interests.�� SODRAC argues they are entitled by the Act (and by the decision in the 1990 case ����Bishop]) to remuneration for the ephemeral copies.

The first panel of the day discussed the emerging principle of technological neutrality in Copyright. The panel was chaired by Professor Giuseppina D’Agostino, and included Craig, Dean Gregory Hagen (University of Calgary), Professor Cameron Hutchinson (University of Alberta), and Richard Pfohl (General Counsel, Music Canada).

Craig surveyed the spectrum of case law that includes three different types of neutrality: Media neutrality at one end and a purposive approach to neutrality at the other.�� This spectrum reflects the fact that prior to SODRAC there was not a clear consensus on the spirit and the content of the principle of technological neutrality. Jurisprudence on this principle stems from two main cases: 1990's Bishop and��2012's����[ESA v SOCAN]. Justice McLachlin (as she was), writing for the court in Bishop,��held that s 3(1) of the Act did not include the right to make "ephemeral" recordings for the purpose of facilitating broadcasting. This meant that licensing was required for both synchronization copies of works and incidental copies.

At the conservative end of the spectrum, the interpretation of media neutrality was introduced in 2006 in����[Robertson]. In that��case, neutrality meant that the Act continued to apply in different types of media, and that actions undertaken when using a new technology should be reviewed rather than the technologies net effect. This position is echoed in Justice Rothstein's dissent in ESA.

In the middle of the spectrum is the functional equivalence approach found in .��In this case, Justice Abella explains that technological neutrality "seeks to have the Copyright Act applied in a way that operates consistently, regardless of the form of media involved, or its technological sophistication."

The purposive approach to neutrality was introduced by Justices Abella and Moldaver writing for��the majority in��ESA. This case represented a major evolution in the interpretation of the Act, and Technological Neutrality, demonstrated by the following quote:

"[5] ... The principle of technological neutrality is reflected in s 3(1) of the Act, which describes a right to produce or reproduce a work “in any material form whatever”. In our view, there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet. The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user. "

The underlying technological neutrality issue in SODRAC is the statutory interpretation of the Act, and the Court's refusal to displace the ordinary meaning of the text. The modern Canadian approach to statutory interpretation is Driedger's Modern Principle, as identified in ����Rizzo].

Specifically, the question is when principles of interpretation (such as the principle of technological neutrality) can displace the ordinary meaning of a statute. This is argued in SODRAC at ]. Exceptions exist in the Act for ephemeral/incidental copying under and .��However, CBC's incidental copying did not fall under them. Based on the legislative history, including failed lobbying by broadcasters to , the majority concluded that it was not possible to displace the ordinary meaning of the Act.��Panelist Greg��Hagan argued��that the majority's interpretation missed the point made in Rizzo at ], which��held that the ordinary meaning could��be displaced if it led��to an unreasonable and/or absurd outcome.

The principle of technological neutrality in statutory interpretation makes it clear that functionally equivalent technologies (in this case the delivery of television and movie programming using a digital content management system versus an analog one) should be treated equally by the Act.�� As broadcasters increasingly deliver their content digitally, SODRAC is problematic because it offers a potential disincentive for the use of these innovative technologies.�� As it stands, there is a good case to make for parliament to expand the incidental copying exceptions under and to avoid this absurd outcome and continue to encourage innovation in media delivery.

Paul Blizzard is a JD Candidate at Osgoode Hall Law School.��Twitter: .

The post Shifting technological neutrality into reverse: UNPACK SODRAC appeared first on IPOsgoode.

��editor ��originally reported on this case back in a September ��on the SCC’s decision to grant leave to appeal. The case arose out of the Board’s ��to collect royalties on these aforementioned ephemeral copies. The ��disagreed on tech neutrality grounds, arguing that under those principles royalties should not be charged for incidental copies since payments are already made for the use of the original content in final broadcasts. The Board, finding for , relied on the SCC’s decision in , which determined that because incidental copies add value to a final broadcast they should attract separate royalties. Furthermore, the SCC in Bishop narrowly interpreted the ��(the “Act”) to conclude that incidental copies made in the process of creating a broadcast were not part of the broadcast right itself.

At the FCA, CBC argued that Bishop was no longer good law. As ��by some commentators on the case,��CBC argued that the SCC in��fundamentally changed the law through its statements about tech neutrality. The Court however decided that neutrality did not override the language of the Act that gives owners of music works the exclusive right of reproduction. The FCA said in ��that nothing in ESA “would authorize the Board to create a category of reproduction or copies which, by their association with broadcasting, would cease to be protected by the Act. ESA did not explicitly, or by necessary implication, overrule Bishop v Stevens.” The Court further stated that since the majority’s reasoning in ESA did not rely on or refer to technological neutrality the case did not provide guidance on applying the principle to the situation at hand.

The importance of this appeal has been discussed by many members of the IP world. One commentator�� that the greatest danger in this case is that the SCC could potentially “roll back its finding that technological neutrality is a foundational principle within the law.” Additionally, if the SCC rules that all copies, incidental or not, are copies under the Act��there is “the very real possibility of payment demands for the myriad of copies that occur through modern technologies.” In this world of digital copies and Internet file sharing, accessing digital goods could potentially become an expensive task.

Although a webcast of the oral arguments was not available at the time of the writing this post, the parties’ ��are – and prove to be interesting reads. CBC ��that SODRAC is the first copyright holder to “attempt to monetize broadcast-incidental copies…[which is] a subversion of the purpose of the Copyright Act in an attempt to generate economic rents through a layer licensing scheme.” CBC contends that the layered licensing scheme at question was upheld by the Court through a fundamental error of law, “namely the rejection of technological neutrality as a guiding principle in the interpretation and application of the Copyright Act.” CBC asserts in its factum that this layered approach to licensing is “impermissible double-dipping that violates technological neutrality.” It is also interesting to note one of CBC’s requests that if the SCC decides that a licence is indeed required for incidental copies then the royalty should be reduced to a nominal amount “to reflect the fact that broadcast-incidental copies do not have independent economic value.” This request seems to reflect the reality that incidental copies tend to be a part of the production process in creating content, and are not necessarily “valuable” items on their own.

The SODRAC ��on the other hand contends that CBC is attempting “to reverse decades of settled law” and does not mince words in its opening paragraphs:

This appeal amounts to an attempt by CBC to persuade this Court, through a misuse of the principle of technological neutrality, to upset the existing statutory balance in relation to broadcast-incidental copies and to substitute its own policy preferences for those of Parliament, enabling CBC to escape liability for copies it is making and deriving benefits from, and that it has been making and paying for, for decades.

It is also fascinating (and sort of juicy!) to scan through the SODRAC factum and see a couple portions crossed out, specifically the paragraph describing how CBC has made tape and digital broadcast-incidental copies over the years for its programs.

An attendee of the hearing����on the opening stages of the appeal, saying that it did not start well for the CBC with the SCC being “clearly skeptical” of its arguments. In discussing technological neutrality however, one of the intervenors () suggested that a test should be established for when a copy should be treated as a copy under the Act. CIPPIC’s fear is that in this digital world that constantly uses ephemeral copying to function, literally interpreting the right to reproduction would give copyright owners control over everybody else’s access to digital content – which is not realistic.

It has been ��that this case��may “serve to reinforce the importance of the technological neutrality principle and confirm that in the digital world, not ever copy is a copy for the purposes of the Copyright Act.”��I agree with this position. Although SODRAC relies on the established law, the law must keep up with our ever-changing (and technologically advanced) world. It is simply impractical to suggest every copy is a copy under the Act when the way we access and store digital information heavily relies on ephemeral copying. To charge royalties on the digital content used in the production process before the final (valuable) broadcast is made seems to be an inappropriate cash-grab and abuse of copyright owners’ powers. However, the conclusion that the law may lend itself to could be completely different, and unfortunately we can never predict with certainty how the bench will sway. I guess we will just have to sit on the couch and find something else to watch until the final result is ready for the air.

Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post CBC v SODRAC Episode III: Oral Arguments Heard at the SCC appeared first on IPOsgoode.

The Board's rationale was that because they add value to the final broadcast, incidental acts of reproduction should attract royalties of their own in addition to those payable for the broadcast of the work. It relied on����in��support of its interpretation of the law. The facts in��Bishop��were very similar to those in the present case, and raised the same question of whether incidental reproductions made in the course of preparing an audiovisual work for broadcast were subject to tariffs. At issue in��Bishop was whether pre-recordings of television shows created "to ensure the quality of the broadcasts, and to enable broadcasters to offer the same programming at convenient times across five different time zones" fell within the scope of the����s 3.1(f) (broadcasting) or s 3.1(d) (recording). The Court used a narrow, "ordinary words" interpretation of the Act in concluding that the creation of incidental copies to be used in the broadcast process was not a component of the broadcast right itself.

The CBC on the other hand, relied on the technological neutrality principle stated in��,��and claimed that the Supreme Court’s decision in that case changed the law as it relates to incidental copies. The principle as articulated by the Court provides that the public should not be subject to additional taxes or tariffs for a copyrighted work depending merely on its method of delivery – more advanced technological methods of delivering a work to a customer should not attract additional levies. The particular version of technological neutrality espoused in��ESA��seems to be that of functional equivalence: if two technologies have the same effect, such as mailing a video game to a customer and downloading the same game via the internet, one method of delivery should not be favoured over the other by copyright law. CBC argued that because the incidental copies were produced "purely to meet the technological requirements of the systems used by producers and broadcasters", an increase in royalties would result in a restriction on technological innovation and efficiency.

The Federal Court of Appeal sided with SODRAC and the Board, reasoning that while the Supreme Court in��ESA��stated three versions of technological neutrality in its majority reasons, it used none of them in its final decision, relying instead on an analysis of the history and jurisprudence separating the performance right from the reproduction right. Because the application of this new principle of copyright law to a changing technological landscape was not the basis of the��ESA��decision, the Federal Court of Appeal rejected the CBC's technological neutrality argument. Instead, it preferred the reasoning of the Supreme Court in��Bishop, which did deal with technological change in similar circumstances to the case at hand, and emphasized the distinctness of the reproduction right from the broadcast right.

If SODRAC prevails at the Supreme Court of Canada, consumers will likely be relatively unaffected, at least as concerns the broadcasts at issue in this case. However, the status of ephemeral reproductions under copyright law is of great importance in the transfer of copyright-protected works over the internet. In dealing with the resale of digital works such as MP3s, copyright holders have used the reproduction right to restrict the ability of consumers to resell their "used" audio and video files, despite the fact that they were purchased legally. The lack of a digital right to resale stands in stark contrast to the thriving physical trade in used copies of music and movies. The legal avenue through which copyright holders have been successful in stymieing the development of digital secondary markets is the engagement of the exclusive right of reproduction, a technicality of transferring a file over the internet: in order to transfer a digital file, a reproduction of that file —��an ephemeral copy —��must be created on the recipient's computer and the original subsequently deleted from the sender's computer. A technological neutrality argument in favour of digital resale��—��that because resale of copyrighted works is permissible offline, that it ought not to be illegal online merely due to a technicality of online transfer��— would be significantly harder to make if the Supreme Court decides to hobble the seemingly broad statement of the principle in��ESA.

Another possibility is that the court will reconcile��Bishop��with��ESA in a way that recognizes the importance of technological efficiency and innovation, and allows new business models to thrive while protecting and rewarding the work of artists.

Adam Chan is an IPilogue Editor and��graduate of the University of British Columbia Faculty of Law.

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