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Monday, 07 April 2014 13:25
Ontario’s Divisional Court has decided to certify a class proceeding in Keatley Surveying Ltd. v. Teranet Inc., a case that raises issues about the copyright status of plans of survey that are prepared by surveyors and deposited in provincial land registries. (The decision of the court below refusing to certify the class action was discussed here.) The defendant, Teranet Inc. is the company that runs the province’s electronic land titles system. The class plaintiff argues that individual land surveyors hold copyright in their surveys, and it argues that the defendant Teranet violates those copyrights when it makes electronic copies of those surveys available to others for a fee. The defendant raises several arguments in its defence. These include an argument that copyright in the surveys belongs to the Crown because of the statutory requirement for such surveys. Alternatively, it is argued that copyright is assigned to the Crown through the act of registering the document. Another possibility is that the statutory scheme that governs the registration of a plan of survey creates a process whereby the surveyor consents to the copying of the submitted plan for public purposes. Finally, there is the argument that the electronic land registry system operated by Teranet confers a public benefit such that it would be against public policy to permit surveyors to enforce their copyrights. As noted in a recent posting, these questions regarding the copyright status of documents in public registries are both interesting and important, and arise in other contexts as well.
The Divisional Court was prepared to certify the class proceeding because certain deficiencies identified by the judge at first instance had been corrected in the plaintiff’s revised class certification request. For example, while initially the class had been defined in such a way that membership in the class depended on how the substantive issues would be decided, the revised definition of the class simply includes all land surveyors in Ontario who are authors of a plan of survey found in the electronic database, or who might hold copyright in such a plan as a result of their status as employer of a surveyor, or as an assignee of either the surveyor or his/her employer. The Court of Appeal also found that the other requirements for certification of a class were met.
The Court of Appeal’s decision paves the way for this law suit to proceed – though it remains far from certain that any of the underlying copyright issues will ever ultimately be decided by a court. Nevertheless, should this dispute make its way to court, it may well provide important guidance regarding copyright in documents of all kinds that are filed in public registries for statutory purposes.
Monday, 31 March 2014 08:59
The federal government’s recently introduced Budget Implementation Bill (Bill C-31) is accompanied once again by hundreds of pages of unrelated amendments to various federal laws. Almost lost among all of this legislative noise are 36 pages of amendments to the Trade-marks Act (which, once these amendments are passed and not a moment too soon, will be renamed the Trademarks Act). These amendments are all ones considered to be necessary in order for Canada to implement the Madrid Protocol and the Singapore Treaty – two of the international treaties tabled in Parliament earlier this year.
One could argue that since the amendments do not go further than the implementation of these treaties, then there is little harm in pushing them through in the rather bloated charade of democracy that budget implementation bills have become. Unfortunately, what Canadians are really being denied is an opportunity to hear debate on whether the implementation of these treaties is actually in the country’s best interests. Although there are arguments to support the implementation of treaties that harmonize certain procedures around the registration of trademarks and that permit Canadian companies to take advantage of a simplified international filing procedure where trademark registration is sought in multiple jurisdictions, there are also arguments for the status quo. The changes to Canada’s trademark system – particularly the abandonment of a requirement that a trademark be used before it is registered – could very well lead to a flood of trademark registrations in Canada by foreign companies that will clutter the register with unused trademarks and that will ultimately make it more difficult for Canadian companies to adopt, use and register the marks of their choice.
The amendments to the Trade-marks Act introduced in Bill C-31are likely to leapfrog over the amendments proposed in Bill C-8, which has been making its sluggish way through the more usual democratic channels (you know – where there is debate on the merits of the amendments, committee hearings, and sometimes even changes made to improve the bill). In fact, a good part of the trademark-related content in the Budget Implementation Bill consists of sorting out when different provisions will come into effect relative to C-8, particularly where they depend upon certain changes being implemented by C-8. This promises a confusing tangle of changes to the law; trademark lawyers will have to be consoled by the fact that they bill by the hour.
Monday, 24 March 2014 10:36
Does copyright subsist in documents that must be submitted as part of judicial or regulatory processes and that are, as a result, publicly available? Some time ago I wrote about two cases making their way through the legal system that raised this issue. A proposed class action settlement agreement in one of these cases, Waldman v. Thomson Reuters Canada, Ltd., has just been smacked down by Justice Perell of the Ontario Superior Court.
The representative plaintiff of this class action lawsuit is lawyer Lorne Waldman, who is well known for his representation of Maher Arar, among others. The defendant is Thomson Reuters Canada Ltd., which operates a major legal database on a fee-for-access basis. As part of this database it provides a “Litigator” service which includes copies of documents filed by lawyers in important cases in Canada. The kinds of documents reproduced in Litigator include affidavits, factums, and pleadings. Such documents are of use to other lawyers – and to the growing number of self-represented litigants – as precedents, or as research resources. They are also of interest to law students and legal academics.
The copyright issues around such documents are interesting. Most would be considered original works of authorship, and would normally be protected by copyright. Because these documents must be filed in court proceedings, they are generally publicly accessible under the open courts principle. However, for the most part these documents are still not available in open, electronic databases hosted by courts. Where they are not electronically available, individuals may consult the court files in person, and/or may request copies of documents for a fee. No licence is sought by the court registrars from lawyers in these circumstances for the right to copy their documents. Indeed, under the open courts principle, a lawyer could not refuse permission to access or copy these documents. Although not directly on point, in a recent court decision in the U.S., which involved claims of copyright in court documents, the court found that as between courts, clients and their lawyers, copyright issues had to take a back seat to the interests of justice.
Even if there were no general licence to copy court documents, in the case of those who are not parties to the litigation and who seek to use such materials, whether they are found in court records or in Litigator, copyright’s fair dealing exception for research or private study would most likely cover their activities. Recent Supreme Court of Canada decisions make it clear that courts should take a liberal approach to interpreting fair dealing, including fair dealing for the purposes of research or private study. In 2004, the Supreme Court of Canada specifically found that research for commercial purposes – including legal research carried out for clients – fell within the scope of this defence. It is less clear that the activities of Thomson would qualify as fair dealing, but to the extent to which they facilitate access to documents already available to the public, there may be some traction to the argument.
It is likely that rather than find that documents filed in court are not protected by copyright at all, a court would find that there is an implied licence permitting copying in respect of all documents filed in court proceedings. What is less clear is the scope of any such licence. Would it include the broad-based copying of materials so as to make them available for a fee? Would it make a difference if the cost of acquiring copies through this paid service was less than the cost of acquiring those copies through the courts?
In the settlement agreement that was brought to the court for its approval, Thomson agreed not to claim copyright in the materials in Litigator, and to provide notice to its subscribers that some material in its database might be covered by third party copyright. It also agreed that for a period of ten years (and apparently no longer) it would give notice to any lawyer whose materials it planned to include in Litigator. If the lawyer objected to the inclusion of the materials, those documents would be excluded from the service. It also agreed to create a trust fund to support public interest litigation. In exchange for the above, the class members would provide Thomson with a non-exclusive worldwide, perpetual and irrevocable licence to use the works. Class members would have the ability to opt out of the settlement. The settlement agreement also included a fee of $850,000 to be paid to the lawyers for the class.
There was support for the settlement from a number of organizations such as the Canadian Bar Association, the Canadian Civil Liberties Association, and the B.C. Civil Liberties Association. These organizations were chiefly onside because of the trust fund that would benefit public interest litigation. Six class members also wrote letters in support of the settlement. However, support was not universal. Seven class members wrote letters opposing the settlement. It may not be surprising that the lightning rod for opposition to the settlement was the huge disparity between the amount of the fund created to support public interest litigation and the fees sought by class counsel. One opponent wrote: “this smacks of lawyers taking an opportunity to make money in a scenario where there was likely little value to the individual class members.” (at para 69). Another stated: “This reeks of a distortion of the noble goal of legitimate class action proceedings”. (at para 70). A third lawyer objected on the basis that he felt that court documents were public as of the moment of filing, and should be readily available electronically. Another noted that class members received nothing of benefit in exchange for the licence they would be required to give to Thomson.
Justice Perell was unequivocal in his rejection of this settlement agreement. He found that the Agreement was not “fair, reasonable, and in the best interests of the Class Members” (at para 90). He found that the settlement allowed the plaintiffs to “emerge unscathed” from what was now “prohibitively high-risk litigation” (presumably because of the weakness of the copyright claims). For Thomson, the Agreement would allow it to acquire, at relatively low cost, 13,000 non-exclusive copyright licences and releases from copyright owners. They also would evade any litigation risk, and would be spared further costs of litigation.
Justice Perell found that the class members would derive no benefit from the agreement. In fact, he concluded that the agreement “brings the administration of justice and class actions into disrepute because: (a) the Settlement is more beneficial to Class Counsel than it is to the Class Members; and (b) in its practical effect, the Settlement expropriates the Class Members’ property rights in exchange for a charitable donation from Thomson.” (at para 95). Interestingly, Justice Perell characterized the principle at issue in this case as being “that Thomson should not take what most lawyers would be prepared to give away for free if only politely asked.” (at para 98). Here, Justice Perell found that providing Thomson with a licence did not respond to that basic principle. He found that “there is no access to substantive justice for the claims of Class Members and no meaningful behaviour modification for Thomson.” (at para 101)
Justice Perell was also scathing about the imbalance between the amount of the charitable trust fund and the amount of the lawyers’ fees. He was not mollified by the offer of class counsel to donate $150,000 of their fee payment to the trust fund. He wrote “a fairer and more reasonable resolution of this class action would have been to seek court approval of a discontinuance of the action on terms that provided for a cy-près payment and a fair and reasonable Class Counsel Fee and no granting of licences.” (at para 107)
It would seem that this suggestion of a possible settlement embraces the view that no licence is needed to copy the documents at issue. Yet, it is not clear what any settlement that did not involve a concession of licences would mean for Thomson and its desire to continue offering these materials through Litigator. Without resolution of the underlying copyright issues, the uncertainty regarding the re-use of such materials will remain.
Tuesday, 11 March 2014 07:59
A recent decision from the Federal Court of Canada squarely addresses the issue of copyright trolls and the impact they may have on ordinary Internet users. It also highlights the importance of public interest advocacy in a context that is rife with economic and power imbalances.
The Internet is widely used as a source of content – whether it is in the form of film, music, text or visual works. While there is a great deal of content available both free and for a fee from authorized distributors, other content is shared without the consent of copyright holders. Where unauthorized distribution takes place, copyright may be infringed – but of course whether there has been actual infringement by the downstream user may depend upon a range of considerations.
Copyright owners – particularly those in the film and music industries – have for some time now been decrying the widespread unauthorized sharing of content over the Internet. They have also adopted a variety of strategies to impede these activities. These have included suing file-sharing services such as Napster, Grokster or Pirate Bay, with a view to having them shut down, public education campaigns, and threats of legal action or actual law suits against individual downloaders of protected content. It is with respect to this latter category of action that the label “copyright troll” has been used.
In Voltage Pictures LLC v. John Doe and Jane Doe, Prothonotary Aalto of the Federal Court considered an application for an order to compel Internet service provider TekSavvy to disclose the identities of individuals linked to some 2000 IP addresses that in turn had been associated with illegal downloading of Voltage’s copyright protected films. An earlier Federal Court of Appeal decision in a case involving music downloads had outlined the circumstances in which such an order might be granted, taking into consideration the necessary balance between the applicant’s rights and the privacy rights of the individuals linked to IP addresses. Voltage argued that it had met all of the requirements of this test.
The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, more commonly known as CIPPIC, intervened in this case in the public interest. CIPPIC’s intervention was particularly important given that there was really no other available party to speak out for the interests of the still anonymous Internet users whose identities might be disclosed were an order to be issued. It is clear as well from reading Prothonotary Aalto’s reasons, that CIPPIC’s submissions had a significant impact on the outcome.
The decision begins with a quote from a U.S. case which speaks of the rise of “copyright trolls”, and it is clear that the spectre of such trolls looms over the Federal Court’s decision. The concept of “trolls” has become common in both patent and copyright litigation. In the copyright context, a troll is a plaintiff who files “multitudes of lawsuits solely to extort quick settlements”. Trolling is a business model in its own right – suits are launched not so much in order to deter or to compensate for the harm caused by infringement; rather, trolling generates revenue by compelling individuals to settle for sums that are lower than the cost of obtaining legal advice and pursing a defence to the threatened action. As Prothonotary Aalto noted in his extensive reasons, copyright trolls have been active in other jurisdictions, and courts in both the U.K. and the U.S. have striven to find an appropriate result that protects individuals while recognizing the rights of copyright owners to bring legal action.
Prothonotary Aalto’s decision is, in fact, an exploration of the issues raised and an attempt to find an appropriate balance between the rights of individuals to pursue their online activities without having their identities disclosed to third parties, and the rights of copyright owners to sue for infringing uses of their works. He begins his reasons by considering the test for a Norwich Order laid out by the Federal Court of Appeal in BMG v. John Doe, another case which required the court to balance privacy interests against the rights of copyright holders. Although in Voltage, CIPPIC argued that the threshold for the application of this test was too low, and that parties seeking disclosures of the names of individual Internet users should have to make out a prima facie case of infringement, rather than just a bona fide (good faith) claim, Prothonotary Aalto found that the test set out by the Federal Court of Appeal was both appropriate and applicable. He also found that Voltage had met the prescribed test, ruling that “the enforcement of Voltage’s rights as a copyright holder outweighs the privacy interests of the affected internet users.” (at para 57) He noted, however, that the test left room to consider and to moderate the impact of the order on privacy rights.
There was no evidence in this case that Voltage was a copyright troll. Indeed, Prothonotary Aalto found that Voltage had met its burden of showing that it had a genuine copyright infringement case and that a court order to compel TekSavvy to release the contact information of some of its customers was the only reasonable means of establishing the identities of the alleged infringers. However, he acknowledged evidence and argument by CIPPIC to the effect that there might be technological flaws in the methods used to link IP addresses to downloading activities, such that some IP addresses may have been identified in error. He also accepted that some of the downloading activity might be justifiable under one defense or another. More importantly, perhaps, he was sensitive to the evidence supplied by CIPPIC of copyright troll activities in other jurisdictions and of the concerns of courts in those jurisdictions regarding such practices.
Ultimately, Prothonotary Aalto’s decision seeks to balance the intellectual property rights of the copyright owner with the privacy rights of individuals who might be identified as a result of a court granting a Norwich Order. In his view, it is only in a case where there is “compelling evidence of improper motive on behalf of a plaintiff in seeking to obtain information about alleged infringers” that a court would be justified in refusing to grant such an order. (at para 133) Nevertheless, the court has the authority to place terms and conditions on the grant of the order, and these terms and conditions can protect the privacy of individuals by ensuring that their personal information is not shared or misused by a company that seeks this information for improper purposes, such as copyright trolling.
In issuing the Norwich Order in this case – which compels TekSavvy to furnish the information sought, Prothonotary Aalto placed significant limits on the order. In the first place, Voltage is ordered to compensate TekSavvy for its legal and administrative costs in compiling the requested information. A copy of the court’s order must accompany any correspondence sent to TekSavvy customers by Voltage as a result of the sharing of the customer information. Any such correspondence must also “clearly state in bold type that no Court has yet made a determination that such Subscriber has infringed or is liable in any way for payment of damages.” (clause 8 of the order) This is to avoid the type of demand letter seen in copyright troll cases in other jurisdictions where letters sent to individuals convey the impression that conclusions have already been reached on issues of infringement. As an additional safeguard, Prothonotary Aalto ordered that a draft of any such letter must be reviewed by the Case Management Judge appointed to oversee the process before it is sent to any individuals. The order also provides that the personal information shared by TekSavvy as a result of the order must be kept confidential by Voltage and must not be shared with anyone else – including the general public or the media -- without the court’s permission.
The decision in this case is a welcome one. It reflects a serious effort to ensure fairness and balance between the parties. It provides the applicant with the means to obtain the information it needs to pursue copyright infringement claims; at the same time, it imposes restrictions designed to ensure that the personal information is not used improperly to generate revenue well in excess of any damages suffered by the rights holder by pushing individuals into settlements in order to avoid the costs and stresses of threatened litigation. The decision is a direct result of public interest advocacy and a reminder of the important role played by organizations such as CIPPIC.
It is worth noting that the 2012 amendments to the Copyright Act included changes to the statutory damages provisions in that statute. These provisions allow plaintiffs to opt for a fixed amount of damages in cases of infringement – in other words, to be compensated without having to establish any particular losses. The 2012 amendments drastically reduced the amount of statutory damages that can be awarded against individuals whose infringing activities are essentially non-commercial. This takes away the ability for plaintiffs to stack statutory damages in suits against individual downloaders in order to arrive at the ridiculously high (and ultimately punitive) damage awards that we have seen in the U.S. in lawsuits against students or other private individuals whose downloading was simply for their own consumption. The message from Parliament is clearly that this type of conduct, while still infringing, should not be be exploited by rights holders either to “send messages” or to provide a new business model based on serial demand letters to large numbers of vulnerable individuals. The decision by Prothonotary Aalto is in keeping with this message. While copyright owners are entitled to enforce their rights through the courts, the courts must ensure that “the judicial process is not being used to support a business model intended to coerce innocent individuals to make payments to avoid being sued.” (at para 35)
 This is from TCYK, LLC v. Does 1-88, 2013 U.S. Dist LEXIS 88402. The quoted words are part of the passage in the quote that starts off the Federal Court decision.
Tuesday, 25 February 2014 11:04
Tuesday, 18 February 2014 14:52
With the winter Olympics now getting massive media attention, it is perhaps worth pausing to think about that other, non-official Olympic activity – ambush marketing. Indeed a recent threat of litigation by the Canadian Olympic Committee against North Face for ambush marketing is an indicator that the Olympic marketing games are also in full swing.
Like many other major sporting events, the Olympics have become heavily dependent on funding raised through sponsorship programs. The International Olympic Committee (IOC), in fact, has a carefully structured sponsorship program called TOP, which manages Olympic marketing opportunities. Sponsors pay substantial sums of money for the rights to use certain Olympic symbols in tightly controlled ways. What a sponsor is paying for is the right to associate their own brand with the brand values of the Olympics.
The Olympic logos and symbols, used by the Olympic organizers and licensed for use to sponsors, are protected by trademark or Olympic-related legislation. Any company that uses these marks without permission infringes upon these trademark rights. Ambush marketing is a term used to describe marketing practices which attempt to create an association with a major event without the ambushing company having paid for sponsorship rights. However, what distinguishes it from simple trademark infringement is the fact that ambush marketers generally do not use the trademarks of the event organizers. Instead, ambush marketers create associations through more oblique references to the event itself.
The huge amounts of money involved in the organization of major events, and in paying for sponsorships, have led organizations like the IOC to push for legislation to protect specifically against ambush marketing. In fact, it is now no longer possible to succeed in a bid to host the Olympics without a promise to enact anti-ambush marketing legislation. Canada did so for the Vancouver 2010 Olympic Games. Section 4 of the Olympic and Paralympic Marks Act specifically created a “right of association” and two Schedules to the legislation set out lists of common words that might be considered to trigger an illegal association. These words included: gold, silver, bronze, winter, 2010, twenty-ten, Whistler, Vancouver, and Games.
Anti-ambush marketing legislation is controversial. Some of this controversy is discussed by Benoit Séguin and me in a recent article on the subject. (The article is published in a new book titled Intellectual Property for the 21st Century: Interdisciplinary Approaches). It is not clear, for example, that ambush marketing legislation is truly necessary – beyond serving as a ‘comfort blanket’ for event sponsors. Concerns have also been raised that by attempting to outlaw “associations”, such legislation is unduly broad and vague. It also goes far beyond preventing major competitors of event sponsors from launching ambush marketing campaigns leading up to and during the event. For example, such legislation generally applies equally to all businesses, large or small, even if no one would expect a small local business to be a major event sponsor. Such laws limit the ability of small businesses to make even indirect reference to a major event taking place within their own community. This would seem to be a significant – and rather disproportionate -- limitation on freedom of expression. Further, such legislation privileges event organizers over all other stakeholders. Many athletes or national sporting organizations have their own commercial sponsors – indeed, athletes might be unable to train or compete without such sponsors, and national sporting organizations would not be in a position to develop young talent without commercial sponsorship. Yet when an athlete competes in the Olympics, their own commercial sponsors are limited in the extent to which they can celebrate their sponsored athlete’s achievement without running afoul of anti-ambush marketing laws. In another article, my co-authors and I also raise the issue of whether anti-ambush-marketing legislation might actually allow large corporations to put their legal teams to work to exploit loopholes in the legislation, with the result that major competitors of event sponsors are able to launch challenge-proof ambushes, while ‘associations’ created by small and medium businesses lacking the same resources are suppressed by the law.
Part of the problem with anti-ambush marketing laws is that there is a very broad range of conduct that can fall within the ambit of an “association” with an event. Some activity is clearly more problematic than others. In the case of North Face, it would appear that the company launched a new line of red and white, maple leaf flag-emblazoned sportswear in the lead up to the Sochi Games. Although no Olympic logos were used on the clothing, some items apparently featured dates linked to the Games and some promotional materials may have made direct reference to Sochi. The collection was initially called “village wear” and is now referred to as the “international collection”. The characters RU14 also appeared on some items. NorthFace is not, of course, an Olympic sponsor. The matter may never head to court – if it did, it might provide an opportunity for the courts to explore some of the challenging legal questions around the limits of legal protection against ambush marketing.
Tuesday, 11 February 2014 07:49
In December 2013, Justice Campbell of the Federal Court of Canada awarded 10 million dollars in statutory damages to Twentieth Century Fox Film Corporation against Nicholas Hernandez and two unknown defendants. The court also awarded an additional half a million dollars in punitive damages. The decision was reached by default judgment, which means that the defendants did not respond to the lawsuit.
Statutory damages for copyright infringement have been available under Canada’s Copyright Act since 1997. Essentially, a plaintiff in a copyright infringement suit has the option to choose to receive statutory damages rather than to establish the actual quantum of damages suffered. For infringement with a commercial purpose, statutory damages range from a minimum of $500 to a maximum of $20,000 for all of the infringements related to a given work. A plaintiff might choose statutory damages when the amount of their loss is either very small or is difficult to quantify. Statutory damages are of particular benefit to large corporate rights holders whose works are downloaded in large quantities from the internet, and who might otherwise face difficult challenges in proving actual losses. Among other things, statutory damages provisions in the U.S. have made it worthwhile for record companies to sue individuals for music downloading. Where a defendant has downloaded 1000 songs, for example, the per-work damage awards would quickly add up to a significant total, making the lawsuit not simply about the recovery of damages (which may greatly exceed the benefit obtained by the defendant) but also about punishment and arguably deterrence. In Canada, the 2012 amendments to the Copyright Act have made these kinds of lawsuits more difficult in cases where the defendants have copied works for purely private purposes. In such cases, the amount of statutory damages is considerably reduced and such damages are awarded not per work, but rather for all infringements and for all works in any given proceeding.
In Twentieth Century Fox v. Hernandez,* the defendants were alleged to have operated two websites that made unauthorized copies of episodes of both The Simpsons and Family Guy available for free download or streaming. These activities were not of a purely private nature – the copies were made with a view to disseminating them further, and there was evidence that the defendants profited from their venture. The Court did not provide a detailed accounting of how it arrived at the statutory damages award of $10,000,000. For example, it did not identify how many episodes of the two television series were made available for download. As a result, it was not clear whether Justice Campbell was awarding damages at the low or high end of the scale – or somewhere in between. Since no amount per work is actually specified (nor is the number of works provided) it is no surprise that there is also no explanation of the rationale for the per-work amount. These details would seem to be important in shaping the jurisprudence in relation to these types of awards. Further, according to Justice Campbell, the award of statutory damages alone was not sufficient “to achieve the goal of punishment and deterrence of the offense of copyright infringement in this case”. For this reason, the additional half million dollars in punitive damages was awarded. Without any indication of the number of works at issue or the per work amount of damages, it is also difficult to assess the appropriateness of the award of punitive damages. Given that the defendants did not defend themselves in the proceedings, it is not likely they will file an appeal; however, the low likelihood of an appeal is not an excuse for not providing full reasons to explain the award of damages. [Note that there are approximately collectively about 750 episodes of the two shows. If all episodes were made available from the websites, then the damage award would be just over $13,000 per episode – on the high end, but not at the top of the scale.]
Mistrale Goudreau and Joao Velloso have written an interesting article on statutory damages in the recently published book Intellectual Property Law for the 21st Century: Interdisciplinary Approaches. In their piece, titled “Punishment Private Style: Statutory Damages in Canadian Copyright Law”, Goudreau and Velloso argue that punitive and statutory damages are used by courts to penalize copyright infringement – as is evident in the Hernandez case. The authors argue that the result is a form of punishment for infringing activity that lacks the procedural safeguards that are normally present in criminal prosecutions. While the authors’ focus is more on the use of statutory damages in non-commercial contexts, they offer some thoughtful – and critical – insights into the role of statutory damages within our copyright regime.
* Note that the court decision discussed in this blog is not available from the Federal Court’s website. This link is to a private website that has made the decision publicly available.
Monday, 03 February 2014 14:02
The goals of the open government movement – which has spread rapidly around the world in the last five years – are to increase government transparency and accountability, to engage citizens and increase their participation in government, and to improve governance. This is to be done primarily through enhanced access to government information and improved methods of citizen-government interaction. Open government includes three main streams: open access, open data, and open participation. The open data stream also carries with it the goal to stimulate innovation and economic development by making government data available in reusable and interoperable formats and under open licences.
Canada signed on to the Open Government Partnership in 2011. In doing so, it committed to taking a number of steps, including developing an Action Plan for open government that would set out specific goals and commitments. The OGP also requires governments to report on their progress, and provides independent review of each government’s updates.
Canada’s Action Plan for Open Government set out a series of commitments spread over a 3 year period. It was published in 2012 and Canada submitted its first self-assessment report to the OGP in 2013. This progress report has been the subject of an independent review by the OGP, through its independent reporting mechanism, and a copy of this review is now available for public comment.
The independent review confirms that the Canadian government has made significant progress on a number of the commitments it set out in its Action Plan, and that many of these commitments are either on target or ahead of schedule. Some of these achievements are considered to be “clearly relevant” to the values of the OGP and of potentially high impact. These include the completion and launch of a new Open Government Licence (commented on in an earlier blog post), measures taken under the International Aid Transparency Initiative, the online publication of resource management data, and the electronic publication by federal regulators of regulatory plans.
The review, carried out by Carleton University Professor Mary Francoli, does note, however, that a number of the government’s other commitments are less ambitious and less directly relevant to the goals of the OGP. This does not mean that they are not worth doing, just that they are less impactful. One issue, therefore, would seem to be whether the government’s plan has struck the right balance between ambitious and significant goals and low hanging fruit.
A further concern is that the broad commitment to open government has been channelled primarily into developments around open data. While open data is important, and while developments in this area have been meaningful, open access and open participation are crucial components of open government and are essential to realizing its objectives. Indeed, one of the recommendations in the review document relates to the need for the government to broaden its focus so as to give more attention to open access and participation.
Through her consultation with stakeholders and other organizations, Francoli identifies a broad range of concerns over how the federal government communicates with citizens, and how it compiles, shares and archives information. The review is particularly critical of the government’s tepid improvements to access to information in Canada, and it suggests that nothing short of legislative reform will deliver necessary improvements. The review also indicates that there have been shortcomings in citizen and stakeholder engagement and participation in the development of the goals and priorities of open government. The review also makes recommendations regarding improved information flows, the need to ensure that data is released in useable formats and with appropriate metadata, and the need to expand integrity commitments. While the review notes that open government has a strong champion at the federal level in the Treasury Board Secretariat President Tony Clement, it also identifies a need for broader support within the government.
A copy of the report and information on how to provide comments and feedback on it are available here.
Friday, 31 January 2014 09:46
A terrific collection of papers that I had the pleasure of editing along with Mistrale Goudreau, Courtney Doagoo and Madelaine Saginur, titled Intellectual Property Law for the 21st Century: Interdisciplinary Approaches, has just been published by Irwin Law. The book is available for sale from Irwin as an eBook or in paperback format. It is also published under a Creative Commons Licence, and individual chapters can be downloaded here.
This book flows from a workshop we hosted at the University of Ottawa. Our goal was to bring together Canadian academics interested in interdisciplinary approaches to IP law. Participants were from many different disciplines, including law, English, cultural studies, music, library and information studies, criminology, political science, and sports management. The papers cover a broad range of IP subject matter, including copyright, trademark and patent law, as well as laws restricting ambush marketing, and personality rights.
The collection of papers pushes us to think about the importance of interdisciplinary perspectives and approaches in a context where intellectual property law is no longer simply a matter of commercial relationships, but also trenches deeply on issues of economics, culture, health, innovation, creativity, and intellectual freedom. Some of the papers use insights from other disciplines to examine how the law should be interpreted and applied (in the context of copyright infringement analysis in music or film, for example), others bring to bear the theories of methodologies of other disciplines to elucidate the historical evolution of certain IP rights, or the political discourse surrounding IP law and its reform. There is truly an immense breadth of content here, from a discussion of evidentiary problems in business method patent litigation to the impact of commercialization approaches to scientific research on academic scientists. Check out the table of contents to get a sense of the full range of topics.
Wednesday, 29 January 2014 13:28
Open licences have become a popular means by which works covered by copyright or database rights are made available for use and reuse. In fact, open licences are so popular that even governments are embracing them. Canada’s federal government, for example, has launched its own open government licence, and similar licences have been adopted by provincial and municipal governments. Some open licences contain restrictions (such as on commercial use) – or requirements (such as attribution), while others contain virtually no limitations. Open licences promote sharing of works as well as the creation of new works derived from or built upon the licensed works.
The popularity of open licences, as well as the diverse contexts in which they are developed and used, mean that compatibility between the licences can be a problem for users who wish to combine two or more works that have been made available under open licences. While basic technical interoperability is required when combining digital works, ‘legal interoperability’ is a term used to describe the ability to compile works made available under different open licences in such a manner that the legal status of the resulting compilation is clear. This can be surprisingly challenging. Given that open licences are generally designed to be accessible and user-friendly so as not to stifle creativity under a blanket of legalese, it can be a problem if creators are left having to determine the compatibility of the different rights and permissions set out in a variety of open licences.
This is what makes the newly launched website CLIPOL.org an interesting and potentially important resource. CLIPOL.org is an initiative of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), and was funded in part by Natural Resources Canada through its GeoConnections programme. The website contains a catalogue of open licences from around the world and from a range of different contexts. Two apps are available from the site to use with the licence database. The “text compare” app has two functions. The first allows a user to evaluate the compatibility of different licences in the database. Highlighting and redlining are used to show how the actual licence terms differ in the two licences. The second a schematic comparison of a family of similar licences. The other app available from the site is a compatibility tool which allows users who are thinking of combining works under different licences to assess the extent to which the different licences are compatible.
The website also offers a useful set of resources on open licencing through the link to the CIPPIC Open Governance site, and it provides links to other major sites that deal with open licencing issues.
The project is already publicly available, but it will be formally launched through a free webinar hosted by GeoConnections on February 11, 2014.