Teresa Scassa - Blog

Wednesday, 04 September 2013 13:34

Copyright and the visual arts: new court decision

A recent decision of the Ontario Supreme Court offers a relatively rare glimpse into how copyright laws are applied to artistic works in Canada.

The plaintiff in this case, visual artist Malcolm Rains, painted a series of oil paintings over a period of 22 years. He calls this series the “Classical Series” and it currently comprises over 200 paintings. Each of these paintings is a still life of a sheet of crumpled paper against a particular background. The defendant is visual artist Lucian Bogdan Molea. In 2000, Molea began painting still lifes of crumpled paper. Rains brought suit against Molea, arguing that he had infringed his copyright in individual canvases, as well as in his series as a compilation.

Justice Chiappetta began her analysis by considering whether copyright subsisted in the individual canvasses painted by Rains and in the series. She found that the plaintiff’s canvasses met the standard of originality set out by the Supreme Court of Canada, notwithstanding the fact that the he “employed commonplace tropes used by painters for centuries”. The paintings emanated from Rains and were not copies of other works; they also reflected an exercise in skill and judgment that was more than trivial. She rejected the argument that the paintings amounted to an unprotectable merger of idea and expression. Justice Chiappetta noted that the idea was to paint a still life of a crumpled piece of paper; the expression of the idea was found in each individual painting. Recognizing copyright in the paintings did not give Rains a monopoly over the idea.

Although she found that each painting was protected by copyright, Justice Chiappetta reached a different conclusion with respect to the series. It was argued that the series was itself a distinct work, namely, a compilation. To be protected, a compilation must be an original expression that reflects an exercise of skill and judgment. In the case of the series of paintings, there was a concept, and a progression of canvases, but there was not the exercise of skill and judgment necessary to create a compilation. She explained: “There is no originality in the label itself, there is no skilful organizational aspect of the Classical Series that warrants protection for the series as a whole.” (at para 17) The paintings were not specifically selected and/or arranged as part of a collection; rather, the series was an open-ended and evolving category of works. Justice Chiappetta also rejected arguments that the series should be considered a compilation because it evokes a common feeling or “gestalt”. She stated: “it would be unwise to extend copyright protection to the visual perception of an artistic work, which is intangible and subjective.” (at para 22).

Having determined that copyright subsisted in the plaintiff’s individual paintings, Justice Chiappetta next considered whether Molea’s works infringed upon those copyrights. At the outset she dismissed any similarities between the works that were due to “common, long-established artistic techniques”. She also found that these similarities represented “a substantial part of the respective works.” (at para 30) She noted that painting crumpled paper “has been employed as a model since the French Academy was founded in 1664”. (at para 35) Painting it on a flat surface had similarly been around for at least 200 years. She also noted that the choice of certain colours for backgrounds also reflected long established practices. However, Justice Chiappetta was careful to clarify that she was not imposing a “novelty” standard for the protection of artworks under copyright law; rather, an artist: “cannot establish infringement by relying on his use of the noted unoriginal, commonplace, historical painting techniques. This would be akin to Shakespeare relying on his use of iambic pentameter in his writing or Drake relying on his use of 16 bars to a verse in his music.” (at para 40). In other words, the scope of protection available to copyright works must not be so broad as to give rightsholders a monopoly over techniques or practices. Ultimately she found that there were sufficient dissimilarities between the works to conclude that Rains’ canvasses were not the result of copyright infringement, but were original works in their own right.

In rejecting arguments that the defendant’s works might be mistaken for those of the plaintiff, Justice Chiappetta also made an important distinction between a confusion analysis and the analysis required for copyright infringement. A confusion analysis is more common in trademark law, where the question is whether the defendant’s trademark creates confusion in with that used by the plaintiff. Since a trademark is meant to serve as an indicator of source; misrepresenting one’s products or services as those of another is at the heart of trademark infringement. In the copyright context, however, it is not enough to argue that the work of one person is evocative of the work of another, absent proof of infringement. In the words of Justice Chiappetta: “it would be unwise to establish confusion as the test for colourable imitation of an artistic work. This test by its very nature lends itself to the subjective nuances of comparison [. . . ]”. (at para 44) “Confusion” in the context of art might be the result of the use of fairly similar techniques or methods. Further, copyright law allows for independent creation – the creation of even identical works can be tolerated so long as one was not the result of copying of the other.

Justice Chiappetta’s findings on the issue of access are also interesting. Because independent creation is always a theoretically possible explanation of substantially similar works, there must be some evidence that the defendant had access to the works that he or she allegedly copied. In this case, it was clear that Molea had previously seen a number of canvasses in Rains’ series. However, Justice Chiappetta found that this general access to a broad spectrum of work by Rains was not sufficient. Rather, it was necessary to show specific access to those particular works which were allegedly copied. She also refused to presume access on the basis that Molea had only commenced painting canvasses featuring crumpled paper after his move to Canada, when he would first have been exposed to the works of Rains. She found that Molea had provided a logical explanation for the evolution of his work over time.

This case is interesting in its application of copyright principles to the visual arts in a context where it is necessary to separate both concept and techniques and methods from the work itself. A finding of infringement in a case such as this would make it difficult for anyone to paint a crumpled piece of paper without fear of a finding of copyright infringement.

Published in Copyright Law

Back in March I wrote about a decision of the Federal Court of Appeal in a dispute over rights in nautical charts and maps. At issue was whether the matter should be resolved on summary judgment or whether it should proceed to trial. The Court decided that it should go to trial. In reaching its decision in the case, the Court made a comment in passing on the wording of a federal government licence agreement that was relevant to the dispute. This comment, which is reproduced in my earlier report on the case, puzzled over the government’s claim in its licence to copyright in its data, given that it was entirely clear in law that there could be no copyright in data.

Leave to appeal this decision to the Supreme Court of Canada has just been denied by that Court. This means that the decision of the Federal Court of Appeal stands, and that the matter should now proceed to trial. The case raises some very interesting copyright issues and will be worth following.

Last year Canada (finally) responded to the changes wrought by the internet and amended the Copyright Act to address, among other things, the creation, reproduction and dissemination of works in a digital environment. The Supreme Court of Canada has also recently re-emphasized the need to interpret the law in a technologically neutral manner. These developments, however, may still not be enough to prepare us for the new wave of digital reproduction technology that is coming with 3-D printing. As was the case with other digital reproduction technologies, 3-D printing technology is now moving from very expensive devices predominantly in the hands of corporate owners, to increasingly inexpensive technology on the verge of becoming popularized among ordinary consumers. This shift is similar to those which we have already seen with respect to personal and mobile computing.

Three-dimensional objects of widely varying complexity can now be printed using this technology using a variety of materials. A recent news story has even reported on the potential for this technology to print organs for transplant. The printers are evolving to use a wide range of materials that go well beyond the initial plastics and polymers.

Three-dimensional printing is likely to present some significant challenges for intellectual property regimes. This is certainly the thrust of a recent article on the subject in the World Intellectual Property Review (WIPR). Unlike 2-D printing, which is predominantly useful in reproducing works protected by copyright, 3-D printing affects copyright, patent, industrial design and trademark law. We are not far from a future where individuals widely use online file sharing networks to widely distribute plans that will allow for the reproduction of all manner of 3-D objects, including utilitarian objects, replacement parts, jewellery, toys, guns, uniquely configured, eye-catching products, miniatures and action figures based on copyright protected characters from books or movies.

Canada’s IP laws – like those of other countries – may not be fully ready to deal with the challenges posed by affordable and accessible 3-D printing. In the first place, the reproduction of 3-D objects may implicate one or more IP statutes. Three-dimensional objects that are artistic in nature are often protected by copyright law; the drawings or plans for the making of three-dimensional objects may also be protected as artistic works under copyright law. The visual appearance and design features of utilitarian objects can be protected through industrial design registration. Three-dimensional features of objects may, if they are distinctive of their trade source, be protected as trademarks. Functional 3-D items may also be protected under patent law. Clearly, there is IP protection available for 3-D items, but it is highly fragmented which will likely make it harder for individuals and companies to understand the parameters of legal activity. Further, while copyright law has been substantially revised to deal with the challenges posed by easy digital reproduction and the online dissemination of works, the other regimes have not received attention in this regard. Much has also been done to address the different ways in which copyright law may be infringed online – this includes a number of important new defences to copyright infringement that seek to create balance, along with an adjustment of statutory damages available where copying is non-commercial in nature. The other IP laws in Canada are not well adapted to copying by private individuals for non-commercial purposes. Three-dimensional printing may thus bring with it a paradigm shift which will no doubt create tensions between IP owners and users that may ultimately have to be addressed by the legislature. Yet we are still grappling with old-tech IP reform. For example, a new IP Bill C-56, currently before Parliament, addresses counterfeiting under both the trademark and copyright regimes, but the focus of these amendments is on the movement of goods across borders, and on enhancing the available measures to stop the importation of infringing works. Just as the law is moving towards addressing the flow of counterfeit goods across the border, counterfeiting may soon shift to digitally networked 3-D printers, the online dissemination of plans and designs, and small scale reproduction of works by multiple and widely dispersed individuals.

Published in Copyright Law

With little fanfare, the Canadian government has released its much awaited, newly revised Open Government Licence. The previous version that had been available on its Open Data site was a beta version on which public comments were invited. The government has also published its Open Government Licence Consultation Report, which summarizes and discusses the comments received during the consultation process.

The revised version of the licence is an improvement over its predecessor. Gone is the claim to database rights which do not exist in Canada. (These rights do exist in the UK, the Open Government Licence of which was a template for the Canadian licence). The new licence also discards the UK term “personal data” and replaces it with “personal information”, and it gives this term the meaning ascribed under the federal Privacy Act. The language used in the licence has been further simplified, making it even more accessible.

It should be noted that Alberta’s new open government licence – released as part of the launch of its open government portal earlier this year – is very similar to V2.0 of the federal government licence. There are some minor formatting differences, and a few changes in wording, most of which can be explained by the different jurisdiction (for example, the definition of “personal information” refers to Alberta’s Freedom of Information and Protection of Privacy Act). The similarities between the two licences are no coincidence. Although the Alberta licence was made public prior to the release of the federal government’s V2.0, work has been going on behind the scenes to move towards some form of federal/provincial consensus on the wording of open government licences with a view to ensuring that there is legal interoperability between data sets released by different governments in Canada. The efforts to reduce barriers to interoperability (whether legal or technical) are important to the ability of Canadians to work with and to integrate different data sets in new and innovative ways. Thus not only is the COGL V2.0 to be welcomed, so are the signs that cooperation and coordination may lead to a greater legal interoperability of open government licences across Canada.

Is it “legal” to post your fan fiction tribute to Star Trek online? Or to post a video of your children cavorting to a pop song? The recent amendments to Canada’s Copyright Act have, among other things, added an exception to the basic rules of infringement for user-generated content (UGC). According to this exception, user-generated content is some form of work (literary, artistic, dramatic or musical) that would be eligible for copyright protection in its own right, and that is built upon or integrates the copyright protected work of another. This would clearly seem to cover both of the examples given above. Recognizing that individuals now interact with digital works for all kinds of private and expressive purposes, the federal government has moved these activities from the realm of copyright infringement, and legitimized them – so long as the resultant UGC is non-commercial and has no substantial adverse effect (financial or otherwise) on the original.

The UGC exception is not the only new exception in the Act to normalize activities which, prior to the amendments, were considered infringing. For example, it used to be an infringement of copyright in Canada to record television shows to watch at a later time, and to make copies of legally acquired works so that they could be stored in electronic form, put on an MP3 player, or used for some other private purpose. These were activities in which Canadians routinely engaged, and sensibly, new exceptions now render them non-infringing. The UGC exception is also not the only new exception to carve out more room for expressive interactions with works. The fair dealing provision, which used to apply only to the fair use of works for the purposes of research, private study, criticism, comment or news reporting, now also permits the fair use of works for the purposes of education, parody or satire. The UGC exception thus fits within a framework of exceptions that normalize how people commonly interact with works and that encourage creative engagement with works – within certain limits.

During the debates on the amendments to the Copyright Act, the UGC exception was referred to as the “You Tube” exception, because it seemed that the paradigmatic act contemplated by this section was the home video posted on You Tube that incidentally incorporated a popular song. Yet the exception has potentially enormous breadth: there are so many ways in which existing copyright works can be incorporated into new works. The exception permits not just the making of these ‘mashups’, it permits the non-commercial dissemination of the new work. Translations and adaptations of existing works would appear to meet the definition of UGC. Compilations (mix tapes, anthologies, etc) would also seem to qualify. Those who create maps using the data sets of others and post them online may also find comfort in the UGC exception. Perhaps unwittingly, this exception appears to give great scope for the creation and distribution of works based upon the work of others. Of course, other than being non-commercial, the dissemination must not have no substantial adverse effect (financial or otherwise) on the work(s) incorporated into the UGC – it remains to be seen how much limiting effect these ‘weasel words’ will have.

[For a more detailed discussion of the UGC exception in Canada’s Copyright Act, I invite you to read my chapter on the subject in Michael Geist’s new collection of essays on copyright law, titled The Copyirght Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law. Published by the University of Ottawa Press, this book and all its chapters is also available free online under a Creative Commons licence.]

Published in Copyright Law

A recent Federal Court of Appeal decision may have significant implications for the licensing of government data by federal and provincial governments. Nautical Data International Inc v. C-Map USA Inc. is a decision that relates to a lawsuit brought by Nautical Data against the defendant C-Map after C-Map allegedly used data from Canadian Hydrographic Service charts and maps to create its digital charts. Nautical Data took the position that it had acquired the rights, through an exclusive licence, to the raw data that was used in the preparation of the charts, and that these rights were infringed by C-Maps activities. Of course, the two parties were competing in the production of digital navigation products.

Typically, government data licences, whether open or otherwise, assert that the government has rights in the data being licensed. Even the federal government’s recently proposed Open Data Licence covers information that is defined as “information protected by copyright or by database right...”. Leaving aside the imported and inappropriate reference to database rights that do not exist in Canada (see my earlier blog on this point), the government is clearly assuming that it has copyright in the data that is the subject of such licenses. Geobase’s Unrestricted Use Licence Agreement also boldly asserts that “Canada is the owner of or has rights in the data (the Data) addressed by the terms and conditions of this Agreement”. The claims, evident in these open licences, are repeated in more closed licences as well. The licence at issue in the Nautical Data case defined CHS data as “any data owned by Canada and maintained by CHS”.

This idea that data can be “owned” and that copyright law is the vehicle for this ownership is clearly evident in these and in many other licences in both the private and public sectors. This is the case, notwithstanding the fact that in copyright law, there can be no monopoly in facts or data. Copyright will only protect an original expression of facts or data. In a compilation of data, that expression will be manifest in an original selection or arrangement of the data. Even if there is an original selection or arrangement, the protection extends only to that selection or arrangement; it never extends to the underlying data.

While copyright academics have made this point before, it has largely fallen on deaf ears. That is why the comments by the Federal Court of Appeal on this point are so interesting. While the decision is not on the merits of the case (the litigation was about whether summary judgment should be rendered on the issues; the court ruled was that it should not – that the matter should proceed to trial) Justices Nadon and Sharlow state quite plainly that “there can be no copyright in information.”(at para 11). Moreover, they express a certain surprise at the wording of the licence. They state:

Section 6.1 is intended to be a formal acknowledgement of Crown copyright, but it refers to copyright in the CHS Data. Either the parties were unaware that copyright could not subsist in information (which we would not presume), or they understood the phrase “CHS Data” by necessary implication to mean or at least include the CHS Works, even though the definition of “CHS Data” in the licence seems to limit its meaning to “data”. (at para 13)

This is perhaps one of the politest ways possible to criticize the drafting of the licence. Justices Nadon and Sharlow go on to note that the allegation in the licence that the Crown “owns” the data is similarly troublesome. They state: “If it is intended to mean that data can be owned in the same way as property can be owned, then there is some question as to whether it is correct as a matter of law. . . . there is no principle of property law that would preclude anyone from making use of information displayed in a publicly available paper nautical chart, even if the information originated with the Crown or is maintained by the Crown.” (at para 14)

These statements are both interesting and important, and direct attention towards the rather thorny issues around the protection of data in Canada. Data producers, whether in the public or private sectors, have asserted claims to copyright in their data that are far stronger than the law apparently supports. They can do this largely because to challenge such a claim would require engaging in costly and time-consuming litigation which is beyond the reach of ordinary citizens and many businesses as well. It is perhaps the law’s version of Stephen Colbert’s ‘wikiality’ – let’s call it legiality: if you can get enough people to say that certain rights exist, then perhaps for all intents and purposes they do.

Although the copyright issues are not fully litigated in this installment of the Nautical Data saga, the statements by Justices Nadon and Sharlow are a jurisprudential shot across the bows (if you will forgive the nautical reference) of those who claim excessive rights to data in copyright licenses. Whether it is the Nautical Data case that will eventually provide the clarification of the law on these issues or other cases that may be working their way through the system, it really is time for our courts to reinforce the Federal Court of Appeal's clear message regarding over-claiming data licences: there simply is no copyright in facts.

Published in Copyright Law

The legendary Bluenose schooner has become a Nova Scotian – if not a national – icon. It has been featured on our dime since 1937. While the ship is invoked in stories and songs (the original Bluenose sank in 1946), it also lives on in a physical replica, the Bluenose II, which tours Nova Scotia and abroad, and which is a popular attraction. The ship took its name from the term “bluenose” which has been used as a nickname for Nova Scotians since at least the 1700s.

 

Being an icon is not an easy thing – even for a ship. In fact, the Bluenose has been the subject of a number of intellectual property skirmishes in recent years, and is set to be the focus of yet another round of litigation. The first round of intellectual property battles took place in the early 2000’s, when the company retained by the Nova Scotia government to maintain and manage the Bluenose II (which belongs to the province) received official marks protection for the name Bluenose II and a number of related marks. It then sought to enforce its newfound trademark rights against a number of local businesses that used the word Bluenose in their name. An account of this litigation and its outcome can be found in an article I published in the Dalhousie Law Journal in 2004.

 

Now, in 2013, the heirs to the naval architect who designed the original Bluenose schooner have filed an application in the Nova Scotia Supreme Court, arguing that the Province of Nova Scotia and those it hired to restore the Bluenose II have violated the copyright in the naval architectural plans for the ship. It is also argued that the moral rights of the naval architect, the late William James Roué have also been violated. Because Mr. Roué passed away in 1970, the copyright in the plans would only expire in 2020.

 

To understand this argument, it is first necessary to know that the naval architectural plans would constitute drawings, which in turn are protected as artistic works under the Copyright Act. Case law establishes that the copyright in drawings can be infringed when someone builds a three-dimensional object from what is represented in the drawing. Thus the building of a house may infringe the copyright in a set of architectural plans, and the building of a ship, presumably, can also infringe the copyright in its naval architectural drawings. Although the province claims that the work done on the Bluenose II (which was by all accounts in a sad state) was a restoration of an existing, authorized reproduction. The heirs of William J. Roué, by contrast, argue that the existing ship was reverse-engineered; new drawings were done, and an infringing copy of the ship was built. This is the heart of the copyright claim, and it raises interesting issues about the boundary lines between restoration and replication.

 

Moral rights are intended to protect the honour and integrity of the creator of a work and to ensure that he or she is recognized as the author of the work. The heirs appear to argue that the work done on the Bluenose II amounted to the distortion or mutilation of the copyright protected work to the prejudice of the honour or reputation of William J. Roué. In part, it seems that the heirs are arguing that they should have been involved or consulted in the process in order to protect moral rights, arguing that the prejudice to honour or reputation flows from the fact that “the Applicants are unable to ensure that construction of the Vessel will be completed properly and that the vessel called “Bluenose II” will remain an authentic tribute to the original Bluenose and Bluenose II and the creator of the legacy.” (Second Amended Notice of Application, Schedule A, para 37.) The outcome of this claim may depend upon whether the project is considered a restoration or a reconstruction. The Copyright Act provides that “steps taken in good faith to restore or preserve a work” are not, of themselves, a distortion, mutilation or modification of the work (s. 28.2(3)(b)).

 

There is, of course, money involved in this dispute. The government did not seek permission to use the copyright protected drawings to produce a new replica of the Bluenose, nor did it pay royalties to the copyright holders – their position is that they are simply restoring the ship that they own. The heirs, by contrast argue that they have “suffered a lost opportunity. . . to financially benefit from exploitation of the Copyright Work”. (Second Amended Notice of Application, Schedule A, para 44).

 

For its part, the Government of Nova Scotia has challenged the existence of copyright in the naval architectural plans, and whether such copyright actually passed to the applicant heirs. They are also arguing that the “restoration” of the Bluenose II “is not a substantial reproduction of the Bluenose; it is an independent design” (para 17 of the decision on the motion). Finally, the government seems to be arguing that any copyright in the naval architectural drawings does not include rights in the name “Bluenose”. Presumably this means that they assert the right to give this name to any ship they build.

 

It will be interesting to see how this litigation unfolds. The conflict here perhaps reflects what happens when someone’s intellectual property underlies what has become a public icon, and when the owner of a physical and functional object – like a ship – feels that they should not be constrained by intellectual property laws in their dealings with that object.

Published in Copyright Law

Roberta Bell of the Orillia Packet and Times has reported on an art exhibit that was pulled by a local art gallery after concerns were raised about possible copyright infringement. The situation highlights competing public policy concerns.

The artist in question, K.D. Neely, had digitally enhanced a series of photographs she had taken of graffiti from the Raval district in Barcelona. This is not the first time such an issue has arisen in Canada. Similar copyright concerns led to the closing of another exhibit of photographs of graffiti at a Toronto Gallery in 2008.

There is no question that graffiti may constitute an “artistic work” within the meaning of the Copyright Act. It is an interesting and open question whether copyright can be enforced in illegal works, but not all graffiti is illegal. Many such works are commissioned by building owners or municipalities, for example.

The owner of copyright in a graffiti artwork, like any other copyright owner, has a series of rights under the Act which include the right to reproduce or authorize the reproduction of their work. Taking a photograph of all or a substantial part of a graffiti artwork is a reproduction under copyright law. Further, an artist has certain moral rights in relation to their work. These would include the right to be associated with their work by name or pseudonym, or to remain anonymous. The moral right of integrity protects the artist against any distortion, modification, or mutilation of their work to the prejudice of their honour or reputation. In the case of a painting, the prejudice is deemed to have occurred as a result of any mutilation or modification. A photograph that presents only part of a graffiti work, or that adds elements to it might therefore violate the artist’s right of integrity.

Of course, a photographer whose photographs do more than simply reproduce the work of another would also have copyright in their own works. A photographer who makes choices as to what parts of a graffiti work to include in her photo, or how to include other aspects of the urban landscape, for example, is creating a new, copyright protected work. However, it is well established that an artist (or a writer, or musician) cannot incorporate the copyright protected works of others into their own works unless they have permission to do so, or unless they can rely upon a fair dealing defence. The fact that a new work is created is not, on its own, a defence to copyright infringement. Musicians who engage in sampling and appropriation artists have railed against these restrictions on how they create their own works, but copyright law has remained, by and large, unyielding in the face of these arguments. One of the public policy issues raised by this case, therefore, is whether the law gives appropriate latitude to creators to draw upon the works of others in the creation of their own works. When does a new work sufficiently transform the work on which it is based so as to be free from the need to seek permission to use the earlier work?

In Canada, the fair dealing defence to copyright infringement is available only where works are used for certain purposes. These are: research or private study, criticism or comment, news reporting, parody or satire, and education. In addition to being used for one of the specified purposes, any dealing with the work must be fair. The amount of the work used, and the impact of the dealing on the original are both factors that are taken into account in assessing fair dealing. Fair dealing is thus a very context-specific defence, and in many cases it will be frankly rather difficult to know whether a person’s dealing with a work was fair without engaging in costly litigation. There is no general exception to infringement based on arguments that a new work has been created.

Section 32.2 of the Copyright Act sets out a series of “permitted acts” in relation to copyright protected works. In paragraph 32.2(2)(b), the law provides that it is not copyright infringement to “reproduce, in a painting, drawing, engraving, photograph or cinematographic work” either an architectural work or a sculpture that is permanently situated in a public place or building. The provision clearly aims to establish a balance between the rights of copyright holders and the rights of individuals to occupy and relate to the public spaces around them. In other words, if your art work is in a public place, you have to accept that it will be treated as part of the landscape in photographs and other artworks. This is the case whether photos are taken by tourists, artists, or by photographers who sell their works for postcards or calendars.

What the drafters of s. 32.2(2)(b) omitted to address, however, was the issue of paintings that are situated in public spaces. Indeed, graffiti is very much a part of public landscapes. However, it would seem that unlike sculptures in parks or city squares, it cannot be photographed with impunity. This clearly seems to be a gap in the law. Why should graffiti artists be put in a better position than architects or sculptors when it comes to their rights in relation to their works? Why should anyone be inhibited in the taking of photographs of urban streetscapes that contain graffiti?

One answer to these questions might be that graffiti artists are in a different position than architects and sculptors, who are often paid handsomely for their contributions to public space. Although some works of graffiti are commissioned, many are not, and graffiti artists might well object to the capture of their works in photographs that are sold in galleries or reproduced for sale in other contexts without their permission and without compensation. The position is certainly understandable, yet it is also important to keep our public spaces as public as possible. Layering our streetscapes with private rights is almost certainly not in the broader public interest. Yet barring a change in the law or a surprising court interpretation of fair dealing in the context of photos of graffiti, this would seem to be our current situation.

 

Published in Copyright Law

Voltage Pictures LLC has brought a motion in Federal Court seeking a court order that would compel Internet Service Provider Teksavvy Solutions Inc. to disclose the identities of customers using certain IP addresses that have been linked to Internet file-sharing of works in which Voltage owns the copyright. If the court were to order the disclosure, the identified individuals could be sued for copyright infringement by Voltage.

The University of Ottawa’s Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) has brought a motion to intervene in the proceedings. CIPPIC has an established track record in representing the public interest in cases of this kind; they have argued for a balance between individuals’ privacy interests in their online activities and copyright holders interests in previous litigation. The Federal Court has adjourned its hearing of Voltage’s motion in order to consider the issue of CIPPIC’s intervention.

Published in Privacy
Monday, 07 January 2013 10:51

Copyright in Public Documents

Who owns copyright in documents created by private individuals for public purposes? This issue has been raised in at least two recent motions for certification of class action law suits for copyright infringement in the Ontario Superior Court.

The first of these, Waldman v. Thomson Reuters Corporation, resulted in the certification of a class action in February 2012. The plaintiff represents lawyers in private practice who object to the incorporation of court documents authored by lawyers into the defendant’s commercial databases without consent or compensation. The documents at issue include pleadings, notices of motions, affidavits and factums. All of these documents must be filed in court, and become part of a public record during the course of litigation. These court documents are already available to the public through different channels – for example, the public can obtain copies of documents in court records by visiting a court office and by paying the prescribed fees. Some documents are also now made available online by courts. The plaintiff in the class action suit in Waldman objected to the inclusion of these same documents in a commercial, for-profit service.

More recently, the Ontario Supreme Court has refused to certify a class action lawsuit brought by a land surveyor who objected to the inclusion of land survey documents in Ontario’s online land registry system Teranet. Copies of documents in Teranet are available to the public for a fee. The plaintiff in Keatley Surveying Ltd. v. Teranet Inc. argued that the survey documents were works in which copyright subsisted and their inclusion in the database without licence or compensation was a violation of those copyrights.

Both cases raise interesting issues regarding privately authored documents that are drafted as part of public processes, and that must necessarily be accessible to the public as a matter of public policy. Indeed, David Vaver has argued, in an article about the specific issue of copyright in legal documents, that in addition to the usual fair dealing exceptions in the Copyright Act, there may also be arguments around custom and public policy that permit copying without need for permission. Of course, this does not address the issue of whether a private company can commercialize access to the public documents without licence or compensation, and it will be interesting to see the outcome of the Waldman case.

The Keatley motion to certify was rejected by the court because it did not meet any of the criteria for certification of a class action. Among other things, the court was not convinced that there was an identifiable class of similarly affected individuals for the plaintiff to represent. This was because many prominent surveyors and land survey companies were involved in the design and creation of Teranet, and it was not clear whether any other surveyors in Ontario shared the plaintiff’s views on the copyright issues. Further, the court noted that membership in the proposed class would depend on the outcome of the litigation – the proposed class defined itsmembers as those who were holders of copyright in land survey documents, and one of the issues to be determined was whether land surveyors actually had copyright in their documents. If they did not, there could be no member of the class.

Nevertheless, there were some interesting issues raised in the lawsuit, and it is unfortunate that their consideration must be left to another day. For example, Teranet argued that if there is copyright in the land surveys, it lies with the provincial Crown. Crown copyright arises under s. 12 of the Copyright Act where a work is “prepared or published by or under the direction or control of Her Majesty or any government department”. Teranet argued that the provincial laws and regulations governing the creation and use of plans of survey amounted to direction or control over the creation of the works by the Crown. In the words of the court, “Legislation dictates the manner in which the survey is conducted, the content of the plan of survey, the form of the plan, and even details of the plan’s physical appearance, such as the type of paper used, the shape of the paper and the type of ink used.” (at para 102). If this type of direction or control can be said to give rise to Crown copyright, it might have interesting implications for a very broad range of other documents and data prepared under strict rules, standards or guidance – including, perhaps, some legal documents prepared for and submitted to courts.

Teranet also argued that Ontario’s Land Titles Act and the Registry Act both provide that deposited and registered plans are the “property of the Crown” and that this supports a finding of Crown copyright in the documents.. Of course, this same wording could easily be interpreted to refer to property rights in the physical document and not the underlying intangible intellectual property rights. Since copyright is a matter of federal jurisdiction and since s. 12 of the Copyright Act specifically addresses the circumstances in which Crown copyright arises, an interpretation of provincial legislation that creates a new basis for Crown copyright (the deposit and registration of documents) might take the legislation beyond the scope of provincial competence. Nevertheless, the court was of the view that “a compelling case can be made that copyright belongs to the Crown, based on s. 12 of the Copyright Act and the statutory regime that governs plans of survey”( at para 113), although it stopped short of actually drawing this conclusion. This is a complex and interesting question, and one with implications in many other contexts.

While Waldman will not answer these specific questions, it may provide some important insights on issues of fair dealing, custom and public policy (certainly, in the case of land surveys there has been a longstanding practice of providing copies to members of the public for a fee – even prior to the development of Teranet). These arguments, which provide a justification for the exercise by others of the exclusive rights of authors, seem far preferable to arguments that the state has expropriated these same rights through the creation of a registry system.

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