Copyright, Intellectual Property

Protection and the Future of

Barry B. Sookman
McCarthy Tétrault LLP Thursday, February 11, 2010

[email protected]
416-601-7949
1038251
The Objectives for Copyright in the Internet
Age
Copyright should
• foster incentives to develop creative products
• attract investment to Canada
• stimulate innovative business models
• produce jobs for Canadians
• prevent free riding
• record and preserve Canadians’ cultural heritage and identity,
and
• stimulate broad dissemination and uses of works by the public.

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How to Develop Policies for Digital Copyrights
• The Copyright Act is the legal infrastructure that supports the
creative industries. The rules must be clear, predictable and
fair.
• Advantages of solving global problems with global harmonized
solutions e.g. WIPO Treaties.
• We can learn from our trading partners e.g., laws that work,
public policy analysis of problems, and approaches to solutions.

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How Our Trading Partners Approach
Copyright Reform
UK Minister for Digital Britain, Stephen Timms, January 21, 2010
“Nobody here needs any reminder from me about the importance of
finding answers to the problem of online copyright infringement.
Technological developments that have generated so many new markets,
new platforms for content and exciting channels for creative expression
have also overturned traditional business models. They’ve made content
freely available to people who love what they’re getting but aren’t keen
to pay for it.
Copyright infringement has been around for a long time. But in this
digital age, it’s on an altogether different scale. And it is costing the
creative industries hundreds of millions of pounds every year.”
Government has to help in finding a solution. And it requires legislation.”

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How Our Trading Partners Approach
Copyright Reform
U.K. Consultation Document on Legislation to Address
Illicit P2P File-Sharing, June 16, 2009.
“But this is not just about taking action against
consumers. Most consumers, except the minority of
the anarchic or those who believe in ‘freedom to’
without its counterbalancing ‘freedom from’, and
who believe in unsupported rights without
countervailing duties, would prefer to behave
lawfully if they can do so practically and with a sense
of equity.”

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How Our Trading Partners Approach
Copyright Reform
• New Zealand Cabinet Paper: Illegal Peer-To-Peer file sharing
December 14, 2009
• “Strong IP rights create an incentive to invest in the development
of new and more innovative products since it permits individuals
to capture the gains from the new products it creates.”
• “A lot of individuals consider that sharing and downloading files is
harmless, but it impacts on creative industries, the New Zealand
economy and the reputation of New Zealand with other
countries.”
• “New Zealand will need to ensure its regulations are on a par with
its trading partners so that it can access the latest technology and
avoid potentially damaging trade disputes.”

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How Our Trading Partners Approach
Copyright Reform
France, Culture Minister Frederic Mitterrand:
"Artists will remember that we had the political
courage to finally break the laissez-faire attitude,
and to protect their rights from those who want to
turn the Internet into a ground for their libertarian
utopia”. Revised French download law passes lower
house, Reuters, Sept. 15, 2009.

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What Our Trading Partners Think About IP
President Obama during a town hall meeting in Ohio January 22, 2010.
“Look, our competitive advantage in the world is going to be people like
this who are using their minds to create new products, new services. But
that only helps us and helps you build a multibillion-dollar company if
somebody can’t just steal that idea and suddenly start making it…
And one of the problems that we have had is insufficient protection for
intellectual property rights. That’s true in China; it’s true for everything
from bootleg DVDs to very sophisticated software. And there’s nothing
wrong with other people using our technologies. We just want to make
sure that it’s licensed and you’re getting paid.”

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Industry Product EXAMPLES OF TECHNOLOGICALLY INNOVATIVE ONLINE OFFERINGS
Music Portable Music Players Zune Marketplace, iTunes
Ringtones iTunes
Digital Music Download Wal-Mart Music Downloads, Spotify, Rhapsody
Film TV Shows •Sites offering on-demand catch-up on television shows whether by streaming, rental and/or download-to-own include ABC,
AOL, Amazon, Apple, Bravo, Cartoon Network, CBS, CinemaNow, Comedy Central, CW, Discovery, Disney, Fancast, Fox,
HBO, Hulu, Joost, Lifetime, MSN, MTV, NBC, PBS Kids, South Park Studios, Spike TV, TBS, TNT, TV.com, TVLand,
USA, Veoh, VH1, Yahoo, Zune and more.
•All of the major motion picture studios distribute full-length films and television shows directly to consumer mobile devices
through the major mobile operators (e.g. AT&T’s Mobile TV, Sprint TV, Verizon’s V Cast Mobile TV)

Movies •Distributing Full-Length, High Quality Video Content Online through an Array of Services: There are more than 300
websites around the world now legitimately providing studios’ high quality, video on demand content online to consumers.
These sites cater to every manner of consumer viewing including ad-supported viewing, rental viewing, download-to-own
purchase, and subscription viewing.
•Rental and download-to-own films on Apple’s iTunes; ad-supported streaming of films on movie studio web sites, Hulu and
Jaman
•Providing Consumers With Digital Copies with Packaged Discs: (DVDs and Blu-rays): Major entertainment studios including
Walt Disney Pictures, Fox Entertainment Group, Lionsgate, Sony, and Warner Bros. Entertainment are including with new
DVDs and Blu-Ray discs a transferable or downloadable digital copy for consumers to use on computers and portable devices.
•Providing Rich Digital and Online Features on Next Generation Home Entertainment Content: BD-Live compatible titles are
interactive and include special online features such as extra downloadable content, online bonus features and live transactions.
Some examples of features include messaging other people through your television, online trivia games, and embedding a
personalized video into a scene in a movie.
•Distributing content directly to mobile devices: All of the major motion picture studios distribute full-length films and
television shows directly to consumer mobile devices through the major mobile operators (e.g. Sprint TV, PIX, a film service
for mobile phones launched by Sony

Publishing Books Amazon Kindle, Apple iPad

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 Legal Tools Used by Our Trading Partners to Foster
Creativity - That are Balanced, Proportionate and Fair
Tools to Address Digital Status Trading Partners Status Canada
Piracy

WIPO- protect TPMs G20 strong protection against circumvention of TPMs and trafficking in tools used for n/a
circumvention

WIPO-making available G20 all have enacted right; used in EU against Pirate Bay. n/a
right

WIPO-protect rights G20 all have enacted right n/a

Notice and takedown • De facto standard in the EU and other countries that permit service providers to rely on n/a (Bill C-60 and C-61 had no
hosting exceptions only if they remove or disable access to infringing content when they notice and takedown regime and
have knowledge of infringement. the hosting exception would have
applied even if the hosting
• Finland, Iceland, Australia, Singapore, U.S.: formal notice and counter-notice system
provider had actual or constructive
which is fair to rightsholders, consumers and ISPs.
notice of infringement.)

Graduated response • Enacted in France, Taiwan, South Korea and Japan (cell phones) n/a (Bills C-60 and C-61 proposed
only notice and notice)
• U.K. and N.Z.: in process of enacting fair, balanced and nuanced regime
• U.S/Australia: ISPs must have and implement a policy to terminate accounts of repeat
infringers

Accessorial (secondary) • EU- e.g. France, Germany, Netherlands, Finland: strong laws which impose liability if Accessorial liability potentially for
liability intermediaries do not take effective and appropriate measures to combat infringement. (i) inducement, and (ii) acting in
concert.
• Australia-expanded authorization (examines (i) if there is power to prevent infringement,
(ii) reasonable steps were taken to prevent or avoid it and (iii) if there is compliance with
an industry code).
•U.S.-liability based on (i) inducement, (ii) contributory liability (actual or constructive
knowledge and materially contributing to infringement); or (iii) vicariously liability
(profiting from direct infringement while declining to exercise a right to stop or limit it).
Ability to obtain • EU Copyright Directive Article 8(3) n/a
injunctive relief against
• U.S. DMCA
intermediary, e.g. orders
10 access to P2P
blocking
sites
Fair Dealing or Fair Use?
• “Fair use” is only available in a few countries worldwide.
• “Fair use” is open ended and vague. It leaves consumers, businesses, and
copyright owners unsure of what is legal and what is not. There are very high
transaction and legal costs associated with determining what is a “fair use”.
• The EU, including the U.K., New Zealand, Australia and Canada have
previously studied and rejected adopting an open ended “fair use” regime.
• Professor. D’Agostino of Osgoode Hall Law School, identified numerous
problems with fair use and concluded that the formulation of a Canadian
model would have to consider a myriad of factors before settling on what
would make sense for Canada.
• Follow the model of the EU, Australia and others which examine the need for
exceptions on a case by case basis. See, Taking forward the Gowers Review of
IP: Second stage consultation on Copyright Expections.

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Conclusion
• Canada is at a cross-roads when it comes to copyright.
• Canada should follow the lead of its important trading partners
which believe that copyright can foster legitimate vibrant
markets for creative products.
• We can learn from their approaches and experiences.

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