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Reference: Voltage Pictures LLC v John Doe and Jane Doe
Hyperlinking Crookes v Newton Facts: Crookes was suing Newton for hyperlinking articles about him which he claimed defamed him and other members of the green party. One link was “shallow” in that it went to a general repository whereas the other “deep” link directed the user to a specific article. Crookes claimed that by hyperlinking he was “publishing” the article (even though you had to click to get to the article) Issue: Is hyperlinking the same as publishing/communicating? Is a mere hyperlink enough to constitute reproduction/communicating? Ratio: No Analysis: Hyperlinking is not communicating of the original work, only a communication that the other work actually exists. When you click a hyperlink, you are likely to know that you are leaving the original site and going somewhere else (although if this is ambiguous this might give rise to a presumption of communication). If one was to link to another article but then espouse their support for it and repeat the defamatory content, then that also might be communication of that work. Mclachlin/Fish: “A mere reference without any adoption or endorsement remains… a content neutral reference” Infringement Boudreau v Lin Facts: Boudreau is suing Lin claiming that he took the paper that he has prepared for a university class and published it without his consent and withheld him from the credits deserving of the original author. Lin did make some small corrections and made some small suggestions but otherwise did not contribute to the paper. Lin contacted a professor Chang and 8 months later the paper came out with Lin and Chang as co-authors. The final blows had his paper had sold to the MBA students as a case note and Lin giving presenting the paper at a symposium. Issue: Which rights if any were infringed by Lin? Ratio: If not covered by fair dealing or not otherwise aggregated by employment contracts, the original author and owner of rights may pursue those who have infringed his copyright. Analysis: By facts alone, Lin did some slimy stuff that prevented Boudreau from fully being able to manipulate his own work both morally and economically. Morally, Boudreaus right to the integrity of his work and right to association were violated by Lin’s changes to his work and leaving his name off. By selling the book, the university took away his economic rights (which must be especially suspect considering Boudreau appealed everything and got shafted by the university who then sold his work without accrediting him). He did not assign any rights to Nortel and just straight up had his work appropriated and interfered with. Holding: Get damages Hager v ECW Press Facts: Barbara Hager is suing ECW for stealing 16 major passages from her book about Famous Canadian aboriginals peoples. The stolen element was her chapter on Shania Twain, which was appropriated with minor changes into a major book written by ECW about Shania Twain. No permission was ever sought to use her material and in fact was most likely avoided due to iterant costs. The sections were entirely paraphrased with similar sentence structure as evidenced by the comparison made in the case. Issue: How do we determine whether someones copyright has been infringed? When does infringement occur? Ratio: Infringement occurs when “the work is copied either exactly or by way of colourable imitation” “What will constitute a substantial taking must be assessed from both a quantitative and qualitative perspective” Analysis: By quantity, a substantial amount of Hagers work was appropriated (approx.. 1/3rd). Where exact quotes were reproduced, everything else was slightly paraphrased with slight alterations to words or structure. Holmes specifically stole her work to save himself time and money. Were this to be allowed, it would deter authors from wanting to create their own work as they know it could be taken at any time. Holmes claimed Shania’s quotes were not subject to copyright, but as Hager was the one to fixate them and solicit them, she became the owner of those words. Her work in getting them showed the necessary skill and judgement to be original. With her work being copyrightable and large portions taken, damages must follow. Holding: Infringement Secondary Infringement Milliken & Co v Interface Flooring Systems (Canada) Inc Fact: Milliken is claiming that the defendant infringed their copyright in the “mangrove design” of carpet that they installed at the Calgary international airport. The design was produced by a French artist but Milliken claims to have purchased the appropriate rights. They had evidence to that effect as well. Primary infringement was admitted (doing something only the copyright holder is allowed to do) but there was also a claim made against them for secondary infringement. One is deemed to be a secondary infringer if they sell any work which to their knowledge infringes copyright or would infringe copyright were it produced within Canada. Issue: Did the defendant have knowledge that the carpeting that it produced infringed the plaintiffs copyright? Ratio: Where someone has “knowledge” such that they notice facts that would suggest to the reasonable person that a breach of copyright was being committed, they will be deemed to be conducting secondary infringement.
Analysis: Milliken put constructive knowledge on Interface through their designer, Sue Madsen. By pointing out that she was aware of the copyright (she attended the convention where the design was first displayed in public) and was a former Milliken employee, the deal was almost sealed. Lastly, she was even informed by someone acting for a potential client that it was a “take off on the Milliken sample”. By subjecting her to the “directing mind” test, the courts decided she was sufficiently in control of the process so that her company was supporting her actions, hence generating liability. Holding: Due to finding of judge that copyright act wasn’t applicable, no secondary infringement found. (Was supposed to be protected under the Industrial Design Act) CCH Canadian Ltd v Law Society of Upper Canada Facts: The great library sold copies of some of CCH’s materials through their custom copying service (not related to normal photocopy usage as listed SUPRA). CCH was claiming they conducted secondary infringement. Issue: Did the Great Library infringe copyright by selling copies of their work Ratio: Secondary Infringement occurs when
Analysis: The courts found no primary infringement through fair dealing, as such the test is not satisfied at step 1 Holding: No secondary Infringement. Euro-Excellence Inc v Kraft Canada Inc Facts: Kraft Canada was the exclusive Canadian distributor of Cote d’or and Toblerone bars. Euro-Excellence imported and distributed these same bars that they had legally acquired outside of this exclusivity deal. In 2002, Kraft Belgium and Switzerland registered copyrights in the “Artistic” category to the design of the packaging of the chocolate bars and entered into licensing deals with Kraft Canada. Kraft Canada used the new copyrights and licensing to try to get EE to cease and desist important and distribution of the products to which the copyright was affixed. EE declined and litigation ensued. Kraft claims secondary infringement under 27.2.e Issue: Can copyright over design trademark be used to restrict importation under Section 27.2? Is it appropriate to try and use secondary infringement to regulate trade? What distinction is there between assignments and license?
Analysis: Secondary infringement normally requires primary infringement, however, section 27.2.e can give grant infringement in a hypothetical situation wherein it would infringe copyright had the thing been made in Canada. The courts point out that the parent companies would not infringe the copyright had the items been made in Canada. Arguments to the contrary were denied. Furthermore, it was decided that any license creates a residual effect wherein the license holder cannot sue the licensor for infringement.
Minority: You can hypothetically sue the owner of the copyright if they breach the term of the granted copyright. Note: Legislative history is used to differentiate assignee from licensee. Baigent v Random House Group Facts: Baigent was suing RHG for substantial copying in 6 of his chapters for The Da Vinci Code. Baigent claimed that key themes were stolen from their Holy Blood/Holy Grail books. Dan brown countered that there was no copying of anything that was copyright protected. Any ideas or historical facts were not expressions and thus not protectable Issue: Can historical facts or themes be subject to copyright protection? Ratio: No Analysis: The use of general ideas such as the knights Templar or history of Christendom were on too high of a level too high to be copyright protectable. While some of the themes crossed over, the main theme of Baigent’s book was never taken (because it did not have one). The arrangement of the facts and themes can be protected, but not the ideas and them themselves. The trial judge found that even though some copying was found, it was not of any substantial amount or attributable to the original copyrighted work.
Analysis: The judge points out that he does not believe the test to be a “hard edged” question of law. It is mostly a question of fact in infringement cases and should be approached as such, with no particular obligation to doctrinal concerns. Holding: Not sufficient copying to infringe copyright User’s Rights Defences Public Interest Defence R v James Lorimer and Company Limited Facts: The crown created a gigantic report about the “State of Competition in the Canadian Petroleum Industry”. The book came in 7 volumes, totaling $70. James Lorimer curated the book into a single, 626 volume for $15. Lorimer brought up fair dealing, violation of charter freedoms and public interest in his defense. Issue: Can the defense of public interest be used to allow infringement of copyright? If so, under what circumstances would it be allowed? Does it matter that it is crown copyright?
Is the definition of “audio reording medium” broad enough so that MP3 players are included? Ratio: Since a digital audio recording is not a “medium”, levies do not apply to it or to its memory Analysis: “No one has ever pretended tape recorders came within the definition” – Technological neutrality is at play here as even though there is memory embedded in the device, the device itself is not the thing doing the recording, it is merely taking items inside, similar to a tape player. Also, it doesn’t make sense that the memory card would become a medium just by being integrated into the device. The ultimate result of all of this is that if it was classified as an audio recording medium, private owners would be infringing every time they made a copy. The ordinary use of the device is as a recording device, not as a storage medium Holding: No fee allowed Common Carrier Exception SOCAN v CAIP Facts: ISP – Neutral conduit case. ISP’s cache information in order to be more efficient. Caching stores some information on your computer to avoid having to download it again. Issue: To what extent can ISP’s attract liability through their caching behaviours? What happens when the website hosts copyright infringing material? To what extent is the ISP responsible for the copyright infringing that end users are doing? Ratio: Even if the files are stored in the host servers memory, ISP’s are intermediaries and deemed not to be communicators or to be infringing on copyright. Creating the digital copy and storing it in your memory or its own memory is a necessity of the internet and does not constitute reproduction. Analysis: As stated before, ISP’s have a protection as long as they stay neutral as to the content or their manipulation thereof. If they change the information significantly or fail to reply to take down notices, they may be seen as a communicator and fall out of this exception. While providing the cached copy which is itself a copy of the original work could be seen as infringing in principle, there are definite public policy concerns that come into play as well as computing behaviours that need to be addressed. Caching might also not provide the full version but only key parts, or even only insignificant parts. Impossible to make blanket calls about caching Holding: Caching is not infringement, not seen as interference with the work. Freedom of Expression Compagnie Generale des Etablissements Michelin-Michelin & Cie v National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Facts: The CAW was attempting to unionize Michelin’s North American workers. In order to sway people, they distributed materials, some of which included the “Bibendum” and/or the Michelin logo. They never received permission to utilize Michelin’s IP. Michelin wants an injunction to prevent further use and damages for violation of their rights. CAW claims they did not infringe, or if they did, they have a constitutional defence under freedom of expression via section 2 of the charter. Issue: Can freedom of expression be a valid defence in the infringement of copyrights? Does the infringement on freedom of expression pass the Oakes test? Ratio: The copyright act which restricts peoples ability to utilize certain IP’s is a reasonable limit placed on peoples freedoms and the act itself creates a rational connection between the law and its objectives along with minimally impairing peoples rights. The proportion between the means and the objectives is also fair as the union had multiple ways to voice their displeasure/message without utilization of Michelin’s IP. Analysis: Restricting the union does not create an undue hardship and this is further evinced by the exhaustive and “well tailored” structure of the act itself. The restriction is not so harsh as to be considered anything other than a reasonable limit prescribed in a free and democratic society. Holding: Injunction granted Fair Dealing CCH v LSUC Facts: As part of their services, they offer the ability to take extracts from certain legal materials and send them out to legal researchers, lawyers etc. Issue: Does providing this service fall within the fair dealing defence of section 29 Does providing the service count as private study? How do you determine if a dealing is fair?
“Research must be given a large and liberal interpretation in order to ensure that end users rights are not unduly constrained” “Research need not be restricted to non-commercial or private contexts” Fairness is based on the PCAANE linden test. Analysis: Purpose, Character, Amount, Alternative, Nature and Effect are all questions of fact that must be assessed on a case by case basis. Also, it is not incumbent on the defendant to prove the specifics of each instance of possible infringement. They can make larger reference to the general dealings in how they approach the matter. The policy in place provided “reasonable safeguards” to ensure that the purpose was for research or private study. They weren’t doling out hundreds of copies but usually one copy for one specific legal question. They restricted access to over 5% of a work. There are few alternatives for local lawyers as well as non-local lawyers other than this service, especially as you are not allowed to loan out books. It is in the public interest to allow this kind of behaviour and there was no proven damage to their bottom line. Holding: Fair dealing Society of Composers, Authors and Music Publishers of Canada v Bell Canada Facts: Bell et Al (Apple, Rogers, Telus Etc) operate services for digitial downloading of music. All of them provide a “preview” which allows people to listen. SOCAN wanted to file a tariff for the years 1996-2006 but it was denied by the board as fair dealing. Issue: Should tariffs be associated with previews for music? Does it fall under fair dealing for research? Ratio: Whether something is for the purposes of research must be understood from the point of view of the potential researcher. This helps to strike the best balance between the public interest and the rights of owners. Analysis: This cases shows a large shift happening towards consumers rights and in giving them more access to works. Specifically, it is pointed out that the exercise of ownership rights should not limit users rights as well. Here the purpose is for research for trying to find music they like, the songs were short and of lesser quality than the normal versions, the amount of a 30 second work was considered a modest dealing, The amount must be based on the users dealing with the individual works themselves as well. Tying sheer quantity to products available on the internet would be ridiculous given how easy it is to access the previews. SOCAN claimed there were other research alternatives (marketing advertisings etc) but obviously the courts pointed out there is no better indicia of research on music than listening to music. The nature is to buy music and not to steal it and all of this had no effect on people selling as the previews didn’t compete with the original copies and were in fact designed to help sales. Holding: Fair dealing upheld. Alberta (Education) vs Access Copyright Facts: Teachers were often utilizing Access Copyrights works in their photocopying for their class. They had royalty agreements in place with these people appropriately until they needed to renegotiate in 2004. Both parties agreed that copies for the teachers or at the request of students were fair dealing, what both parties disputed was whether copies of works made at the teachers initiative that were given to students for their own self study constituted fair dealing. The board claimed that this category did fall under research but based on the factors didn’t constitute fair dealing Issue: Are copies provided to students for their own self study (but generated on the teachers intitiative) able to fall under fair dealing? Ratio: Fair dealing as a users right must be seen from the POV of the end user. Analysis: By looking at the case through the eyes of the teacher, the board made a big error. Each student did not have the ability to do their own research, they rely on the teacher. She provides them with their own individual copy for private research. The courts also had issues with logistics pertaining to alternatives (buy every student a book, yeah right) as well as the effect on the publishers. They claimed book sales have gone down over the last 30 years but could not tie it to actual loss of sales coming from this particular instance (Digital age most likely culprit). Quote: “This court in CCH stated that whether something is “fair” is a question of fact and a matter of impression” Reasonableness standard applied, because they misinterpreted CCH = unreasonable Minority: The board was reasonable. Just because their alternatives are expensive doesn’t mean they aren’t viable. Not unfair to relate it to CCH, teachers are not like lawyers in CCH asking for material, they are providing it on their own accord. Holding: Fair dealing Parody Compagnie Generale des Etablissements Michelin-Michelin & Cie v National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Facts: CAW claimed that their use of the Bibendum constituted a parody and as such should be allowed. At the time there was no parody provision in the CA, but their legal reasoning led them to believe that it should be allowed under “criticism” which was part of the CA at the time. Having Bibendum act in an aggressive or dangerous way towards the workers was seen as mocking his benign corporate image. Issue: (At the time) Does parody constitute criticism? Is the Canadian system open enough to allow new defenses in fair dealing? Ratio: Parody did not constitute criticism and the defences were exhaustive by means of statute Analysis: CAW started off on the wrong foot by not naming the author of the original work and giving them credit as per the fair dealing exception in the CA. CAW claimed that they didn’t need to have the name because the parody necessarily infers credit to the source, the judges didn’t buy it. If parody falls under criticism, then it must include the name just as criticism does. “If parliament had wanted to exempt parody as a new exception under the fair dealing provision, it would have done so” get bopped. Holding: Not fair use, parody not included Reference: Parody now included under section 29 in fair dealing since 2012 revisions. Productions Avanti Cine Inc v Favreau Facts: Favreau copied a popular show called “la petite vie” by making a show called “la petite vite”. The shows were substantially similar except Favreau included racy/pornographic elements into his show. Similarities extended to characters, costumes, appearances and décor. Favreau claimed his wholesale copying was ok due to it being under fair dealing for parody. Issue: What is the line that seperates parody from copying? Ratio: Parody normally entails the “humerous and often exaggerated imitation of anothers work for the purpose of criticism or comment. Analysis: While parody for commercial purposes is not expressly ruled out, the courts must look to the factual situation to see what the infringers true purpose was. Here, he was attempting to cash in on the good reputation of the show and acted opportunistically in his pursuit of this goal. Quote: “Simply adding pornographic activity as a story line for characters that have been appropriated from another writers work does not constitute parody or fair use in a material” Holding: infringing. Moral Rights Theberge v Galerie d’Art du Petite Champlain Inc Facts: Theberge was not truly concerned with his economic rights in some sense. He gave evidence that he was concerned about his moral rights as it pertained to how it might affect the market price of his works. He claimed the “copying” was a dilution of his work, especially without his signature on it, and it is affecting his reputation amongst family and friends who assume he is in on it. Issue: When are an artists moral rights engaged? What modifications can be done to a work that wont induce the moral rights of the author? Ratio: Moral rights are engaged when someone distorts, mutilates or otherwise modifies the work to the prejudice of the author’s honour or reputation. As such, any activity that does not do these things is considered within the purchasers rights. Analysis: Simply moving something from one substrate to another is not a reasonable way to consider an activity as being prejudiced against an authors honour. As concerned as he is that people think he has hatched a plot, the fact that he can tell them he is not involved or that he is suing should be proof enough that he isn’t in on it. The courts also make sure to delineate that moral rights and economic rights are separate and should have very little if any overlap Holding: Moral rights not infringed. Snow v The Eaton Centre Ltd et al Facts: Snow was the creator of a sculpture containing 60 geese in a special formation known as a flight stop. He sold it to the Eaton Centre. The geese had ribbons placed on them without Snow’s knowledge for the Christmas shopping season. Snow sued to have the ribbons removed. Issue: What test is used to determine whether moral rights have actually been infringed? Ratio: A Subjective/objective test must be used to determine if moral rights have been infringed. Analysis: Given Snow’s strong feelings and the opinions of experts, the subjective and objective criteria were met appropriately to show a moral violation. As per Section 28(2), modifications to a sculpture are also by default deemed to be prejudicial, thus placing the onus on the defendant. Otherwise the onus is on the plaintiff to show prejudice. Holding: Ribbons removed Prise de Parole Inc v Guerin, Editeur Ltee Facts: Guerin produced a book for schools that had collections of stories including a substantial part of the plaintiffs work. The copy of the work was sloppy and clumsy and as a result the original author did not want his name associated with it. That being said, he sued not only for the obvious infringement and damages stemming from substantial copying, but also against the butchering of his works pertaining to modification of work under moral rights Issue: Were his moral rights violated? Ratio: Even where substantial modifying occurs to the shock and approbation of the original author, without damage or prejudice to his reputation or honour, moral rights haven’t been infringed. Analysis: Although subjectively the plaintiff was distressed, he did not lose the ability to tour, write books, give speeches or receive appreciation from his fans as a result of the one time rip off of his book. Perhaps if economic damage was shown and he hadn’t pointed out that “I don’t think it did any harm” he might have had a chance to win. Holding: No moral infringement Legality of P2P Sharing BMG v John Does / Voltage Pictures v John Doe and Jane Doe Note: ISP’s may be compellted to divulge identities of file sharers. Always a balancing of property rights of copyright owners against privacy concerns of citizens. Directory: wp-content -> uploads -> gravity forms -> 1-7d6c8355b7f07846e8789d85deabdb60 -> 2016 gravity forms -> Earl E. Klein Jr gravity forms -> Narrative of how the entry meets the award criteria – July 28, 2016 gravity forms -> Revonda M. 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