snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Category Archives: Copyright

Subscribe to Copyright RSS Feed

Technological neutrality and copyright: Supreme Court grants leave to clarify scope in CBC v SODRAC

Posted in Copyright, Intellectual Property

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

When Does an Employer own Copyright in a Photograph Made by an Employee?

Posted in Copyright, Intellectual Property

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

YouTube, Facebook, Netflix liable to pay for music in Canada rules Copyright Board

Posted in Copyright, Intellectual Property

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

The Aereo Decision – Canadian Content?

Posted in Copyright, Intellectual Property

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

Notice and notice regime under C-11 coming into force

Posted in Copyright, Privacy

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

Hyperlinks Not a Copyright Infringement, According to the Court of Justice of the European Union

Posted in Copyright, Intellectual Property

Overview

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

McCarthy Tétrault files brief in U.S. Supreme Court

Posted in Copyright, Intellectual Property

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

Copyright Law – Year in Review

Posted in Copyright, Intellectual Property

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

Tech Law Summit 2013 Recap – Six Minute Lawyer Sessions: Thinking Beyond

Posted in Consumer Protection, Copyright, E-Commerce, Intellectual Property, Regulatory Compliance

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

Copyright Modernization Act (Mostly) In Force

Posted in Copyright

Keith Rose is an Articling Student at McCarthy Tétrault.

On November 7, 2012, with the publication of Order in Council P.C. 2012-1392 (the Order) in the Canada Gazette, the long-awaited Copyright Modernization Act, S.C. 2012, c. 20 has mostly been proclaimed into force.

This Act was the fourth attempt at a major revision of Canada’s Copyright Act, R.S.C. 1985, c. C-42 since 2005. Three previous Bills died on the Parliamentary order paper; however, in this case, the fourth time was the charm. Bill C-11 received Royal Assent on June 29, 2012.

Many observers had anticipated that the new law would … Continue Reading

Originality and Cartoon Characters – Supreme Court to Hear Cinar/Robinson Copyright Cases

Posted in Copyright

The Supreme Court recently granted leave to appeal in four copyright cases arising from the decision of the Quebec Court of Appeal in the France Animation v. Robinson, 2011 QCCA 1361 case. Robinson alleged that Cinar’s cartoon Robinson Sucroë was a copy of his own work Robinson Curiosité. The trial judge found infringement and the Court of Appeal upheld the judgment, in part, but reduced the damages award.

The cases canvass many copyright issues including:

  • the application of the standard of originality to partially completed work
  • the test for infringement when there has been substantial alterations and improvements
  • Continue Reading

Hot Off the Press – Doing Business in Canada 2012

Posted in Copyright, Intellectual Property, M&A/Finance, Patents, Privacy, Trade-marks

If your organization is currently thinking about establishing or acquiring a technology business in Canada, the 2012 edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information, up-to-date legislative provisions and insightful commentary on different areas of law. After downloading the guide, we encourage you to consult one of our lawyers for a more comprehensive analysis … Continue Reading

Tech Law Summit Recap – Key Developments in IP Law

Posted in Copyright, Intellectual Property, Patents, Trade-marks

The recent McCarthy Tétrault Technology Law Summit included a panel on “Key Developments in IP Law,” featuring James Skippen, Chairman and Chief Executive Officer, WiLAN Inc. and McCarthy Tétrault partners Beth MacDonald, David Gray and Barry Sookman. Paul Armitage, another McCarthy Tétrault partner, moderated the panel.

Patents

James Skippen commented on the growing awareness of the value of intellectual property, and patents, in particular. He observed that, instead of being a neglected asset class, patents are playing a more prominent role, and may even, in some circumstances, exceed the value of a company’s other assets. 

After describing WiLAN Inc.’s  history … Continue Reading

Ten Tech Law Resolutions for 2012

Posted in Consumer Protection, Copyright, E-Commerce, Intellectual Property, Privacy

January is a great time to make some resolutions for the coming year. In addition to the personal ones you have made, here are 10 involving tech issues that are (or should be) important to your organization.

1. Closing the Loop on Open-Source

Open-source software code and other types of materials and technical artefacts that are subject to open-source licensing models are proliferating in your business.  Some of this material is made available under open-source license agreements that are fairly benign.  In some cases, however, the license agreement can be quite problematic, including requiring you to make available to the … Continue Reading