I – Introduction a – La nature des droits intellectuels

4. Snow v Eaton Centre (1982)

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  The sculpture is a “work” within the meaning of the CA. S. 12(7) consideration involves a certain subjective element or judgment on the part of the author so long as it is reasonably arrived at.
  
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  Snow says his work is being made to look ridiculous (like dangling earrings from the Venus de Milo). This opinion is shared by other respected artists.
  

1. Ateliers Tango Argentin c Festival d’Espagne & d’Amérique Latine (1997)

If so, who is the title holder of the copyright?

If so, was there a violation of copyright by the Festival?

If so, who is responsible?

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  Art. 2 of the Act mentions photographs among protected artistic works
  
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  Such a work must be original and Argaez’s photo was: he’d put an enormous amount of work into it.
  
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  The question can be a challenging one with respect to photographs; however. Obviously, not just any casually taken photograph (of the Montreal Olympic stadium, for ex.) will make all other similar photos forgeries. It is the specific and personal choices made vis-à-vis the photo (place, angle, pose of subject, lighting, etc.) that make it worthy of protection. This photo was original as per art. 2 and 5 of the Act.
  
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  Argaez is the primary title holder of the copyright (art. 13(1)) which he temporarily ceded to Ateliers Tango. Ateliers can sue, no problem (art. 14(3)).
  
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  There was clearly a copyright violation here. Bueno had commissioned an exact copy of Argaez’s photograph, to the smallest detail.
  
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  For there to be a violation, however, a copy need not be identical. It is sufficient that there be a “colorable imitation” (art. 2), that a substantial portion of the original is copied. (art. 3(1)). Thus even the first photos taken by Bueno’s son constitute a violation of copyright.
  
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  The Festival has violated copyright as the legal entity that disseminated the forgeries
  
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  Bueno cannot hide behind the corporate veil. He commissioned the copies before the Festival was registered and masterminded the whole scam
  
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  The son participated in the violation and is also responsible.
  
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  The professional photographer is not saved by the fact of having acted in good faith. He was almost wilfully blind and should have known better. Bueno had only shown his a photocopy of the photograph – he should have inquired about it. He can, however, pursue Bueno in turn.
  

1. BMG Canada Inc et al v John Doe

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  What legal test should the Court appyl?
  
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  Have the plaintiffs met this test?
  
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  If an order is issued, what should be the scope and terms of the order?
  

Based on the idea that parties who become mixed up in the tortious acts of others have a duty to assist the party wronged by the tort by giving him information and disclosing the identity of the wrongdoers.

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  Involves considerations of public policy, which may support non-disclosure.
  
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  The test for granting equitable bill of discovery has the following criteria:
  

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  the applicant must establish a prima facie case against the defendant;
  
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  the person from whom discovery is sought must be more than a mere bystander;
  
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  the person from whom discovery is sought must be the only practical source of the information desired;
  
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  the person from whom discovery is sought must be reasonably compensated for the expenses of providing the information in addition to his legal costs, and
  
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  the public interests in favour of disclosure must outweigh any legitimate privacy concerns.
  

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  their affidavits are based largely on hearsay (information provided to the head of a group working to combat c/r infringement by his employees)
  
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  there is no evidence to connect the pseudonyms of users to the IP addresses that the ISPs could provide.
  
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  There is no evidence of c/r infringement and only evidence of: installing download/upload software; copying music files to shared directories; using peer-to-peer applications; and making files available for downloading (does not demonstrate reproduction of recordings, authorization of their reproduction, distribution of unauthorized copies, or possession of unauthorized copies). Placing personal copies in shared directories is not the same thing as distributing copies.
  
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  CCH is the precedent for authorization: no difference between having books and a photocopier in proximity and making a personal copy of a work available online: a person does not authorize c/r infringement merely by authorizing the useof equipment which could be used to infringe a c/r.
  

ISPs are not mere bystanders. They provide a service essential to the activity in question.

The Court does not have enough evidence to be able to say.

It is difficult for ISPs to associate the name and address of an account holder with an IP address at a given time. It involves significant corss checking of databases and would be costly.

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  It is agreed that users would normally expect that their IP address will not be disclosed.
  
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  c/r holders are entitled to enforce their rights but in this case the Court is not confident that forcing disclosure would produce reliable information.
  

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  “Communicate” should be interpreted according to its ordinary meaning and should not be limited by requiring that downloaded material be used immediately or that information be transferred in a form that humans can perceive.
  
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  This is consistent with the SCC's prior statements on communication: communication occurs when music is transmitted from the host server to the end user.
  
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  Communication must be to the public. In a case involving the tariff applicable to ringtones purchased and downloaded online, it was found that the terms of 3(1)(f) were fulfilled.
  
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  There is no material difference between streaming a file and downloading it in technical terms. The only difference is that streamed files are programmed to delete themselves after having been played. In any case, the provisions of the C/R Act are meant to be technologically neutral, so it would be perverse to find a legal difference between these two forms of acquisition.
  
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  Communication should not be giving a connotation which requires immediate use. Downloaders should not be able to escape c/r infringement and to do so at the expense of creators of musical works because of this false distinction.
  

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  There is an analogy to be drawn with video on demand.
  

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  The provisions of the C/R Act are meant to be technologically neutral.
  

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  Parliament has also amended the Act to address this: they have removed the word “radiocommunication” and replaced it with telecommunication in order to widen the net of communicative activities caught by s. 3(1)(f).
  
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  It would be countrary to how Parliament has expanded the definition of communication in the law to reduce that concept by requiring human perceptibility, and Canada has omitted to include such a requirement in the law despite its presence in NAFTA agreements.
  

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  It is flawed to evaluate communication by the time at which a file is viewed or played when all that matters is the transmission to the person using the file, which by its nature is communication.
  
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  C/r holders are entitled to dispose of each of the components of their c/r as they please. These components include rights to communicate, reproduce, performance, etc.
  

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  c/r is a bundle of sticks that can be separated out and put into commerce individually.
  

1. Euro‑Excellence Inc. c. Kraft Canada Inc., [2007] 3 R.C.S. 21

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  Bad Bastarache: going beyond what is authorized by the law when drawing distinction between c/r and its acessory elements; creates equitable doctrine of “legitimate economic interest”
  
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  Departure from settled principles of interpretation and of law. Contrary to legislative intent. Remedies provided by Copyright Act are exhaustive.
  
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  Poor use of Kirkbi: cannot be basis of doctrine for abuse of rights or copyright misuse. In Kirkbi, SCC said TM’s can't be used to address issues meant to be captured by patents.
  
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  S. 63(4)(b) of CR Act says TM and C/R can co-exist.
  
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  TM = dos not attempt to prevent competitive usage of a product but rather to distinguish them as to their source.
  
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  Agrees logos are covered by c/r.
  

The objective of 27(2)(e) is to prevent foreign holders of c/r from making a product abroad, covering it with c/r, and then selling it at low cost in Canada. This would negate the value of a c/r issued in Canada.

Pour avoir une oeuvre, il faut exister l'exercice du talent et du jugement d'un créateur.

Protection offert par le DDA peut uniquement s'appliquer aux intérêts économiques qui ne sont pas liés accessoirement à l'oeuvre protégé par le DDA.

Protection pour les intérêts économiques légitimes qui résulte du talent et jugement. Il faut séparé le DDA d'un bien qui porte une oeuvre protégée. Les gains qui viennent de la vente du bien sont à ne pas confondre avec les intérêts économiques légitimes du titulaire de DDA.

- oeuvre peut être accessoire à un bien en commerce

- cf marques de commerce qui servent à distinguer les produits

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  S. 27(e): forbids importing into Canada any copy of a work the production of which would constitute a violation of copyright if the copy had been produced in Canada by the person who produced it and if it had been imported into Canada under one of the acts targetted by 27(2)(a-c)
  
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  Protection accordé est limité à l'auteur en tant que l'auteur. L'espècese distingue des cas où l'oeuvre elle-même est mise en circulation.
  
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  Le test: Si un consomateur raisonnable qui effectue une opération commerciale ne croit pas que c'est l'oeuvre protégée par le droit d'auteur qu'il achète ou utilise, il est probable que l'oeuvre est simplement un élément accessoire du bien de consommation visé par l'opération.
  

Pas nécessaire de décided sur l'abus de droits.

Oeuvres sont simples éléments accessoires des tablettes de chocolat. Oeuvre n'est pas important pour l'action que fait le consommateur. Oeuvre ne sert qu'à identigier la provenance de produit.

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  Il n'y a aucune différence entre vendue et mise en circulation. Le terme vente doit être interprété dans une sens large.
  

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  Établir une exception pour des logos pour le motif qu'ils sont accessores va créer l'incertitude
  
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  This is a very statutory part of the law and protections offered by the legislature cannot be decreased by the courts. SCC has recognized that principles outside of the legislative texts, notably in civil liability, don't apply.
  
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  Licence confère droit même contre titulaire: language of Act is clear - allows licensees to exclude even holders of copyrights in s. 2.7, for example. Licenses allow for total or partial cession of rights, see s. 13(7) para 115.
  

It is an infringement of copyright for any person to

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  (a) sell or rent out,
  
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  (b) distribute to such an extent as to affect prejudicially the owner of the copyright,
  
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  (c) by way of trade distribute, expose or offer for sale or rental, or exhibit in public,
  
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  (d) possess for the purpose of doing anything referred to in paragraphs (a) to (c), or
  
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  (e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c),
  

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 infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.

6. Canadian Private Copying Collective v Canadian Storage Media Alliance (2004)

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  The Copyright Board sets levies on blank audio recording media (like blank CDs). The Collective collects levies on the sale of these media and distributes them to companies which manage musical acts.
  
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  The Collective asked the Board to set a levy on MP3 players. It said yes, but it specified that the devices themselves were not within the statutory definition (s. 79 C/RA) of audio recording media. It instead said that the memory within MP3 players is within the definition. This makes it leviable.
  
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  Canadian Storage represents manufacturers and importers of blank media. It challenges the Board's decision (this is a case of judicial review)
  

1. 
   Is the permanently embedded or non-removable memory, incorporated into an MP3 player, an “audio recording medium” leviable under the C/RA?
   
2. 
   If the answer to (1) is yes, was the levy set by the Board within the boundaries of fairness?
   

1. 
   No
   
2. 
   Unecessary to answer
   

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  S. 79. Audio recording medium = “a recording medium, regardles of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium.”
  
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    If a medium is blank and w/in this deinition, it can be levied.
    
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  The Board found that:
  
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    the memory in the devices, and the devices themselves, are used ordinarly by consumers
    
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    an audio recording medium (i.e. memory) incorporated into another device (ie an MP3 player) remains a medium.
    
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      This conclusion is supported by the “breadth” of s. 79's language, namely that it says “regardless of material form”
      
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  The FCA disagress:
  
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    the Board is not entitled to ignore the device in which memory is found. The device itself is not a recording medium and cannot be levied.
    
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    the Board's reasoning was flawed because it also recognized that the memory could not, considered independently, allow for a levy to be established. The Board was in de facto setting a levy on the deviceand drawing a false distinction between MP3 players and their memory
    
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      it is hard to understand how memory permanently incorporated into a device retains a distinct character
      
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      the memory's form does not change when it is in an MP3 player. Relying on the “regardless of form language” does not help avoid the oddity that this creates: if memory in MP3 players was leviable, then MP3 memory on other devices should also be leviable. (compare to the fact that the memory on a CD is not leviable. The CD itself is)
      
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  Analogy: Parliament chose to levy tapes but not tape recorders. MP3 players are like tape recorders.
  
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    MP3 players are not “media” like tapes and CDs. This means they are outside the s. 79 definition of what media are leviable.
    
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  Overall, the Board pursued an interpretation that only Parliament should specify as the law in Canada.