Copyright Law

New fee to play recorded music at parties

Weddings are expensive.  Thanks to a recent decision by the Copyright Board, it’s going to become a little bit more expensive starting this summer.

The Copyright Board of Canada has recently allowed new tariffs to be collected for playing recorded music at events such as weddings, parades, karaoke bars, and fairs. The cost varies depending on how many people attend the event, the type of event, and interestingly, would double if people are dancing at the event. For example, a wedding where the DJ plays a song from a CD with less than 100 attendees and at least one attendee dancing would cost an extra $18.50 per day, and a parade where recorded music is played on at least one float must pay at least an extra $32.55 per day.

It’ll be up to the event organizers to self-report and pay the royalty on their own initiative. If you have a wedding this summer, be sure to ask your event organizer whether or not these new tariffs apply to you.

Colbert and Stewart: Copyright fair dealing

Have you ever wondered how Stephen Colbert or Jon Stewart can reproduce news clips without being sued for copyright infringement?

Just because something is under copyright doesn’t mean it cannot be copied or used by someone other than the author. Colbert and Stewart, as pundits who report on current events, criticize and perform parodies and satire, can rightly claim “fair use” under US copyright law in their use of news clips on their shows to avoid copyright infringement.

Similar to fair use in the US, under the fair dealing provisions of the Canadian Copyright Act, the Canadian general public can also use a copyrighted work without infringing copyright.

In general, fair dealing for the purpose of research, private study, criticism or review, or news reporting does not infringe copyright.  As long as the reproduction was “fair”, there is no copyright infringement.

The second step, whether the dealing is fair, depends on the facts of each case.  In CCH v. LSUC, 2004 SCC 13, the Supreme Court of Canada set out six non-exhaustive factors to determine whether a dealing is “fair”:

  1. the purpose of the dealing;
  2. the character of the dealing;
  3. the amount of the dealing;
  4. alternatives to the dealing;
  5. the nature of the work; and
  6. the effect of the dealing on the work.

These “fairness” factors mean that, for example, a wholesale copying of an entire show would probably not be considered “fair”, even if it was for the purpose of news reporting or criticism. But it does allow for short reproductions of clips a few seconds long, just like the clips reproduced on The Daily Show or the Colbert Report.

 

Robinson Sucroë and copyright infringement

For the last 16 years, Claude Robinson has been fighting television giant Cinar in Quebec court, alleging that Robinson Sucroë, an animated television series from Quebec, was plagiarized from Robinson Curiosité, an earlier work by Claude Robinson.

In 2009, the Quebec Superior Court agreed with Claude Robinson and found Cinar guilty of copyright infringement. You can read all about the similarities the court found, in addition to comparative screenshots from Robinson Curiosité and Robinson Sucroë in the link above.

Cinar was ordered to pay more than $5.2 million in damages, including $1 million in punitive damages.

Cinar appealed. In 2011, the Quebec Court of Appeal held that Cinar did indeed infringe Robinson’s copyright, but reduced the damages to $2.7 million, including $150,000 in punitive damages.

Yesterday, the Supreme Court of Canada agreed to hear the case. Of particular interest here is the issue of the calculation of damages and punitive damages in relation to copyright infringement. Win or lose, I hope Claude Robinson’s 16 year ordeal will be resolved soon.

BC court confirms website terms of use enforceable as legal contracts

In Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196, the BC Court held that Rogers infringed Century 21’s copyright and terms of use by scraping Century 21’s real estate listings from its website and incorporating the listings into the real estate search engine Zoocasa.

Starting in 2008, Zoocasa copied photos, property listings, and pricing from Century 21’s website and provided hyperlinks that directed a user to specific pages of the Century 21 Website that contained the property listings.  Despite letters from Century 21, Zoocasa chose not to stop scraping until early 2010, nearly 2 and a half years after Century 21 first advised Zoocasa they did not consent to Zoocasa’s activities and advised them of the Century 21 Terms of Use and Zoocasa’s breach of these terms.

The court considered the enforceability of website terms of use as a contract, and explored various analogous software licences and contracts created over the Internet such as shrink wrap agreements, click wrap agreements, and browse wrap agreements.  The court confirms that website terms of use are enforceable as legal contracts at para 119:

The act of browsing past the initial page of the website or searching the site is conduct indicating agreement with the Terms of Use if those terms are provided with sufficient notice, are available for review prior to acceptance, and clearly state that proceeding further is acceptance of the terms.

In addition, the court confirms that liability is not avoided by automating the website scraping as the scraping program must initially be set up manually.

Changes to rules regarding .ca domain disputes

The Canadian Internet Registration Authority (CIRA) recently announced changes to the CIRA Domain Name Dispute Resolution Policy (CDRP). The CDRP, which governs disputes over .ca domain names alleged to be registered in bad faith, has been in effect since 2002.

Some of the changes include:

  • Bad Faith “Legitimate Interest Factors” are now Non-Exhaustive.
  • Bad Faith Factor of Commercial Gain Added.
  • Electronic Filing of complaints and respondent submissions.
  • Separation of Filing Fees from Panellist Fees.
    • “Previously, Complainants were required to pay the entire $4,000 filing fee upon filing a CDRP complaint. Under the revised CDRP Rules, Complainants are now only required to pay the Dispute Resolution Provider fee of $1,000 to file a complaint.”

The revised CDRP rules come into effect August 22, 2011.

43.849382-79.35245

SCC will hear copyright in education case

Under the Copyright Act, anyone can make non-infringing use of copyrighted material provided the use is made for an allowed purpose and is fair.  This is known as fair dealing.  Allowed purposes under the Copyright Act include “research or private study” and “criticism or review”.

Late last year, the Federal Court of Appeal held in Alberta (Education) v. Access Copyright, 2010 FCA 198, that the tribunal “Access Copyright” made no error when it determined that the photocopying of excerpts from textbooks for use in classroom instruction for students in kindergarten to grade 12 was not fair dealing.  This is a major win for copyright holders as it clarified their scope of copyright in the context of education.

Today, the Supreme Court of Canada announced that it will hear an appeal of the Federal Court of Appeal’s decision in Alberta (Education) v. Access Copyright.  The outcome of this appeal, in addition to the landmark case of CCH v. LSUC, 2004 SCC 13, could clarify the law of copyright in Canada for years to come.

Be sure to question candidates on copyright reform

Update: The Harper Government fell in a non-confidence vote on March 25, 2011 at 2:20pm.

Later this week, the 40th Parliament will be dissolved and an election will be called.  Opposition parties are anxious to bring down the Conservative minority government, whether by voting against the budget or by a non-confidence vote for being in contempt of Parliament.

When Parliament is dissolved, every bill that has yet to be passed, including the current copyright reform bill C-32, An Act to amend the Copyright Act, will “die on the order paper”.  It will be up to the next Parliament to introduce a copyright reform bill, if they choose to do so.

This also means that copyright should become an election issue.  Whether or not you’re satisfied with bill C-32, now is the time to exercise your democratic muscle and express any concerns you may have with your (soon to be campaigning) Member of Parliament.  Be sure to question all of the candidates who are running in your riding about their views on copyright reform, digital locks and fair dealing, and compare their responses.  If you’re not satisfied with their answer, don’t vote for them.

(Interestingly, this also marks the third time that a copyright reform bill has died because of an election being called: Bill C-61 died in 2008 under the Harper minority government, and Bill C-60 died in 2005 under the Martin minority government).