European copyright law used to threaten Canadian public domain site
Music Publishing / November 2007

COPYRIGHT Music Publishing ARTICLE LINK A number of article have appeared commenting on the closure of the International Music Score Library Project which appeared to be a site hosting ‘public domain’ music scores – public domain works in Canada anyway. http://arstechnica.com/news.ars/post/20071022-european-copyright-law-used-to-threaten-canadian-public-domain-site.html http://yro.slashdot.org/article.pl?sid=07/10/21/0559220 and see a summary at http://www.p2pnet.net/story/13749 including comment from two leading Canadian lawyers Professor Michael Geist and Howard Knopf.

Swiss implement MP3 levy
Copyright / August 2007

COPYRIGHT Technology A court ruling in Switzerland will now mean consumers in the country will have to pay a tax on digital music devices such as iPods and MP3 players, as well as some types of audio/video recorders. The one-off tax ranges in price from SFr30-90 ($25-75): The Federal Court rejected consumer complaints about the tax which will be levied by Swiss collection society SUISA. http://www.swissinfo.org/eng/front/detail/Judges_confirm_tax_on_digital_music_players.html?siteSect=105&sid=8013457&cKey=1184162841000  Canada is to implement an ‘iPod’ tax after a decision by the Copyright Board of Canada http://arstechnica.com/news.ars/post/20070720-copyright-board-of-canada-gives-thumbs-up-to-ipod-tax.html

Jobs calls for an end to DRM
Copyright , Internet , Record Labels / March 2007

COPYRIGHT Internet, record labels Set against a background of a record industry in turmoil and increasing consumer annoyance with and regulator disapproval of DRM and a lack of interoperability in downloads (in particular Apple’s own platform restricting DRM) Apple boss Steve Jobs has called on the major record companies to start selling digital music without copy-protection DRM or adopt the Apple Fairplay software. Jobs published an open letter on the Apple website at www.apple.com saying that labels could (1) do nothing (b) adopt Fairlplay DRM or (c) sell without DRM saying that only the third option would stimulate the market and benefit consumers. The RIAA seemed to respond by thanking Jobs for the offer of free Fairplay DRM! In Canada digital music store Puretracks has lifted controversial copy restrictions from part of its catalogue Wednesday, adding its weight to a growing number of industry players that appear increasingly open to unfettered file-sharing. Puretracks will offer 50,000 unrestricted digital files in an MP3 format that can be burned, e-mailed or copied to computers, portable music players and cellphones, said company president Alistair Mitchell. All the tracks come from smaller labels but they include indie giants known for favouring loose controls over music – Nettwerk, whose…

Intellectual Property licensing issues in bankruptcy or insolvency
Business , Copyright / September 2006

INSOLVENCY / COPYRIGHT Artists, record labels, music publishers ARTICLE LINK From the Intellectual Property Institute of Canada This is a link to the very comprehensive 2003 Report by the Intellectual Property Institute of Canada which investigates the thorny issue of ownership and exploitation of intellectual property rights when one party in a contractual relationship is declared bankrupt or insolvent. Whilst primarily looking at Canadian law, relevant laws from the United States, The United Kingdom and Australia are also commented on. The report covers patents, copyrights (including moral rights) and trade marks. Whilst over 170 pages long may be of particular interest to lawyers and managers who represent recording artists and songwriters who sometimes wonder what they can do about unpaid royalties which have disappeared into the ether after the bankruptcy of a recording label or music publisher or find that their A&R manager is now an accountant! For a brief synopsis of UK and Australian law see pp86-87. http://www.ipic.ca/french/member/issues/f_Final_Report_on_Bankruptcy_Sept_16_2003.pdf

Canadian anti-DRM coalition makes timely debut By Bruce Byfield
Copyright , Internet , Record Labels / August 2006

COPYRIGHT Record labels, internet ARTICLE LINK:  A very interesting article explaining the resistance to DRM in Canada and explaining the difference in approaches to copyright protection between Canada and its neighbour, the USA. In particular the copyright levy system in Canada coupled with the strong protection of consumer privacy present major hurdles for the major record labels and film companies to get over if they are to convince legislators to support DRM. http://trends.newsforge.com/trends/06/06/16/203238.shtml?tid=136

Canadian artists and independent labels lament actions of major labels
Copyright , Record Labels / June 2006

COPYRIGHT Record labels As digital music behemoth Ted Cohen delivered the gospel at a Nokia convention in Hong Kong in May saying that “The consumer is now the center of the industry and it is the music companies that have to adapt to consumer needs”, m ajor international music artists based in Canada have banded together to form a group aimed, among other things, at protesting the recording industry’s practice of targeting fans with lawsuits. With Sum 41, Barenaked Ladies, Avril Lavigne and Sarah McLachlan as members, the new Canadian Music Creators Coalition says that ‘ suing our fans is destructive and hypocritical’ and that the majorlabels have been “suing our fans against our will’ and that “laws enabling these suits cannot be justified in our names”. The Coalition goes further by saying that they “oppose any copyright reforms that would make it easier for record companies to do this” adding that the government should repeal provisions of the Copyright Act that allow labels to unfairly punish fans who share music for non-commercial purposes with statutory damages of US$500 to $20,000 per song’. The Group are also concerned about DRM saying that d igital locks ‘are risky and counterproductive’ which post the…

The Rise of Clip Culture
Copyright , Internet / May 2006

COPYRIGHT Television, internet ARTICLE LINK – By Professor Michael Geist. Michael holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached at mgeist@uottawa.ca The popularity of the websites that allow people to share short video snippets is leading to the rise of a clip culture, writes internet law professor Michael Geist. But services such as YouTube, which streams 15 million videos each day, face the anger of copyright owners when clips from existing TV programmes – which of course include music promo videos and clips from concerts – are put up in the site. http://news.bbc.co.uk/1/hi/technology/4825140.stm

Canadian court happy to enforce US copyright infringement judgement
Copyright , Internet / May 2006

COPYRIGHT Internet ARTICLE LINK By Kenneth A Dekker Citing the internet’s unique potential “to cause harm anywhere and everywhere”, Madam Justice Lax of Ontario’s Superior Court of Justice enforced a New York District Court judgment earlier this month against the operators of Ontario-based websites that facilitated the illegal copying and downloading of movies. As the New York court had properly taken jurisdiction and the defendants could establish none of the very limited defences to enforcement, such as a denial of procedural natural justice, fraud or public policy reasons, the judgment was enforced. http://www.mondaq.com/news.asp?e=1&a=39148

Mobile television exempt from federal regulation in Canada
Internet , Media / May 2006

MEDIA Telecommunications, television, internet The Canadian Radio-television and Telecommunications Commission (CRTC) has announced that mobile television broadcasting services operated by Bell Mobility Inc, TELUS Mobility and Rogers Wireless Inc, in conjunction with MobiTV Inc (MobiTV), fall within the Exemption Order for New Media Broadcasting Undertakings (New Media Exemption Order) and are exempt from federal regulation, including content and Canadian ownership rules. All three wireless carriers provide subscribing customers with real-time access to audio-visual content on wireless handsets. The US-based service MobiTV converts video content to a format compatible with mobile browsers and handsets and provides the servers and connections to allow video streams to travel via the Internet. The CRTC found that MobiTV sends the television signals by the Internet to the Internet gateway of the mobile carrier, and they are then routed to an appropriate tower and transmitted wirelessly for the last mile to the user’s handset, where the user connects to the Internet with a web browser to access the television signals. Thus, because they were both “delivered and accessed over the Internet”, the CRTC concluded that the services fell within the New Media Exemption Order From a summary by Nick Wong in E-Tips Volume 4 No 21, a publication…

Liability for ISPs: Bunt v Tilly & Others
Defamation , Internet / April 2006

DEFAMATION Internet Five years ago Demon Internet had to settle a claim from Laurence Godfrey who was the subject to defamatory messages on Demon internet message boards which Demon failed to remove promptly when notified. But now AOL, BT and Tiscali have been cleared of any liability for defamation when they successfully applied to have a claim for libel struck out. The claim was over allegedly defamatory messages posted on the Usernet message boards but the court held that ISPs could not be held liable as publishers of defamatory material when their only involvement in the matter was to provide a service through which the defamatory statements were transmitted. However those who had rose tinted aspirations that the internet would be a public realm free of regulatory and legal intervention seem distant dreamers now. The Godfrey case is still good law and indeed those who post defamatory articles in chat rooms and on message boards are clearly liable for their actions in law. And publishers who publish defamatory articles are equally liable; from Gutnick v Dow Jones this seems to be on a multi-territory basis as the article is published ‘worldwide’ although recent cases have limited this to meaningful subscription bases where…

Spyware and cookies can trespass: Thomas Kerrins v. Intermix Media, Inc.
Copyright , Internet / March 2006

COPYRIGHT Internet Legislation is always struggling to keep up with technology and in this age of digitization and the internet this has never been truer. But sometimes existing laws can be adapted to solve a new problem area. Recently a federal court in Los Angeles just held that trespass was a viable legal theory to address the alleged distribution of spyware and adware programs. More recently the UK Culture Secretary pointed out that the UK Government did not want more EC legislation applied to the internet to protect children as existing criminal law was more than sufficient to deal with new forms of criminal behaviour facilitated by the internet. A recent Canadian (Ontario) decision has held that invasion of privacy is a common law tort and other Canadian provinces such as Quebec already have a statutory tort for invasion of privacy – again laws which could be applied to privacy invasion in and by digital media. See: http://www.sinrodlaw.com See Law Updates Archive February 2006 See: http://news.com.com/Beware+of+Internet+trespass/2010-1071_3-6033581.html See: http://practice.findlaw.com/tooltalk-013106.html Invasion of privacy is a tort see http://www.canlii.org/on/cas/onsc/2006/2006onsc10045.html Somwar v McDonald’s Restaurants of Canada Ltd , 2006 CanLII 202 Ontario Supreme Court.

High Court ruling to protect Canadian folk singer follows Von Hannover v Germany
Artists , Privacy / March 2006

PRIVACY Artists, publishers In the clearest statement yet that the UK courts will follow the precedents of the European Court of Human Rights when looking at the right to individual privacy under Article 8 of the HumanRights Act 1998 (and the European Convention for Human Rights) Mr Justice Eady issued an injunction against publication of a book about Canadian folk singer Loreena McKennitt and awarded damages of £5,000 against Neima Ash, the author of Loreena McKennit, My Life as a Friend. Ash had been a close friend and confidante of McKnnitt for over 20 years but following the precedents set in the ‘Princess Caroline’ case Mr Justice Eady made it clear that even celebrities has ‘the legitimate expectation to have their private lives protected’ and just because events could have been witnessed in a public place does not make them any less private. There would need to be a high level of misbehaviour before the courts would apply the ‘public interest’ defence for publishers showing how far the law has moved to protect privacy at the expense of press freedom to publish in the last few years. The Guardian 13 February 2006 (from an article by Rupert Elliott) Von Hannover v Germany see Music…

Wyrder And Weirder – Choosing And Protecting A Name
Artists , Trade Mark / January 2006

TRADE MARK Artists Article by Sharon E Groom of McMillan Binch Mendelsohn LLP This article looks at protecting band names and uses the recent law suit by the Canadian band The Wyrd Sistersagainst Warner Bros. for the alleged use of their name The Wyrd Sisters as the name of a band in the new film Harry Potter and the Goblet of Fire. The real life band has been around for 15 years and is claiming that the publicity that has been generated by the use of their name in the film (even prior to the film’s release) has created an unwanted association between their band and the film. As a result, they claim that people are going to be confused between the real band and the fictitious movie band. In addition to damages, the group is seeking an injunction to delay the release of the movie in Canada pending the resolution of this matter. The article goes on to review how you should go about choosing and protecting a name, slogan or logo for your business or other venture, to ensure that you do not infringe the rights of others and that you have the best possible protection for your name LINK http://www.mondaq.com/article.asp?articleid=36620&email_access=on

Canada – IP year in Review – Copyright

COPYRIGHT Internet, record labels, music publishers, artists Article; By Antonio Turco Blake, Cassels & Graydon LLP A review of Canada’s busy copyright year where despite the failure of the legislature to bring in new statutory provisions (The Act to Amend the Copyright Act, Bill C-60) the Federal Court of Appeal made a landmark decision relating to online file swapping. http://www.mondaq.com/article.asp?articleid=36846&email_access=on

Canada introduces new copyright legislation

COPYRIGHT Internet, record labels, music publishing, artists, television, radio ARTICLE: By Tony Turco and Alex Matheson, Blake, Cassels & Graydon LLP Synopsis: On June 20, 2005, the Canadian Government introduced a bill which proposes significant amendments to the Copyright Act (Bill C-60) and represents the next step in Canada’s ongoing copyright reform. The amendments focus primarily on the challenges that the Internet and digital technologies pose for copyright law. This article was originally published in Blakes Bulletin on Intellectual Property, October 2005. LINK tohttp://www.mondaq.com/article.asp?articleid=35794&email_access=on

Canadian broadcasters to challenge new payments for songwriters and musicians
Artists , Copyright / December 2005

COPYRIGHT Broadcasting, artists A group of Canada’s largest broadcasters is looking to take legal action against the Copyright Board over the issue of royalty payments after new payment structures mean radio stations will have to increase their royalty payments to songwriters and musicians, in some cases, by as much as 30 per cent. These are the first changes for 25 years. Corus Entertainment, which owns radio stations right across the country, says this ruling will cost the network millions of dollars a year and it could lead to layoffs. Corus is joining CHUM and other networks in the fight. They’re asking for a judicial review of the ruling by the Copyright Board of Canada that radio broadcasters that earn more than $1.25 million will be paying a higher rate of 4.4 per cent of their revenues to SOCAN and 2.1 per cent of their revenues to NRCC. The old rate was 3.2 per cent to SOCAN and 1.44 per cent to NRCC (SOCAN is the Society of Composers, Authors and Music Publishers of Canada and NRCC is the Neighbouring Rights Collective of Canada).http://www.cbc.ca/story/arts/national/2005/11/07/Arts/radio_051107.html

Canadian nightclub’s scanning of ID found to violate Alberta’s privacy legislation
Health & Safety , Live Events , Privacy / December 2005

HEALTH & SAFETY, PRIVACY Live Music The Alberta Privacy Commissioner has found that the scanning of patrons’ identification at the door of a nightclub violates the province’s Personal InformationProtection Act (PIPA). The report concluded that purposes for which the personal information was collected were not reasonable, contrary to section 11 of PIPA. The widespread practice of photo-scanning ID in nightclubs was apparently intended to deter violent or criminal behaviour.  However, the Commissioner found that Penny Lane Entertainment, the owner of the nightclub, failed to demonstrate that the collection of this type of personal information would in fact address this issue. The complaint was filed by the author of this summary, Deeth Williams Wall summer student Nyall Engfield. The decision calls for Penny Lane Entertainment to purge the data that has been collected and cease the practice.  Such a decision is not binding, but if Penny Lane Entertainment does not comply with the finding, then an inquiry that could result in a binding order will be launched. Also see: http://makeashorterlink.com/?Y3C62502C. From a Summary by Nyall Engfield in E-TIPS, a publication of Deeth Williams Wall LLC. E-Tips is edited by Richard Potter QC . To review past issues of the E-TIPS ® newsletter, visit: http://www.dww.com/newsletter/archive.html

Canadian Courts give out mixed messages as the Ontario Court of Appeal
Defamation , Internet / November 2005

DEFAMATION TV and Radio, Internet, Newspapers Jurisdiction issues: Overturns Jurisdiction Decision in Washington Post Case but BC Court finds it has jurisdiction in an action against New York Post Taken from a summary by Michael Erdle in E-Tips: E-Tips is a publication of Deeth Williams Wall and edited by Richard Potter QC. The Ontario Court of Appeal has overturned a controversial lower court decision which had held that it did have jurisdiction in a lawsuit against the Washington Post brought by a United Nations official. The appellate court held that the claimant had no substantial connection with Ontario – so the court had no jurisdiction. The Washington Post published articles in January 1997 about a, Cheickh Bangoura who was employed by the United Nations in Africa. The articles related to Mr Bangoura’s conduct in a prior posting with the United Nations. Bangoura moved to Ontario some time before the action was commenced, more than six years after the publication of the articles. There were only seven subscribers to the Washington Post in Ontario when the articles were published. Although the articles were available through the newspaper’s online archive, there was no evidence that anyone in Ontario other than Bangoura’s lawyer had accessed them. The trial…

Who Owns Barbie – Copyright Owners and Artists disagree

IMAGE RIGHTS, COPYRIGHT FAIR USE Artists, Record Labels, Film, Television, Internet ARTICLE:  John Petrick in seacoastonline.com An interesting article from the USA on the use of cartoon and other fictional characters in modern art. Is it parody – does it fall under the ‘fair use’ provisions of US law or even under the right to free speech? Or is the use of characters such as Batman & Robin, Micky Mouse and Barbie in any context without permission an infringement of the owner’s intellectual property rights? “In 1994 2 Live Crew were sued for its rewritten version of Roy Orbison’s classic song “Pretty Woman.” The case ultimately went to the U.S. Supreme Court, which found the song was “fair use” in that it was a parody. It’s a seminal case for artists and their lawyers, in that it’s the first to make such distinctions. Also in favor of artists’ rights was a more recent case in which Mattel sued Utah photographer Tom Forsythe for copyright infringement after he created a series of images titled “Food Chain Barbie.” The collection showed Barbie dolls posing in every kind of kitchen appliance from blenders to toaster ovens. Mattel didn’t care what he was trying to…

Canadian Supreme Court rule technology levy illegal

COPYRIGHT Record Labels, Music Publishers, Technology The Supreme Court of Canada has ruled that the Canadian Private Copying Collective cannot apply a levy on digital music players. The $4M collected to date must be paid back to the device manufacturers and importers. The Supreme Court upheld the Federal Court of Appeal’s decision to quash CPCC levy on i-Pods and other MP3 players and other similar digital music devices which was initially approved by the Canadian Copyright Board. The Supreme Court has refused to hear further arguments regarding a levy and confirmed that that the Copyright Board was ultra vires its authority when it applied the private copying levy to digital audio recorders, and that the levy was an unconstitutional tax. The levy was collected on the basis that individuals ordinarily use these devices to make copies of recorded music for personal use. The Canadian Private Copying Collective, a non-profit agency that collects tariffs on behalf of musical artists and record companies, had been pursuing the appeal and has said that it is “disappointed” and that it felt that it was “self-evident that those products are sold for the purpose of copying music” The group argues that since many people use…

Canadian court rejects the “Single Publishing Rule” in an internet defamation case: Carter v BC Federation of Foster Parents Association et al (2005)
Defamation , Internet / September 2005

DEFAMATION Internet The British Columbia Court of Appeal has ruled that the so-called “single publishing rule” often used in the US has no application in Canada. Under the US rule the publication of a libel gives rise to only one cause of action – when the libel is first published – even though there may be later deliveries of the same libel, for example, by way of later sales of a book containing the same libellous statement. The Court noted that both English and Australian courts had rejected the single publishing rule. Although a potential injustice could arise if a plaintiff were allowed to mount a series of lawsuits based on a single article when re-published, the Court of Appeal noted that courts have abuse of process jurisdiction to deal with such situations. From a summary of the case by Richard Potter QC editor of E-Tips. Published in E-TIPS® newsletter, Vol 4 No 4, see: http://www.dww.com/newsletter/archive.html

Canadian Appeal Court maintains privacy right for file-sharers

COPYRIGHT Record Labels, Music Publishers, Internet The Federal Court of Appeal in Canada has upheld an earlier ruling that prevents record companies from forcing ISPs to hand over the names of suspected file-sharers without detailed consideration of privacy issues and substantial evidence. However the judgment is something of a mixed ruling, as the door is now open for record companies to launch new rounds of litigation. Labels have, in the ruling, been given a 27-page document that can be used as a set of guidelines for legal actions against file-swapper. It is described as a “roadmap of how to present file-sharing evidence in future”. The court ruled that the Canadian Recording Industry Association (CRIA) would require additional evidence to proceed against 29 suspected sharers who are said to have collectively made 43,541 tracks available for download. Federal Court Judge Konrad von Finckenstein ruled last year that the music companies had failed to make a clear case of infringement and a case that public interest outweighed privacy concerns. However the Court of Appeal have qualified this ruling and also did not agree with Justice Finkenstien’s rulings on the legality of downloading in Canada. See: http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=8554843 and Law Updates May 2004 IFPI COMMENT…

Canada to Implement Internet Treaties with Copyright Act Amendments
Copyright / May 2005

COPYRIGHT All areas ARTICLE: by Jason Young Last week Canada moved one step closer to dealing with some of the thornier intellectual property issues of the digital era. The proposed amendments to Canada’s Copyright Act chart a “made-in-Canada” course to implementing the WIPO ‘Internet Treaties’, which Canada signed in 1996, turning away from the US and Australian approaches in a number of key areas. First, the proposed bill would adopt a limited anti-circumvention provision for technological protection measures. That is, the circumvention of a technological protection measure applied to copyright material would only be illegal if it was carried out with the objective of infringing copyright. Legitimate access, as authorized by the statute, would not be altered. The proposal further anticipates that circumvention for the purposes of making private copies of sound recordings would not be permitted. Second, the amendments would adopt a new exclusive right of “making available”. The right would allow copyright holders to authorize the availability of their protected works online, thus making it illegal to passively make available music files over a peer-to-peer network, an evidentiary problem which the Federal Court eliminated last year in its decision in BMG Canada v John Doe [2004] 3 FC 241. The amendments will also…

Noise fines in New Jersey and Toronto
Health & Safety , Live Events / April 2005

HEALTH & SAFETY Live Music Industry A New Jersey state appeals court has rejected a bid by the former owner of the Clarksburg Inn to overturn two convictions of violating the township’s anti-noise ordinance, ruling that such terms for noise as “loud,” “unnecessary,” and “unusual” don’t have to be defined by decibel levels. A 2003 trial before Municipal Court Judge Debra Gelson resulted in $1,250 in fines and $60 in court costs for summonses issued to the restaurant by the State Police, which provides police coverage to the township. The decision was upheld on an initial appeal to the Law Division of Monmouth County Superior Court. Roger Weltner, one of three witnesses at the municipal trial, testified that he lives 81 feet from the Clarksburg Inn and endured ongoing disturbances because of loud music. Weltner said he called police three times to complain on the night of Feb. 1, 2003. A three-judge panel of the Appellate Division of Superior Court wrote in its decision last week that attorney Richard J. Simon’s main argument for vacating the convictions that the township ordinance is unconstitutional because its definition of noise is vague was “unpersuasive.” Though 46 New Jersey municipalities regulate noise based…

Canadian MP3 Player levy ruled illegal

COPYRIGHT Record Labels, Music Publishers, Technology Consumers may soon be paying less for MP3 players after the Federal Court of Appeal ruled that special copyright levies applied to digital music players are not legal. A 71-page decision by Mr. Justice Marc Noël found that although the Copyright Board of Canada was seeking to protect music writers and performers from the “harm” caused by digital copying of music when it imposed the MP3 levies last December and that such a levy might be desirable, the Board did not have the legislative authority to do so. Canada’s Copyright Act gives the federal board the authority to apply levies on blank media such as compact discs and audio cassettes. But the wording of the act has not kept up with the new technology of MP3 players. In 2004 MP3 sales are expected to generate $5-million of the $25- to $30-million in levies collected for musicians. The levies range from as little as $2 to as much as $25 per device. The biggest charge is paid by consumers of the iPods, which have among the largest capacity to store music. In Canada, the $400 price tag for an iPod includes a $25 copyright levy….

Creative Commons Launched in Canada
Copyright / November 2004

COPYRIGHT All Industry Areas On September 30, 2004, the Canadian Creative Commons project was launched online. Led by the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic, it is designed to allow Canadians who create digital works, such as web sites, texts, courseware, music, film and photography, to share their works and allow others to copy, modify and redistribute them. The project attempts to create a balance between a system of total creative control – the “all rights reserved” scenario and an unprotected public domain in which creators are vulnerable to exploitation “no rights reserved”. A creator using the Creative Commons licence will be able to publicise terms and conditions under which other creators may have access to the work’s source code. In other words, it’s a system of “some rights reserved”. The system has already been launched in the Netherlands and the US Creative Commons was established in 2002 and has provided licences to more than three million digital works. The conditions include the following: (a) attribution (others may copy, distribute, display and perform the work, and any derivative works based on it, if the creator is given credit); (b) non-commercial use (others may use the work…

The Supreme Court of Canada Rules That All Internet Transmissions Into Canada Are Covered By Canadian Law

COPYRIGHT Internet, Music Publishers, Record Labels The Supreme Court of Canada today confirmed that internet transmissions into the country from outside are covered by domestic Canadian copyright law, regardless of the origin of the transmission. The ruling arises from a court case in Canada, in which the international and Canadian Recording Industry organisations, IFPI and CRIA, and other rights holders organisations sought to confirm that communications which travel across Canada’s border, and are received in the country, should be subject to Canadian copyright law. The intervention took place following an appeal by Canadian Internet companies against a tariff by the Society of Canadian Composers, Authors and Music Publishers (SOCAN), a performing rights society. The Supreme Court confirmed the industry’s understanding of the law, ensuring that rights holders are protected under the Canadian Copyright Act against unauthorised transmissions in Canada, regardless of where they originate. Source www.ifpi.org However, Canadian Supreme Court has also ruled that ISPs are not subject to royalty fees. Canada’s high court ruled that the creation of a cache copy by Internet providers is part of their business to provide access to users, who have an expectation of freedom and privacy , and should not mean the providers have…

Federal Court of Canada Dismisses the CRIA’s Motion For Disclosure in its File-Sharing Suit and Upholds the Legality of Music File Downloading in Canada

COPYRIGHT Record Labels, Internet, Music Publishers, Artists The Federal Court of Canada has dismissed the Canadian Recording Industry Association’s (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who traded music on the Internet. In dismissing CRIA’s motion, the Court came to three key conclusions: (1) The CRIA did not make out a prima facie case of copyright infringement; (2) The CRIA did not establish that the ISPs are the only practical source for the identity of the P2P file swapper; and (3) CRIA did not establish that the public interest for disclosure outweighs the privacy interests of the ISP customers. With respect to copyright, Mr Justice Konrad von Finckenstein stated that copying a song for personal use does not amount to infringement. Individuals in Canada are free to copy music from CDs or tapes or download tunes from the Internet and save them on their own computers. This is provided for in Canadian Law where a levy system operates on some hardware, blank tapes and CDRs. The Court went further and held that copying files and saving them in shared directories on a peer-to-peer (P2P) network (such as Kazaa) is not copyright infringement. Referring to…

IFPI Announces A Wave of International Legal Actions Against File Swappers

COPYRIGHT Record Labels, Artists, Music Publishers IFPI and the recording industry associations in Denmark, Germany, Italy and Canada have announced the first wave of international lawsuits charging individuals with illegally file-sharing copyrighted music. A total of 247 alleged illegal file-sharers face legal action in a move that steps up the record industry’s international campaign against online copyright theft. Further waves of lawsuits against major offenders will be launched in different countries in the coming months. The legal actions charge the individuals with illegally making available hundreds of music tracks for copying, transmission and distribution via file-sharing services. However the move comes against a backdrop of criticisms in the United States where the Recording Industry Association of America has already used similar tactics. Critics point out that the European legal download market is still hampered by a lack of available rights and that the use of lawsuits is heavy handed. However the IFPI argue that More than 600,000 consumers in Europe alone are now accessing a large catalogue of 300,000 tracks that are available from 50 legal online sites. Jay Berman, Chairman and CEO of IFPI. said: “Today’s announcement should come as no surprise. Over the past year the record industry…

First Finnish Claim Against Private File-Swapper

COPYRIGHT Internet, Record Labels, Music Publishing A Finnish court has ordered a 24-year old man to pay claimants, including Canadian rock star Alanis Morissette, 7,000.00 in damages for spreading unauthorised recordings of her concerts on the Internet. The judge found that between 1999 to 2003, the defendant swapped over 1,900 copies of unauthorised concert recordings (‘bootlegs’) for private use. Legal action in Europe has so far been limited to prosecuting people who have tried to make profit rather than those who swap for personal use and has been brought by record labels for use of sound recordings sold as CDs (rather than bootlegs). The Tampere District Court, some 170 kilometres north of Helsinki, ordered the defendant to pay the damages for copyright infringement to various artists and organisations. The Defendant was also fined the limited amount of 408.00 as a criminal penalty reflecting the fact that he had not engaged in the online bootleg swapping for profit and had not made the illegal recordings himself. On his website, the defendant posted lists of bootleg recordings he wanted and what he had to offer in return, as well as his detailed contact information. See : http://entertainment.iafrica.com/news/302448.htm

Canada Follows RIAA Model Despite Legislative Hurdles

COPYRIGHT Internet, Record Labels, Music Publishing The Canadian Recording Industry Association (CRIA) has filed court requests that seek identifying information for subscribers at five Canadian Internet service providers. The information gained from those requests would be used to file copyright infringement lawsuits against people who had made large amounts of music available for upload, the group said. The Canadian record label group had previously warned that it was likely to follow its US counterpart’s legal example, but decisions by copyright authorities had clouded the file-swapping picture in Canada. In December, the Copyright Board of Canada, the country’s top copyright regulators issued a ruling in which they said downloading from file-swapping services such as Kazaa under Canadian law, since the songs were intended for non-commercial personal use (see Law Updates February 2004). However uploading, or sharing with others would not merit the same legal shield. At the time, CRIA lawyers said they disagreed with the regulators’ decision, which came in the context of a ruling on what level of fees to place on blank recording media. Like the Recording Industry Association of America, the CRIA will only be seeking judgements against the most “egregious” examples of piracy. The US lawsuits have…

007 Brand protected in Canada
Trade Mark / April 2004

TRADE MARK Television, Broadcasting, Merchandising Danjaq Inc. v Spiridon Zervas & Dimitr Zervas in Partnership trading as 007(2004) The applicants Zervass had sought to register the marks 007 and 007 PIZZA & SUBS and Design for its restaurant business in Canada. The application was opposed by Danjaq as owner of the trade-marks JAMES BOND 007 and GUN Design based on the novels by Ian Fleming. Danjaq argued that the applicant was not entitled to registration on two grounds: firstly, because the trade-mark 007 had been previously used and made known in Canada and, secondly, that the applicant’s marks were not distinctive. The Registrar of Trade Marks rejected the opposition on the basis of the wide disparity in the wares, services and businesses of the two parties. The opponent appealed to the Federal Court of Canada. On appeal, the Court considered new evidence filed by the opponent regarding the widespread distribution of films featuring the JAMES BOND character which are and were available through television broadcasts and video rentals and the publicity generated by the print media. In reviewing the evidence, the Court had little difficulty in concluding that the opponent’s marks were used and made known in Canada prior to…

Canadian Court Asserts Jurisdiction over the Washington Post in an Internet Libel Action as Defamation Laws in the UK, USA and Australia are Applied to the World Wide Web
Defamation , Internet / March 2004

DEFAMATION Internet The Ontario Superior Court of Justice will allow a plaintiff to pursue his claim arising from alleged defamatory statements published on the Internet by the defendant continuously since January 1997. The primary issue in this case was whether the Court had jurisdiction over a foreign publisher of allegedly libellous statements concerning an international civil servant with residency status in Canada, where the medium of distribution of the statements was the Internet. The Court found that the broad reach of the Internet and the renown of the newspaper itself were factors in demonstrating the multi-state nature of the action. Justice Pitt held that the defendant “should reasonably have foreseen that the story would follow the plaintiff wherever he resided.” The Court was also attracted by the reasoning of a recent Australian case, Dow Jones & Company Inc v Gutnick, [2002] HCA 56, in which the High Court of Australia approved the assertion of jurisdiction where an American corporation published material online that was allegedly defamatory of Mr Gutnick, who was living in Australia (see Law Updates July 2003 and Harrods v Dow Jones). In another Canadian case, Vaquero Energy v Weir, the Alberta Court of Queen’s Bench awarded the Plaintiffs general and…

Canadian Copyright Board Rules on Private Copying Levies and P2P Music Downloading

COPYRIGHT Record Labels, Music Publishers On 12 December 2003, the Copyright Board of Canada issued a decision on private copying levies for 2003 and 2004 and suggested that music downloaded from peer-to-peer (P2P) networks was legal, provided it was in accordance with the private copying exemption found under section 80 of the Canadian Copyright Act . Although the Board froze all existing private copying levies it created new levies for non-removable memory permanently embedded in digital audio recorders. As a result, current levies of 29c on audio cassettes of 40 minutes or longer (no levy applies to tapes of shorter length), 21c on CD-Rs and CD-RWs, and 77c on CD-R Audio, CD-RW Audio, and MiniDiscs will remain in effect until the end of 2004. For devices such as MP3 players that qualify as non-removable memory permanently embedded in audio recorders, new levies were created on a sliding scale related to memory capacity. As a result, units with memory storage of 1 Gigabyte (Gb) or less will be subject to a levy of $2. Recorders with memory capacity ranging from 1 to 10 Gbs will face a levy of $15 per unit. Units with memory storage exceeding 10 Gbs will have a $25…

The Record Industry Suffers Major Setbacks In Three Separate Decisions

COPYRIGHT Record Labels, Music Publishers, Internet The record and music publishing industries have been jolted by three separate decisions from Canada, The Netherlands and the United States of America, all of which create problems in applying copyright law to the personal use of downloaded music files, and P2P file swapping. Firstly, the Canadian Copyright Board has ruled that the personal dowloading of files from the Internet is not illegal in Canada (although the provision of such a service would remain so). Whilst an unusual decision, Canada does have a system of blank tape, software and hardware levies which consumers pay, and alongside this also has an exemption for the personal use of music (contained in the Canadian Copyright Act). In a separate matter, in a case brought by Canadian collection society SOCAN, the Canadian music and telecommunications industries are also awaiting the appeals court’s decision in the Tariff 22 case regarding the liability of telecom and Internet service providers for music downloading. The Canadian ruling was followed by two separate decisions where courts also ruled against industry bodies. In Amsterdam, the Netherlands Supreme Court rejected a case against Kazaa, the popular file-sharing program – ruling that the company cannot be held liable for the swapping…

CONFLICT OVER RIGHTS TO A CANADIAN SAILING ICON
Trade Mark / October 2003

Trade Mark MERCHANDISING A charity set up in 1994 to refurbish the decaying replica of the famous schooner Bluenose, called Bluenose II, has launched a legal action to protect what it claims are valid and subsisting trade marks and copyrights to the ship and its image. The original Bluenose was a famous Nova Scotia-based sailing ship of the early 20th Century. It appears on Canadian dimes and on Nova Scotia vehicle licence plates. Although the original ship foundered in 1946, a replica was built and purchased by the Nova Scotia Government. Bluenose II has been maintained and operated since 1994 by Bluenose II Preservation Trust Society , funded partly by the Nova Scotia Government. The Society has now begun to assert rights to Bluenose marks and images, on the basis of copyright in design of the ship, acquired from the family of the original ship designer, and on the basis of a number of official marks under registered under federal and province trade mark legislation in Canada. A small souvenir company, Tall Ship Art Productions Ltd. is defending claims by the Society that it has infringed the Society’s trademarks and copyright. Tall Ships has been marketing Bluenose products for 27 years, clearly well before the Society…

LEGO BLOCK NOT PROTECTED AS A TRADE MARK IN CANADA
Artists , Internet , Patents , Record Labels , Trade Mark / September 2003

TRADE MARK, PATENTS Record Labels, Artists, Merchandisers, Internet Kirkbi AG & Lego Canada Inc. -v- Ritvik Holdings Inc. In this case the Federal Court of Appeal held that the design of a lego block was not protected by Trade Mark in Canada and that functional features of a toy design are properly the subject of patent law and not subject to trade-mark protection. The facts of the case where that the Canadian company Megabloks made a building brick very similar to those produced and distributed for decades by the Danish manufacturer, Lego. In an attempt to halt the sale of the Mega Bloks bricks, Lego brought a passing off action on the basis that the Mega Bloks bricks infringed the (unregistered) trade-mark rights of Lego in the distinguishing guise of the bricks particularly the protruding knobs by which the bricks interlocked. The Court of Appeal upheld the decision of the Federal Court, Trial Division who dismissed Lego’s claim and held that due to the doctrine of functionality, the look of the Lego bricks could not be the subject of a valid trade-mark. Functionality is the proper subject matter of patents, not Trade Marks. The Federal Court of Appeal commented that Lego, through…

CANADIAN GOVERNMENT WINS BACK DOMAIN NAMES
Internet , Trade Mark / September 2003

TRADE MARK Internet The governments of Canada and Alberta have won disputes over registration of several official-sounding .ca domain names. In each case, the arbitrators ruled that the government has rights to the name and that the domains were registered in bad faith. The federal government won the rights to the domains www.governmentofcanada.ca, www.governementducanada.ca, www.canadiancustoms.ca and www.statscanada.ca among others. The government of Alberta won the rights to the domain www.albertagovernment.ca. In the case relating to the federal government claims, the arbitrators found that many of the domain names wereconfusingly similar to the names of government departments, even though they were not quite the same. The arbitrators found that the test is resemblance based on first impression and imperfect recollection. The registrant’s defence was that he had a legitimate interest in the domain names because he planned to use them to criticize the government and specific departments was rejected by the arbitrators, who noted that the domains had been used for different purposes and had been offered for sale by the registrant. In addition, the federal government had previously won similar disputes with the same registrant over .com and .org domain names. See: http://www.cira.ca/en/dpr-decisions/00011govt-of-canada-En.pdf or http://www.cira.ca/en/dpr-decisions/00012-albertagovernment-en.pdf For comments on US and Canadian IP law, see E-TIPS: e-tips@dww.com

SUPREME COURT OF CANADA TO REVIEW THE POSITION OF INTERNET SERVICE PROVIDERS (ISPs)
Copyright , Internet / May 2003

COPYRIGHT Internet The Supreme Court of Canada is to review the position of Internet Services Providers who facilitate the transmission of music on the internet. The case in question, known as the ‘Tariff 22 case’ began in 1995 when the Society of Composers, Authors and Publishers of Music in Canada (SOCAN) filed an application with the Copyright Board of Canada for the creation of a new royalty to cover music on the Internet. SOCAN argued that all parties involved in an Internet transmission – from the poster to the Internet service provider to the recipient – are liable for the communication and thus all bear some responsibility to pay an appropriate licence or royalty fee. Canadian Internet service providers (ISPs) led the opposition to the SOCAN proposal arguing that as mere intermediaries (much like phone companies) who should not be held liable for the content transmitted over their equipment. In 1999 the Copyright Board ruled that music transmitted over the Internet qualified as a public performance under the Copyright Act and therefore could be subject to a royalty. It also determined that ISPs could rely on a provision that exempts intermediaries from liability where they function strictly in an intermediary…