If you’ve ever shopped for a used car, you likely know the two popular services, autotrader.ca and CarGurus. In a decision released earlier this week in Trader v CarGurus, 2017 ONSC 1841, Trader (the owner and operator of autotrader.ca) was awarded statutory damages of $305,604 against CarCurus for infringements of its copyrights in photographs of vehicles. The decision written by Justice Conway of the Ontario Superior Court contains some important interpretations of the Copyright Act including in relation to the scope of the new making available right, the copyright defenses for information location tools and fair dealing, and the calculation … Continue Reading
Is operating a website that provides links to torrent websites which facilitates unauthorized downloading of musical works a criminal offence? If so, can the operator of such sites expect jail time as punishment for this crime? In a recent decision of the English and Wales Court of Appeal in Evans, R. v  EWCA Crim 139 (14 February 201), the accused, Mr Evans, was convicted of two offences of distributing infringing copies of musical works and was sentenced to 12 months in prison for these crimes.… Continue Reading
Five years ago, Canada enacted legal protection for technological protection measures (TPMs) as part of the Copyright Modernization Act. The Federal Court has now rendered the first decision interpreting these important rights. In short, the court made it clear that legal protection for TPMs were meant to foster innovation in the creative industries and that businesses blatantly engaging in industrial scale TPM circumvention activities will be dealt with harshly by the courts.
On February 8, 2017, the Quebec Court of Appeal certified a class action by Copibec against Université Laval, for copyright infringement.
This decision overturns a Superior Court ruling from 2016, which would have dismissed the claim on the basis that Copibec did not satisfy the eligibility requirements under the province’s Code of Civil Procedure for an association to bring a class action on behalf of its members.
Copibec is a collective management organization representing book publishers, visual artists, and newspaper and periodical authors and publishers in Quebec.
One of the central features of the U.S. Digital Millennium Copyright Act (or DMCA)for online service providers is the combination of the Notice and Takedown regime and the corresponding Safe Harbour provision. Provided that online service providers properly carry out their obligations under these provisions, including by promptly removing infringing content when they receive compliant notices, they are shielded from liability for copyright violations by their users.
This system has critics among service providers, right holders, and users. But it has underpinned the explosion of user content-based services ranging from Facebook and YouTube to small community bulletin boards.
A critical … Continue Reading
Photographer Edmond Chung’s fashion photos of Brandy Melville Canada Ltd. (“Brandy Melville”) employee Catherine Moisan were destined to be viewed on Instagram and Facebook. However, Brandy Melville’s unauthorized use of one of his photographs led Edmond Chung on a years-long effort to seek redress from the retailer for breach of his copyright. Edmond Chung finally succeeded in his efforts this April 2016 when the Court of Quebec’s Small Claims Division condemned Brandy Melville to pay Edmond Chung $5,000.00 for copyright infringement.  This decision is good news for creators seeking to share their work with a larger audience as it … Continue Reading
On June 1, 2016, the Federal Court granted an interlocutory injunction against retailers of television set-top boxes with pre-loaded applications that permit the unauthorized streaming and downloading of copyrighted content. Recognizing the “emerging phenomenon” of “pre-loaded set-top boxes” in Canada, this injunction comes at a time of rapid growth in the popularity of such devices. Finding for the plaintiff broadcasting companies, the Court’s Order in Bell Canada et al. v 1326030 Ontario Inc. et al., 2016 FC 612 also permitted the plaintiffs to identify and add other retailers of pre-loaded set-top boxes as additional defendants to bring them under … Continue Reading
On May 10, 2016, the Federal Court of Canada rendered its decision in Maltz v. Witterick, denying the Applicants, Judy Maltz, Barbara Bird and Richie Sherman, producers of a documentary called No. 4 Street of our Lady (the “Documentary”), an award in damages for breach of copyright and infringement of moral rights allegedly caused by Jennifer L. Witterick, author of the book My Mother’s Secret (the “Book”).
In re-examining the question of whether a particular set of facts can be subject to copyright protection, this case sheds light on the “substantial taking” test as … Continue Reading
In Sadhu Singh Hamdard Trust v. Navsun Holdings Ltd. (2016 FCA 69), the Court of Appeal set aside the Federal Court’s (2014 FC 1139) decision dismissing Hamdard Trust’s claim of copyright infringement and passing off against Navsun Holdings and remitted the matter to the Federal Court for redetermination, with some guidance.
This case involves a dispute over an unregistered trademark used by a Punjabi subscription daily newspaper, Ajit Daily, published in India, and by a free weekly newspaper, Ajit Weekly, published in Canada. Hamdard Trust, which operates Ajit Daily, sued Navsun Holdings, which operates Ajit Weekly, … Continue Reading
In June 2015, the previous Conservative government tabled legislation to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. However the bill was introduced shortly before the summer break and, as it turned out, Parliament was dissolved before the legislature returned.
On March 24, 2016, the new Liberal government tabled a substantially identical bill, now known as C-11.
As was the case for its predecessor, the bill broadens the existing exception in section 32, including by removing the exclusion of large print books and by expressly … Continue Reading
The Supreme Court released a landmark judgment yesterday in the closely watched case, Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57. The 7-2 judgment of the Court was delivered by Rothstein J (with whom McLachlin C.J., Cromwell, Moldaver, Wagner, Gascon and Côté JJ agreed).
The judgment established the following principles.… Continue Reading
Copyright law offers up a panoply of interesting questions, which often verge on the philosophical. One such question is: if one tries to make a copy of something, but the copy is defective and useless, has one made a copy at all? According to a recent decision of Master Hanebury, of the Court of Queen’s Bench of Alberta, the answer could be yes.… Continue Reading
On June 8, 2015, the Minister of Industry introduced Bill C-65, with the short title Support for Canadians with Print Disabilities Act. This Bill amends provisions of the Copyright Act dealing with exceptions intended to facilitate access to alternate format works by the visually impaired and other persons with so-called “print disabilities”. These changes are intended to implement (and enable Canada to accede to) the Marrakesh Treaty, as announced in the federal budget. (See pp. 21, 281, 286.)
The proposed amendments broaden the exception in section 32, including by removing the exclusion of large print books … Continue Reading
Copyright infringement is normally a factual question – it doesn’t matter whether one intended to copy a substantial part of someone else’s original expression if, in fact, one did so – but there are circumstances where the alleged infringer’s state of mind does matter. Knowledge is relevant to secondary infringement under s. 27 of the Canadian Copyright Act, or to the assessment of statutory damages under s. 38.1, for example. Willful infringement may also be relevant to the applicable limitation period, to the assessment of costs or punitive damages, or to piercing the corporate veil.… Continue Reading
On December 31, 2014, the Canada Gazette published an order proclaiming into force sections 2, 5 and 6, subsection 7(6) and sections 43, 44 and 60 of the Combating Counterfeit Products Act, c. 32, S.C. 2014, as of January 1, 2015. The Act itself received Royal Assent on December 9, 2014.
The principal effect of this order is to bring into force new border enforcement measures intended to combat the importation or exportation of trade-mark or copyright-infringing goods. These measures involve three main features:
- Prohibitions on importation and exportation of infringing copies or goods under the Copyright
The Supreme Court granted leave to appeal on September 4, 2014 in another copyright case, Canadian Broadcasting Corporation / Société Radio-Canada v. SODRAC 2003 Inc. The appeal is from the decision of the Federal Court of Appeal which ruled that broadcasters must pay royalties for ephemeral recordings in accordance with the 1990 decision of the Supreme Court in Bishop v. Stevens.
In the Court of Appeal, CBC argued that Bishop v Stevens was no longer good law, having been overruled by a series of decisions of the Court which had, in various circumstances, made references to the … Continue Reading
An employee takes a photograph of a customer on the employer’s premises. The employee has a signed employment agreement which states that all materials developed during the term of the contract are property of the employer. The employer obtains a copy of the photograph and uses it in social media. Later, the employee is terminated for cause.
The former employee sues for copyright infringement and, in the case of Mejia v. LaSalle College International Vancouver Inc., 2014 BCSC 1559, wins. (The case also involved wrongful dismissal and defamation claims which were unsuccessful.)… Continue Reading
On Friday, the Copyright Board released a decision and certified two SOCAN tariffs, Tariffs 22.D.1 (Internet – Online Audiovisual Services) and 22.D.2 (Internet – User-Generated Content). The years covered by the tariffs are 2007-2013.
The tariffs were certified based on agreements reached between SOCAN and objectors. Between the objectors and other entities which filed submissions, the heavyweights affected by the tariffs participated including Apple, Yahoo!, YouTube, Netflix, Facebook, Cineplex, the members of the Canadian Association of Broadcasters (CAB), and the Canadian ISPS Rogers, Bell, and Shaw.
The decision of the Board is important. Its significance extends to both the … Continue Reading
Careful observers of the United States Supreme Court’s 6-3 decision yesterday in American Broadcasting Cos., Inc. et al v. Aereo, Inc. may have detected a small Canadian flavour in the majority’s reasoning. As will be revealed, this was no coincidence, and McCarthy Tétrault played a small role by filing an amicus brief on behalf of a coalition of international rights holders and copyright scholars that drew the Court’s attention to the need to interpret the US Copyright Act in a technologically neutral way, as similar copyright laws have been construed by the Supreme Court of Canada and the European Court … Continue Reading
The Government announced today that the notice and notice regime established under C-11 is coming into force. The delay in bringing these provisions into force was a consultations on possible regulations that the regime permitted. The Government announced that the provisions are coming into force without regulations.
The regime permits copyright owners to send notices to internet service providers and other internet intermediaries claiming infringement of copyright. The notices must be passed on by these service providers to their users. Because there are no regulations, the notices must be processed and passed on by the internet intermediaries without any fees … Continue Reading
In Svensson v Retriever Sverige AB, the Court of Justice of the European Union (the “CJEU”) recently ruled that hyperlinks to freely available Internet content do not amount to a copyright infringement.
The Svensson case involves a dispute between journalists and a media search service company. Svensson, Sjögren, Sahlman and Gadd (the “Journalists”) wrote and held copyrights to press articles which were published in the Göteborgs-Posten newspaper and on its website. Retriever Sverige AB (“Retriever”) operated a website that provides its clients with hyperlinks to articles published by other websites.
The Journalists … Continue Reading
On March 3, McCarthy Tétrault partner Steven Mason filed an Amicus brief in the United States Supreme Court in the high profile Aereo case in support of the broadcasters and studio appellants who are challenging Aereo’s business model of re-transmitting TV broadcasts over the Internet without paying retransmission royalties. The brief argues that the international, bi-lateral and multilateral treaties the United States agreed to requires US courts to provide a broad technologically neutral right of communication to the public that would fully cover Aereo’s service.
The brief is signed by a “who’s who” of international rights holders, including the International … Continue Reading
While 2013 was not a seminal year for Canadian copyright cases when compared to 2012, there were certainly some memorable decisions which provide a worthwhile read by any standards. The following is a sampling of some of the most interesting cases of the year. A fuller description of the below decisions can be found in Barry Sookman’s paper which was recently presented at the Law Society of Upper Canada’s 18th Annual Intellectual Property Law: The Year in Review program. A link to the paper can be found on Sookman’s blog.
The most important copyright case of the year … Continue Reading
At McCarthy Tétrault’s Toronto Technology Law Summit, Bram Abramson, Daniel Glover, James Archer, Bob Nakano, Pat McCay, Naseem Malik, and David Tait, were featured in the Six Minute Lawyer panel. Each lawyer provided brief updates on a variety of topical and timely tech law issues, ranging from the regulation of commercial communications to tax issues.
Unsolicited Telecommunications Rules
Bram Abramson provided an overview of the CRTC Unsolicited Telecommunications Rules (“UTRs”), which are overseen by the Commission’s Compliance and Enforcement Section. These rules cover unsolicited phone calls or faxes for the purpose of solicitation. … Continue Reading