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The Two Weeks That Changed Canadian Copyright
michael geistcanada research chair in internet and e-commerce law
university of ottawa
Years
14 Days
Canada = most copyright user rights friendly country in the world
June 29th – July 12th, 2012
June 29th
Bill C-11 Receives Royal Assent
July 12thSCC Releases Copyright Pentalogy
July 4th
European Parliament Rejects ACTA
What happened?
How did it happen?
June 29th, 2012
Issue 2005 (C-60)
Fair Dealing No
Consumer Exceptions (time shifting, format shifting, backup copies)
No
Internet Exceptions (Internet content, user generated content exception)
No
Statutory Damages Reform No
Digital Locks Yes
Internet Service Provider Safe Harbour
Yes
books
Issue 2005 (C-60)
2008 (C-61)
Fair Dealing No No
Consumer Exceptions (time shifting, format shifting, backup copies)
No No
Internet Exceptions (Internet content, user generated content exception)
No No
Statutory Damages Reform No Minor
Digital Locks Yes Yes
Internet Service Provider Safe Harbour
Yes Yes
Issue 2005 (C-60)
2008 (C-61)
2010 (C-32)
Fair Dealing No No Yes
Consumer Exceptions (time shifting, format shifting, backup copies)
No No Yes
Internet Exceptions (Internet content, user generated content exception)
No No Yes
Statutory Damages Reform
No Minor Yes
Digital Locks Yes Yes Yes
Internet Service Provider Safe Harbour
Yes Yes Yes
July 4, 2012
July 12, 2012
1990
Bishop v. Stevens
This distinction between the right to perform and the right to record a work is unsurprising in light of the object and purpose of the Act. As noted by Maugham J., in Performing Right Society, Ltd. v. Hammond's Bradford Brewery Co., [1934] 1 Ch. 121, at p. 127, "the Copyright Act, 1911, was passed with a single object, namely, the benefit of authors of all kinds, whether the works were literary, dramatic or musical".
2002
Theberge
“Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”
2004
CCH“the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”
2012
ESAC v. SOCAN“The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.”
SOCAN v. Bell“Limiting research to creative purposes would also run counter to the ordinary meaning of "research", which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework..”
Alberta v. Access Copyright
“…they study what they are told to study, and the teacher's purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.”
Doesn’t End There…
Canadian Copyright 2013
Canadian Copyright 2013
Fair dealing as a users right
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Internet exception for publicly available materials
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Internet exception for publicly available materials
Technological neutrality
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Internet exception for publicly available materials
Technological neutrality
Shifting – format shifting, time shifting, backup copies
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Internet exception for publicly available materials
Technological neutrality
Shifting – format shifting, time shifting, backup copies
Expansive approach to research & education
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Internet exception for publicly available materials
Technological neutrality
Shifting – format shifting, time shifting, backup copies
Expansive approach to research & education
Rejection of criminalization of copyright
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Internet exception for publicly available materials
Technological neutrality
Shifting – format shifting, time shifting, backup copies
Expansive approach to research & education
Rejection of criminalization of copyright
Copyright term
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Internet exception for publicly available materials
Technological neutrality
Shifting – format shifting, time shifting, backup copies
Expansive approach to research & education
Rejection of criminalization of copyright
Copyright term
Digital library loans
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Internet exception for publicly available materials
Technological neutrality
Shifting – format shifting, time shifting, backup copies
Expansive approach to research & education
Rejection of criminalization of copyright
Copyright term
Digital library loans
Privacy
Canadian Copyright 2013
Fair dealing as a users right
Expanded fair dealing purposes
Notice-and-notice
User Generated Content Exception
Cap on non-commercial statutory damages
Internet exception for publicly available materials
Technological neutrality
Shifting – format shifting, time shifting, backup copies
Expansive approach to research & education
Rejection of criminalization of copyright
Copyright term
Digital library loans
Privacy
Crown copyright licence
Why it happened?
Politics
Trade Pressure
Personalities
McLachlin & Abella
Clement & Moore
Bulte & Angus
Public
Social Media
Copyright Scholars
Concerned Canadians
90,000
8,000
2
@mgeist
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