As the creative industries continued to grow economically in importance in 2014, so have the stakes in copyright litigation. Increasingly, the courts have been challenged to resolve complex disputes arising from new uses of works and other subject matter brought about by innovations in technology. While content is often a core and indispensable element of new and innovative services, products or offerings, frequently parties dispute whether the use requires permission and payment to rights holders or can be engaged in without permission or payment. This post reviews some of the highlights of the court battles of 2014 in Canada and other Commonwealth countries, the United States and the European Union.
Subsistence of copyright
It is trite law that copyright only subsists in original materials that are works or other subject matter under copyright laws. 2014 saw its share of disputes dealing with subsistence.
In the U.S., in Oracle America, Inc. v Google Inc. 750 F.3d. 1339 (CAFC May 9, 2014), the Federal Circuit Court of Appeals ruled that 7,000 lines of declaring code and the overall structure, sequence, and organization of Oracle’s 37 Java API packages that Google had copied when developing its Android operating system were protected by copyright. The fight is not yet over. Google has applied for certiorari to the SCOTUS and the claim that its copying was a fair use still needs to be resolved.
Google is also at the centre of a dispute over whether the performer Garcia has a copyright in her performance in the video Innocence of Muslims. The Ninth Circuit Court of Appeals in a 2-1 split decision in Garcia v. Google, Inc., 766 F. 3d 929 (9th.Cir. July 11, 2014) held she has a copyright in her performance and ordered Google to remove the video from YouTube and to take all reasonable steps to prevent further uploads to its site.* Even after the panel issued an amended decision, the court agreed to rehear the decision en banc. The re-hearing took place on December 15, 2014 (oral argument available here) and the decision of the full court is still outstanding.
Judge Posner of the Seventh Circuit also rendered a decision dealing with copyright in performing rights declining to find a copyright in the “Banana Lady” performing singing telegrams in Conrad v. AM COMMUNITY CREDIT UNION (7th. Cir. April 14, 2014). However, the opinion was not premised on the performance not being capable of giving rise to a copyright right. Rather, the court held that the “performance itself was not copyrighted or even copyrightable, not being “fixed in any tangible medium of expression…To comply with the requirement of fixity she would have had either to have recorded the performance or to have created a written “dance notation” of it.””
Judge Posner also rendered a decision in Klinger v. Conan Doyle Estate, Ltd., 755 F. 3d 496 (7th. Cir. June 16, 2014) confirming that when a story falls into the public domain, “story elements — including characters covered by the expired copyright — become fair game for follow-on authors”. Thus, the Conan Doyle Estate cannot use its expired copyrights to prevent sequels to the Sherlock Holmes stories, as long as derivative works still subject to copyright are not used.
In 2014, courts in New York, Florida, and California all recognized that U.S. common law copyright provides a performance right in pre-1972 sound recordings. See, Flo & Eddie, Inc. v. Sirius XM Radio, Inc. 2014 WL 6670201 (S.D.N.Y., Nov. 14, 2014), Flo & Eddie, Inc. v. Sirius XM Radio, Inc. 2014 WL 7178134 (S.D.N.Y., Dec. 12, 2014) denying motion for reconsideration. Also, Flo & Eddie, Inc. v. Sirius XM Radio, Inc. (C.D.Cal., Sep. 22, 2014) also finding a common law performance right in pre-1972 sound recordings; and Capital Records, LLC v Sirius XM Radio, Inc (Sup.Ct.Cal. Oct. 14, 2014) recognizing a public performance right in sound recordings in California. The U.S. Federal copyright law provides a digital audio-transmission right for sound recordings first published in the U.S. after 1972. Foreign pre-1972 sound recordings including those first published in Canada (and not simultaneously published in the U.S.) are subject to U.S. federal copyright protection under Section 104A of the U.S. law.
An Australian court ruled that copyright can subsist in input criteria to provide statistical analysis of rugby matches in Sports Data Pty Ltd v Prozone Sports Australia Pty Ltd [2014] FCA 595. However, the court expressed the opinion in the course of refusing the grant an interlocutory injunction that the likelihood of finding infringement was low. The protection for the input criteria was limited to protection thereof as a compilation. Further, since the plaintiff Sports Data could not establish either access to or use of a substantial part of the selection or arrangement of the input criteria, it could not establish a likelihood of success on the issue of infringement.
Canadian courts also rendered several decisions dealing with subsistence of copyright in 2014. In Denturist Group of Ontario v. Denturist Association of Canada, 2014 FC 989, the Federal Court ruled that copyright does not subsist in the five-digit numerical codes and corresponding description of denturist services contained within the DAC Procedures Codes and DAC Fee Guides. The trial judge stated that he did “not find that there is sufficient originality or skill and judgment to justify copyright subsisting in mere five-digit numerical codes and/or the functional descriptions of the denturist services associated with those codes.” However, the judgment failed to give any reasons supporting its conclusion.
In Geophysical Service Incorporated v. Canada-Nova-Scotia Offshore Petrolium Board, 2014 FC 450, the Federal Court expressed the view that processed seismic data could be sufficiently original to be protected as a compilation by copyright. However, it found that the limited uses and the extensive manipulation and reworking of the data by the defendant Board did not constitutes a reproduction or adaptation thereof such as to constitute an infringement of copyright.
Several other decisions found web sites to be original and protected by copyright. See, Animal Welfare International Inc. v. W3 International Media Ltd., 2014 BCSC 1839; Tremblay v. Plourde, 2014 QCCS 201. A decision of a British Columbia court in I.J. v. J.A.M., 2014 BCSC 89, found that an idea for re-engineering an order tracking and shipping system was not protectable as “there is no copyright in any arrangement, system, scheme or method for doing a particular thing or process”.
Jurisdiction
The term “jurisdiction” is used in a variety of different, but often related senses. A critical aspect in the Internet context is jurisdiction simpliciter; when a court will assume jurisdiction over a dispute between parties. Canadian common law courts apply the real and substantial connection test in accordance with principles established by the Supreme Court in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. They also apply the real and substantial connection test to determining whether a communication to the public falls within the territorial jurisdiction of the Copyright Act following the decision of the Supreme Court in SOCAN v. Canadian Assn. of Internet Providers, [2004] 2 SCR 427.
The issue of jurisdiction simpliciter arose in the Canadian case, Davydiuk v. Internet Archive Canada, 2014 FC 944 in which the Federal Court held it had jurisdiction over the Internet Archive for alleged copyright infringements by archiving materials on a Canadian website and making them accessible to Canadians from servers in the US. Applying the connecting factors identified by the Supreme Court in the SOCAN case, the court held that the relevant connecting factors to Canada that satisfied the real and substantial connection test consisted principally of the automated copying of the copyright materials from a Canadian web site and the access of the archived materials from Canada.
In the UK, the courts examine relevant factors to determine whether foreign sites target UK residents. In Paramount Home Entertainment & Anor v British Sky Broadcasting & Ors [2014] EWHC 937 (Ch) (18 February 2014), a UK court held that the UK copyright statute applied to foreign websites that offered streaming of movies and TV programming to UK users. In 1967 Ltd & Ors v British Sky Broadcasting Ltd & Ors [2014] EWHC 3444 (Ch) (23 October 2014), another UK court held that foreign BitTorrent websites that offered services to UK users was subject to UK copyright laws. A third case, Omnibill (Pty) Ltd vEgpsxxx Ltd & Anor [2014] EWHC 3762 (IPEC) (17 November 2014), found that posting photos on a website hosted in South Africa infringed copyright in the UK where the photos were available from the South African sub-domain and the site targeted South African, UK and other users.
Online commerce increasingly is also raising the issue of where acts of distribution for copyright purposes occur. In Martin Blomqvist v Rolex SA, [2014] EUECJ C-98/13 (06 February 2014), the Court of Justice of the European Union (CJEU) held that a pirated good is distributed in a member State when it is purchased online from a non-member State and shipped from another non-member State into a member State. Further, according to the court “goods coming from a non – member State which are…copies of goods protected in the European Union by copyright…can be classified as… ‘pirated goods’ where it is proven that they are intended to be put on sale in the European Union, such proof being provided, inter alia, where it turns out that the goods have been sold to a customer in the European Union or offered for sale or advertised to consumers in the European Union”.
The jurisdiction of courts to enforce copyright judgments of foreign courts also arise from time to time. Canadian common law courts will generally enforce a validly obtained foreign judgment including even judgments with suitably crafted injunctive relief. See, Pro Swing Inc. v. Elta Golf Inc., [2006] 2 SCR 612. In Jules Jordan Video inc. c. 144942 Canada inc., 2014 QCCS 3343, a Quebec court recognized and enforced a copyright judgment for monetary damages issued by a U.S. district court.
Technological or media neutrality
The Supreme Court of Canada has stated on several occasions that the Act should be construed in accordance with a principle of technological or media neutrality. The meaning of the concept and how it fits within the principles used to construe the Act, however, have been subject to varying interpretations.
In the case, Labrecque (O Sauna) c. Trudel (bellaza Centre GP), 2014 QCCQ 2595 a Quebec court held that posting a photo on a web site retrieved using Google Image search infringed copyright. The court ruled that the fact that the defendants were able to get their hands on the photograph through the Google search engine on the Internet did not lessen the rights enjoyed by the copyright owner. The court noted that although one might be tempted to think the photo would lose protection when made available on the Internet, that would be wrong. “The fact remains that the rules of copyright apply in the digital environment”. Under the principle of technological neutrality “an author does not lose his rights merely because a work is dematerialized and used or distributed without physical media.”** This view of technological neutrality is undoubtedly correct.
Netflix argued in SOCAN Tariffs 22.D.1 – Audiovisual webcasts and 22.D.2 – Audiovisual user-generated content for the years 2007 to 2013, Copyright Board July 18, 2014, that an obligation to pay royalties on free trials of its service would be a violation of the principle of technological neutrality. It claimed that since only the reproduction right is triggered when a CD is sold in a store, only the reproduction right should be triggered when a digital album is sold online. The CD is an alternative technology to the digital download The Board did not agree with Netflix. Even assuming the principle of technological neutrality could override a clear exclusive right in the Act, it did not apply to the issue before the Board as there “is no alternative-technology equivalent to a Netflix free trial. Video stores never offered a free month’s membership with the right to rent as many videos as the customer wanted for no additional charge. Thus, there is no issue with technological neutrality.”
The Federal Court of Appeal invoked the principle of technological neutrality in Leuthold v. Canadian Broadcasting Corporation, 2014 FCA 173. A main issue in the appeal was whether paragraph 2.4(1)(c) of the Act makes a person who transmits programming to BDUs as part of a network liable for a single network wide communication or for each communication made by each BDU. The court ruled that “paragraph 2.4(1)(c), properly interpreted, has the effect of making a network transmission of cable programming material to the public via BDUs a single infringement of a copyright holder’s rights if the network has not properly cleared the rights with respect to that transmission.” The court did not engage in any detailed analysis of the wording of the paragraph or attempt to explain its purpose. Instead, the court inexplicably appeared to justify its interpretation of the paragraph by noting that this “reading of paragraph 2.4(1)(c) of the Act moves in the direction of technological neutrality in that the number of infringing acts does not vary according to the number of intermediaries in the transmission chain. This is consistent with the goal of technological neutrality which the Supreme Court articulated in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34” ( the ESA case). There is a motion for leave to appeal the decision to the Supreme Court.***
The meaning of the concept of technological neutrality and how it fits within the principles used to construe the Act was also considered by the Federal Court of Appeal in Canadian Broadcasting Corporation v. Sodrac 2003 Inc 2014 FCA 84. The issue in the case is whether broadcasters have to pay for the right to make ephemeral copies of musical works. The issue had been squarely decided years ago by the Supreme Court in Bishop v. Stevens, [1990] 2 SCR 467. The CBC argued that the comments made by the Supreme Court in the ESA case about the principle of technological neutrality had the effect of overruling its decision in Bishop v Stevens. The Court rejected this argument stating that nothing in the ESA case “would authorize the Board to create a category of reproductions or copies which, by their association with broadcasting, would cease to be protected by the Act. ESA did not explicitly, or by necessary implication, overrule Bishop v. Stevens” and that the court was “unable to accept the Broadcasters’ argument that the comments about technological neutrality in ESA have changed the legal landscape to the point where the Board erred in finding that incidental copies are protected by copyright.”
In the course of giving reasons for decision, the court canvassed the various statements made by the Supreme Court about technological neutrality. It stated that in “light of these different views of technological neutrality, it is difficult to know how one is to approach technological neutrality post-ESA. This is particularly true when one considers that in both Robertson and ESA the Court’s decision was reached following an analysis that did not rely on any of the possible variants of technological neutrality.” The Supreme Court granted leave to appeal from the decision of the Court of Appeal. A central issue in the appeal is whether the Court of Appeal erred in refusing to apply the principle of technological neutrality in its interpretation and application of the Act.****
The concept of media neutrality was also discussed in the U.S. case, CAMBRIDGE UNIVERSITY PRESS v. Patton, (11th. Circuit October 17, 2014). The issue in the case is whether placing portions of textbooks on e-reserves constitutes a fair use. The Court rendered a lengthy opinion, reversing, in part, the trial court ruling that some of the uses were infringing. The plaintiffs had argued that the coursepack cases should have guided the District Court’s analysis in the case and that Georgia State University could not alter the fair use calculus simply by choosing to distribute course readings in an electronic rather than paper format. In making this argument, they invoked the “media neutrality” principle, which “mandates that the `transfer of a work between media does not alter the character of that work for copyright purposes.'” The majority of the Court rejected the argument stating:
Plaintiffs’ reliance on the media neutrality doctrine is misplaced. Congress established that doctrine to ensure that works created with new technologies, perhaps not in existence at the time of the Copyright Act of 1976, would qualify for copyright protection. See id. (citing 17 U.S.C.§ 102(a) (“Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed . . . .” (emphasis added))); see also H.R. Rep. No. 94-1476, at 52 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5665 (“This broad language is intended to avoid the artificial and largely unjustifiable distinctions . . . under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed.”). The media neutrality doctrine concerns copyrightability and does not dictate the result in a fair use inquiry. Congress would not have intended this doctrine to effectively displace the flexible work-by-work fair use analysis in favor of a one dimensional analysis as to whether the case involves a transfer of a work between media.
Public performance, communication to the public right, and making available
In the internet networked world, the right to control the release and transmission of works has become one of the most important exclusive rights in the 21st century. The right including the related right of making available was the subject of several important decisions in 2014.
In a landmark decision, the U.S. Supreme Court ruled that Aereo’s Internet based retransmission system infringed the public performance right in American Broadcasting v. Aereo, Inc., 134 S. Ct. 2498. Aereo had tried to architect its television restransmission system to avoid paying copyright royalties or license fees by “renting” dime sized antennae to subscribers. Judge Chin of the US Second Circuit Court of Appeals had called Aereo’s service “a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.” The SCOTUS agreed telling Aereo essentially, it looked like a cable retransmitter, it acted like a cable retransmitter, Congress had specifically amended the Copyright Act to ensure that cable retransmitters publically performed when they delivered programming to subscribers, and that Aereo’s service was indistinguishable in any meaningful way from those services. On remand to the District Court, the court issued a nation-wide preliminary injunction barring Aereo from retransmitting programs to its subscribers while the programs are still being broadcast. See, American Broadcasting Companies, Inc. v. AEREO, INC. (S.D.N.Y. Oct. 23, 2014). As a result, Aereo is now liquidating its assets.
The CJEU released several decisions in 2014 dealing with the communication to the public and the making available rights. In OSA – Ochranný svaz autorský pro práva k dílům hudebním o.s. v Léčebné lázně Mariánské Lázně a.s., CJEU, Case C-351/12, February 27, 2014, the CJEU ruled held that the operator of a spa communicates works to the public when it transmits works through TVs and radios to patrons in rooms.
In Svensson v Retriever Sverige AB, (13 February 2014) CJEU, Case C-466/12 (13 February 2014), the CJEU ruled that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public within Article 3(1) of the Information Society Directive. It held that there was an act of communication, but that the communication was not to the public since it was not to a new public, that is to say, a public which had not been taken into account by the copyright owners when they authorised the initial communication to the public. The reason for this was that all internet users could freely access the works on the other website to which the works had been communicated with the authorisation of the copyright owners. That decision was followed by the later decision in BestWater International (Order) [2014] EUECJ C-348 / 13_CO (21 October 2014), in which the CJEU held that the act of framing to a non-infringing copy of a work made freely available on the Internet did not infringe the communication to the public right since the work at issue is not transmitted to a new public or communicated using a specific technical method different from that of the original communication.
The CJEU also clarified the scope of the making available right in UPC Telekabel Wien (Judgment of the Court) [2014] EUECJ C-314/12 (27 March 2014). It held that a website that makes links to streams and downloads of infringing copies of movies and TV programming available to the public infringes the making available right. Further, it confirmed that the right of making available of streams or downloads of works is complete where only access to the works is made available. There is no requirement to establish any access or transmission to members of the public. The court also confirmed that blocking orders against ISPs are consistent with fundamental rights and freedoms under UE law.*****
Two decisions of the UK High Court confirmed the breadth of the making available right. In Paramount Home Entertainment & Anor v British Sky Broadcasting & Ors [2014] EWHC 937 (Ch) (18 February 2014), the court ruled that websites that offer streaming of movies and TV programming to the public using an embedded player to infringing copies make available and communicate the works to the public. The court relied on Svensson noting that the case ”is…of some interest because it establishes more clearly than previous authority had done that the mere provision of access by means of a hyperlink will normally amount to a communication within the meaning of Article 3(1). Furthermore, it will normally amount to a “communication to the public” within the meaning of that Article.” Later in 1967 Ltd & Ors v British Sky Broadcasting Ltd & Ors [2014] EWHC 3444 (Ch) (23 October 2014), the court also held that users and operators of BitTorrent sites communicate musical works to the public. In both cases the court ordered UK ISPs to block access to the infringing websites.
Meanwhile in Canada the Copyright Board has in two tariff decisions declined to certify tariffs giving SOCAN the right to collect royalties for downloads of musical works on the basis of the ESA case which had decided that the right to communicate works to the public applied only to streams and not to downloads of works. See, SOCAN Tariffs 22.D.1 – Audiovisual webcasts and 22.D.2 – Audiovisual user-generated content for the years 2007 to 2013, Copyright Board July 18, 2014; Re:Sound No. Tariff 8 – Non-interactive and semi-interactive webcasts, 2009-2012. The ESA case, however, was decided based on the Act before the 2012 amendments which were intended to enable Canada to comply with the WIPO Internet Treaties. The treaties require that the making available rights apply to all forms of making works and other subject matter available to the public including both streams and downloads. After the amendments to implement the WCT became effective, the Board convened a proceeding to determine if the right to communicate works to the public now extends to downloads as well as streams. The decision is expected earlier rather than later in 2015.
In August 2014 Canada’s ratification of the WPPT was complete. When that occurred, the new making available right for sound recordings fixed in WPPT countries including the United States became effective. When that occurred, foreign sound recording repertoire from WPPT countries also became eligible for equitable remuneration for the communication thereof to the public. As a practical matter this expanded the eligible repertoire from makers from Canadian and Rome Convention countries to those also in WPPT countries e.g., the United States. Those rights are subject to certain reservations set out in the Ministerial Statement Limiting the Right to Equitable Remuneration of Certain Rome Convention or WPPT Countries, SOR/2014-181 July 14, 2014.
Defenses
There were also some significant decisions in 2014 dealing with defenses to copyright infringement. In Public Relations Consultants Association v Newspaper Licensing Agency Ltd & Ors (Judgment of the Court) [2014] EUECJ C-360/13 (5 June 2014), the CJEU ruled that web browsing of non-infringing copies of works do not infringe the reproduction right based on the exception from infringement for temporary acts of copying that are transient or incidental in nature and which constitute an integral and essential part of a technological process. Later in the year the CJEU in Deckmyn and Vrijheidsfonds (Judgment of the Court) [2014] EUECJ C-201/13 (3 September 2014), ruled that a political cartoon that copied a drawing was capable of being a parody, which the court construed as having to “evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery”. To fall within the exception, the use has also to fairly balance the interests of copyright holders and the freedom of expression of those seeking to use the underlying work.
The fair dealing defense was raised by Netflix in SOCAN Tariffs 22.D.1 – Audiovisual webcasts and 22.D.2 – Audiovisual user-generated content for the years 2007 to 2013, Copyright Board July 18, 2014. Netflix wanted the Board to find that free trials are a fair dealing in the same way that the Board found that free previews of musical works are fair dealing. The Board rejected the defense for several reasons. “First, the analogy between free previews and free trials is weak. In a free preview, the customer can hear a portion of a musical work in a degraded format. In a free trial, the customer can hear complete musical works, to the extent that such works are fixed in the audiovisual work being watched”.
Fair use was also at the center of several U.S. appellate decisions. In Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87 (2nd. Circuit June 10, 2014), the Second Circuit ruled that the creation of a full-text searchable database by a library “is a quintessentially transformative use” and that the doctrine of fair use allows libraries to digitize copyrighted works for the purpose of permitting full-text searches. It also concluded that making copies of works to provide access to the print-disabled is a fair use. As noted above, the Eleventh Circuit released an important decision on whether e-reserves is a fair use in CAMBRIDGE UNIVERSITY PRESS v. Patton, (11th. Circuit October 17, 2014). The publisher plaintiffs in the copyright case applied for a re-hearing en banc by the Eleventh Circuit Court of Appeals, despite the fact that the appeal court unanimously reversed the 2012 district court decision. On December 3, 2014 the Second Circuit also heard oral argument in the Authors Guild v Google Books case.
The U.S. circuit courts of appeals are split on how to apply the fair use factors. The split became evident this fall when the Seventh Circuit refused to follow the cases from the Second Circuit which gives great prominence in weighing the first factor on whether the use is transformative. In Kienitz v. Sconnie Nation LLC, 766 F. 3d 756 (7th. Cir. Sept. 15, 2014), Judge Posner stated:
“We’re skeptical of Cariou‘s approach, because asking exclusively whether something is “transformative” not only replaces the list in § 107 but also could override 17 U.S.C. § 106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under § 106(2). Cariou and its predecessors in the Second Circuit do no explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under § 106(2).
We think it best to stick with the statutory list, of which the most important usually is the fourth (market effect).”
Remedies
The Federal Court rendered several decisions in 2014 dealing with remedies. In Geophysical Service Incorporated v. Canada-Nova-Scotia Offshore Petrolium Board, 2014 FC 450, it clarified that interlocutory injunctions can be obtained in a copyright case where infringement is blatant without proof of irreparable harm. According to the court, there “exist situations where the applicant’s case is sufficiently strong that the threshold for meeting the other two factors can be set so low as to be irrelevant. I believe that this may have been the approach underlying the statement in Diamant Toys, above, that it was not necessary to establish irreparable harm where copying is blatant.” The court in Voltage Pictures LLC v. John Doe, 2014 FC 161 also confirmed that Norwich orders can be obtained against ISPs to obtain subscriber information in aid of copyright infringement proceedings and that “Privacy considerations should not be a shield for wrongdoing and must yield to an injured party’s request for information from non-parties.” The court also reviewed considerations to be taken into account in making such orders.
In June 2014, the Government issued an Order in Council fixing January 2, 2015 as the date that the Notice and Notice provisions in the Copyright Modernization Act come into force. Order Fixing the Day that is Six Months after the Day on which this Order is published as the Day on which Certain Provisions of the Copyright Act Come into Force, P.C. 2014-675 June 12, 2014. The Explanatory Note accompanying the Order in Council describes the new process as follows:
“The notice and notice regime will legally require Internet intermediaries, such as Internet Service Providers (ISPs), hosts and search engines, to take action upon receiving a notice of alleged infringement from a copyright owner…
the Government is bringing into force these provisions after determining that the regime will function without regulations, as the elements in the legislation are sufficient…
To provide Internet intermediaries the time needed to implement or modify their systems before the provisions are in force, the provisions will come into force six months after the publication of this Order in Council.”
Bill C-8, the Combating Counterfeit Products Act received royal assent on December 9, 2014. Some, but not all of the provisions, came into force effective on royal assent. The main copyright related provisions that came into force are:
Civil: S.27 (2.11) It is now an infringement of copyright for any person, for the purpose of doing anything referred to in paragraphs (2)(a) to (c), to export or attempt to export a copy — of a work, sound recording or fixation of a performer’s performance or of a communication signal — that the person knows or should have known was made without the consent of the owner of the copyright in the country where the copy was made.
Criminal: Section 42 (e) and (g) added the following new offenses “possesses, for sale, rental, distribution for the purpose of trade or exhibition in public by way of trade, an infringing copy of a work or other subject-matter in which copyright subsists;” and “(g) exports or attempts to export, for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists.”
The Criminal Code: Pursuant to 59.(1), the definition of “offence” in section 183 of the Criminal Code was amended by adding “(d.1) section 42 (offences related to infringement of copyright of the Copyright Act”, to enable police to seek judicial authorization to intercept private communications in investigations relating to those offences. See, Legislative Summary of Bill C-8.
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*The opinion stated: “Concurrent with this opinion, we have issued an order directing Google to take down all copies of “Innocence of Muslims” from YouTube and any other platforms within its control and to take all reasonable steps to prevent further uploads. This temporary injunction shall remain in place until the district court is able to enter a preliminary injunction consistent with our opinion.”
**Google translate
***Leuthold v. Canadian Broadcasting Corporation, Supreme Court (leave application) file 36030. The Statement of issue is as follows: “Pursuant to Paragraph 2.4(1)(c) of the Act, does a transmission of an unlicensed work protected by copyright by a production undertaking to more than one distribution undertaking result in more than one transmission for which the production undertaking and each of those distribution undertakings are jointly and severally liable?”
****Canadian Broadcasting Corporation v SODRAC 2003 Inc. Supreme Court file 35918. The Court summary of the appeal is as follows: “Intellectual property law — Judicial review — Copyright — Licenses — Licensing societies — Royalties — Ephemeral copies — Application by broadcaster for review of licenses issued by Copyright Board allowed in part — Collective society imposing royalties on producers of content and broadcasters — Licences allow collective society to collect royalties for copies incidental to use of new broadcast technologies — Whether the Court of Appeal erred in refusing to apply the principle of technological neutrality in its interpretation and application of the Copyright Act, R.S.C. 1985, c. C-42 — Whether the Court of Appeal erred by adopting a non-technologically neutral interpretation of the Copyright Act that fails to achieve the correct balance between the rights of copyright holders and users, as well as the public interest in fostering innovation — Whether the Court of Appeal erred by departing from this Court’s jurisprudence on the grounds that they provide insufficient guidance.” (emphasis added)
*****According to the court: “The fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.”