Tag Archives: copyright

the practical complexities of music copyrights

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For anyone interested in an overview of copyright as it applies to music and music videos, there is a good, easy to read article on the law law land blog. It is based on US copyright law, and while some of the details are a bit different in Canada, the gist is the same. 

The article uses the Rebecca Black Friday video to put the law in context. 

And for the record, I’m posting this because it is a good article on what can be a confusing subject – not because it has anything to do with that mind-numbing trainwreck of a video.

Changes stretch from devices to laws

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For the London Free Press – January 10, 2011

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The year 2010 was a significant one for technological innovation. We saw the continued advancement of the smart phone, the rise of the touch screen tablet in the guise of the iPad and Samsung Galaxy Tab, and the introduction of electric cars that plug into a standard household socket in the Chevrolet Volt and Nissan Leaf.

So what can we expect in 2011? Here are a few things that might be worth keeping an eye on:

Windows Phone 7: Windows Phone 7 is not a physical device like the iPhone but rather an operating system that will be offered on a variety of phones built by various manufacturers. Its features and creative take on the user interface mean Windows Phone 7 will be a strong competitor in 2011.

But with the level of competition in the smart phone marketplace, Windows Phone 7 faces an uphill battle. Its adoption may suffer from a lack of available applications, especially compared to Apple’s app store, which has a significant head start in app volume.

Windows Phone 7 sales in Canada will also probably be slowed by carrier lock issues, as most consumers have to wait out the three-year contract with their existing phone before they can upgrade. That is a serious impediment to phone sales in general, compared to the two-year term that is normal in most countries.

Kinect: Kinect is a controller for the Xbox 360 video game console. The Kinect allows users to control and interact with the Xbox 360 without using a handheld controller. Essentially players operate the console and play games by using hand gestures and body motions.

The Kinect is selling extremely well. In fact it has become so popular that it was hacked immediately following its release to enable it to be used with PCs and other devices.

Look for the Kinect to receive official support from Microsoft for use with PCs by year end. Controlling computers this way may lead to some interesting applications.

Anti Spam Law: Bill C-28, the Fighting Internet and Wireless Spam Act, has just been passed. It will come into effect sometime this year after its regulations are drafted.

The implications of this legislation for a typical business or organization are not fully clear. The language of the legislation has the possibility to affect how typical businesses communicate, as things that we may not consider to be spam might get caught by the act. Stay tuned for more detailed commentary on this as the year progresses.

Copyright Reform Bill: Bill C-32, the Copyright Modernization Act, is the latest attempt to update the Copyright Act. Controversial elements include digital lock provisions that will allow publishers to trump user rights.

It is likely this bill will become law, unlike the several failed attempts over the past several years.

One certain thing about copyright reform is that the details will make some people happy and will disappoint others, depending on whether one is a consumer or producer of content.

From spam to copyright, lots of new laws on the way

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For the London Free Press – December 13, 2010

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Proposed legislation could have major implications for businesses, consumers

Development and innovation of technology inevitably breeds new laws to regulate that technology. For lawyers practising Information Technology law, there is a considerable amount of potential new law to digest.

For example, Bill C-28, the Fighting Internet and Wireless Spam Act, brings in several anti-spam measures. While this is welcome by most people, the language may take in things we may not consider to be spam and affect how typical businesses communicate. Since the penalties are significant, we need to take a close look at this act before it takes effect to understand what it will mean for a typical business or organization.

Bill C-29 would make several changes to the Personal Information Protection and Electronic Documents Act. Most of these were expected – and welcome – because they address issues arising from the current law.

But there are new parts that could use clarification. Language that tries to clarify what constitutes “lawful authority” to release information to law enforcement when requested doesn’t make clear what proof or threshold of proof is required. It also contains language requiring that the privacy commissioner and affected individuals be notified of breaches in some circumstances. The language has threshold tests, which on the surface are not as clear as they might be. If this language stays, it may take a decision by the privacy commissioner and/or a court to clarify the threshold.

Bill C-32, the Copyright Modernization Act, is the latest of several attempts to amend the Copyright Act. Controversial elements include digital lock provisions that would let publishers trump user rights. Much has been written about this, including a book entitled From Radical Extremism to Balanced Copyright: Canadian Copyright and the Digital Agenda, written by several copyright experts.

Bill C-51, which would amend the Criminal Code, Competition Act and Mutual Legal Assistance in Criminal Matters Act a.k.a. Investigative Powers for the 21st Century Act, is the latest effort to give law enforcement more access to electronic communications.

But what proponents call “lawful access” bills, critics deride as “awful access” bills. They question whether making things easier for law enforcement is worth the significant erosion in privacy and extra costs to Internet service providers.

These bills may have far-reaching practical implications, not only for many businesses and organizations, but also for consumers.

Plethora of Pending IT Legislation

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That’s the title of my Slaw post for today.  It reads as follows.

Those who practice in the IT area have a lot of potential new law to digest.  The Federal government has several bills in various stages that will affect many businesses and organizations, and all of us as consumers.  These bills have been mentioned on Slaw, but I thought it was worthwhile listing them all in one place. 

Bill C-28    Fighting Internet and Wireless Spam Act.  

This bill brings in several anti-spam measures.  While this is welcome by most people, the language has the possibility to affect how typical businesses communicate.  Things that we may not consider to be spam might get caught by the act.  Since the penalties are significant, we will have to take a close look at this before it is in force to understand what it means for a typical business or organization. 

Bill C-29     An Act to amend the Personal Information Protection and Electronic Documents Act

This would make several amendments to PIPEDA.  Most of the amendments were expected, and are welcome as they address issues that have arisen from the current legislation.  There are a couple of new parts that could use some clarity, though.  Language that attempts to clarify what “lawful authority” is that allows one to release information to law enforcement doesn’t really seem to clarify what the threshold of proof is, or what to ask for.  It also contains language that requires notification of breaches in certain circumstances to both the privacy commissioner and the affected individuals.  The language has threshold tests – which on the surface are not as clear as they might be.   If this language stays, it may take a privacy commissioner decision and/or court decision to clarify the threshold.  The best source for more information is David Fraser’s blog

Bill C-32     Copyright Modernization Act.

This is the latest of several attempts over the years to amend the Copyright Act.  Controversial elements include digital lock provisions that will allow publishers to trump user rights.  There has been a lot written about this, including a book entitled From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda written by several copyright experts. The best source for more information about the bill is Michael Geist’s blog.

Bill C-51     An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act aka Investigative Powers for the 21st Century Act. 

There also appears to be at least one companion bill, C-52.  This is the latest incarnation of what has been dubbed a “lawful access” bill.   The bill essentially tries to give law enforcement more access to electronic communications.    Critics refer to the bills as “awful access”, and point to the erosion of privacy and the costs ISP’s will need to spend.  They also question the practical effectiveness of the measures.   This bill is hot off the press, and I have not had time to look at it – but in general I fall into the ”awful access” camp.  Expect more commentary on this from both Michael and David.

While copyright collectives help, royalties issue muddy

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For the London Free Press – August 16, 2010

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[UPDATE: Also take a look at this related Techdirt post entitled The Insanity Of Music Licensing: In One Single Graphic ]

Radio royalties are complex.

On July 9, 2010, the Copyright Board of Canada issued its long-awaited Commercial Radio tariff and reasons. It dealt with payments radio stations must pay to copyright collectives to obtain rights to play music.

The rights to use most music flows through copyright collectives that collect royalties from broadcasters and other users, so they don’t have to deal with rights holders individually. The collectives in turn pay the royalties to the rights holders.

Even with the collectives taking the place of rights holders, the various copyright payments broadcasters must pay for music are complex. Radio stations must pay for six different rights.

The board stated:

A Canadian radio station that broadcasts recorded music off a server reproduces and communicates musical works, performers’ performances and sound recordings. Four copyrights and two remuneration rights must be accounted for.

The board estimates that commercial radio stations will pay a total of $85 million annually in royalties under the new rates, an increase of $13 million over previous rates.

Of the $85 million in royalties, the board estimates $51 million will go to SOCAN, $13 million to Re:Sound, $11 million to CSI, $10 million to AVLA/SOPROQ and $200,000 to ArtistI.

SOCAN administers the exclusive right of the owner of the copyright in a musical work to communicate it to the public by telecommunication for most composers, authors, and publishers.

The second and third rights are the remuneration rights that performers and record companies enjoy when a recording of a musical work is communicated to the public by telecommunication. Re:Sound administers these rights for most eligible performers and makers.

The fourth set of rights is the exclusive right to reproduce a musical work. CSI, SODRAC and CMRRA administer these rights.

The fifth set of rights is the exclusive right to reproduce a sound recording. AVLA and SOPROQ act for most record producers, record companies and artists.

The sixth set of rights is the exclusive right in a performer’s performance to reproduce the performance for a purpose other than the purpose for which authorization was given. ArtistI, ACTRA PRS, AFM Canada Artisl, and others administer this right.

The estimated $85 million in royalties payable by radio broadcasters does not include instances where collectives have not filed tariffs. As a result, the $85 million estimate may be understating the monies payable by radio broadcasters.

The Commercial Radio tariff is a consolidation of several proposed tariffs filed in 2007 and 2008. If the board’s decision ends up being judicially reviewed by the Federal Court of Appeal, a final decision will likely be over a year away.

Copyright bill c-32, digital locks, and US MGE v GE decision

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One of the most controversial aspects of the copyright reform bill is the digital lock provisions, which make it unlawful to break digital locks, even if it is only to exercise a right copyright law actually gives you.

A new US case has limited the effect of the US DMCA digital lock provisions, saying that they don’t prevent one from braking a digital lock to view or use a work.   As Michael Geist points out, that makes the Canadian proposal much tougher than the existing US provisions.

Thomson accused of breaching copyright

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For the London Free Press – July 5, 2010

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Canadian lawyers are suing for $50 million, claiming the company is making legal documents available for a fee without the authors’ approval

A class action was filed on May 25 against Thomson Reuters Corp. and Thomson Reuters Canada Ltd. on behalf of a class of Canadian lawyers and law firms across Canada to the tune of $50 million.

The lawsuit alleges that Thomson breaches copyright laws by making lawyer-created legal documents available for a fee and subscription without permission from, or compensation to, the authors of the documents.

How do they do this? It is alleged that Thomson copies publicly available court filings. That includes legal documents such as facta, pleadings, affidavits and notices of motion, prepared by lawyers. It then makes them available for download via its “Litigator” service.

The user subscribes to the service and pays a fee, then is permitted to copy and edit the documents. At no time are the authors of these documents informed that their documents are copied, sold, or reproduced.

Of notable offence to the plaintiffs is the fact that the copies available for download are branded with a statement that asserts Thomson’s copyright over the documents: “[copy] Thomson Reuters Canada Limited or its Licensors. All rights reserved.”

Lawyers are perhaps the original mash-up artists when it comes to legal documents of all kinds. All lawyers copy parts from similar documents other lawyers create and use – whether they are contracts or court documents. It is one way lawyers have always learned and documents have been improved. Lawyers have not for the most part considered copyright issues when it comes to their own documents.

The question is whether the service Thomson provides is different and whether it crosses a copyright line.

The statement of claim issued by the plaintiffs pleads that the lawyers are the owners of copyright in these legal materials and that Thomson has infringed the Copyright Act by its actions.

More specifically, the claim states:

“The defendants took more than 50,000 legal documents created by members of the proposed class, removed them from court files and copied them, scanned them into a downloadable format, posted them in their database, and then made them available to subscribers for a fee.”

Counsel for the plaintiffs are seeking to have the lawsuit certified as a class action.

If the case is certified by the court, all persons who fit the class definition will automatically be included in the class unless they choose to opt out.

Among the many claims made, the plaintiffs have asked for $50 million in general damages for the class, disgorgement of profits made by Thomson from the infringement, $1 million in punitive damages, litigation costs, and a permanent injunction from using the documents.

Thomson of course has a different viewpoint, and will defend the action.

The case will be decided on the subtleties of copyright law. But it boils down to this.

Though the sharing of legal documents has always been an accepted and necessary way of practising law, does doing it in a commercial way such as Thomson does cross a legal line?

Copyright bill expected today

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That’s the title of my Slaw post for today.   It reads as follows.

The new copyright bill is expected today.  There has been much anticipation about what it might contain.  That is understandable given that several failed and controversial attempts have been made to pass a reform bill over the last few years.  And that there were extensive hearings around the prior bill last summer that attracted a significant amount of commentary.  And that digital media is considered by many (e.g. the Canada 3.0 initiative) to be a crucial part of the economic future of Canada.

The anti-spam and privacy bills introduced last week are important bills that have effect on business and individuals alike. But the copyright bill fundamentally affects how every Canadian consumes media. 

Roughly speaking, copyright interests line up in two camps.

First, the entertainment industry, which wants tight controls on copying, including things like digital locks and notice and takedown provisions.

Second, consumers who want less control by media providers, and broader fair dealing rights.

It will be interesting to see what the bill looks like, what the reactions will be, and what changes may result from that reaction.  Fundamentally it is about balancing the various interests to give the right amount of protection to creators, while at the same time giving users reasonable rights to do the things we are accustomed to in this century, such as time shifting, format shifting, and perhaps downloading.  Clarity is important, as is language that doesn’t antiquate itself by tying it to specific technologies.

My message today is that this bill is important, and worthy of close, thoughtful scrutiny and discussion.

Ethics of downloading something you’ve already paid for – Techdirt

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Techdirt has a post that’s worth a read that talks about a debate sparked by the NY Times and Computerworld about the ethics of downloading something you have already paid for.  Its an issue worth considering, especially in light of an expected new copyright reform bill in Canada.   It ties into issues about format shifting and whether copying is theft when it doesn’t deprive the owner of what they have.

isoHunt operator vows copyright ruling appeal

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For the London Free Press – April 19, 2010

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n December 2009, isoHunt, a BitTorrent and peer-to-peer search engine, was found liable by a U.S. District Court judge for inducing copyright infringement. The operator of the isoHunt website says he will appeal.

IsoHunt was founded by Canadian Gary Fung in January 2003. According to Wikipedia, thousands of torrents are added to and deleted from the website each day. Users of the website perform more than 40 million unique searches each month.

The isoHunt website is a file search engine, but according to its creator, it does not induce copyright infringement. This distinction is crucial because over the last few years, a number of peer-to-peer service companies have been shut down because they were deemed to have induced copyright infringement.

These players include Napster, shut down in 2001, Grokster and Morpheus, shut down in 2005, and TorrentSpy, shut down in 2008.

BitTorrent websites allow users to download files of any kind directly from the computers of other users. Fung says the isoHunt website is similar to a search engine, such as Google, as the website itself does not store any contents and the files are not downloaded from the servers of the websites, and thus should not be liable for inducing copyright infringement.

The U.S. District Court said Fung had solicited infringement of copyrighted files by the way he has designed his website and by comments he made in interviews and online. For example, the isoHunt website allows users to access the top searches or the top files by category. The website also links users to websites that have torrent files or that invite users to upload copyrighted files. The judge felt Fung was aware of the copyright infringement and actively induced the infringement.

More recently, Judge Stephen Wilson of the U.S. District Court in Los Angeles ordered isoHunt to remove all infringing content from its website.

“It is axiomatic that the availability of free infringing copies of the plaintiffs’ work through defendants’ websites irreparably undermines the growing legitimate market for consumers to purchase access to the same works,” Judge Wilson said.

Fung said Wilson’s injunction “amounts to nothing less than taking down our search engine . . . We’re discussing the mechanics, the process that is reasonable for an injunction. We’re still trying to hope that the judge will do the right thing.”

IsoHunt has also taken the initiative and sued the Canadian Recording Industry Association (CRIA) to get a court ruling regarding the legality of the website. This came before the Supreme Court of British Columbia in March 2009 for a summary judgment, but the court ordered the matter proceed to trial.

The line where someone becomes liable for a copyright infringement of another is not clear. U.S. courts have found some peer-to-peer service companies liable for providing tools that were deemed to be intended to be used for unlawful copying. But others have created services that essentially allow users to do the same thing but in a way that avoids liability for copyright infringement