Arrrr: Piracy and Creativity Online Under Canada's New Copyright Regime

Me Allen Mendelsohn March 28, 2013

Not your average boring IP presentation!

Hip-hop! Star Trek! P0rn! (SFW) YouTube vids up the ying yang
Arrrr: Piracy and Creativity Online

Me! Me! Me!

Lawyer + internet = Me!

Arrrr: Piracy and Creativity Online

My Client the HIMYM Pirate

We received a complaint affirming that activities associated with your IP address may infringe intellectual property rights of a third party. We would like to remind you that the reproduction of protected material constitutes an infringement to the exclusive right of its holder. This behaviour could expose you to legal action from this third party and to a judgment to pay damages. Generally, you must obtain the permission or rights in order to reproduce any protected material.

Internet Security Vidotron

Arrrr: Piracy and Creativity Online

You are not Anonymous

IP (Internet Protocol) Address
XXX.XXX.XXX.XXX where XXX = 0 to 255

Voltage Pictures LLC v. Untel, 2011 FC 1024 (T.D.):

where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing action

Arrrr: Piracy and Creativity Online

You are not Anonymous (cont.)

R. v. Ward, 2012 ONCA 660. On privacy:
If, for example, the ISP disclosed more detailed information, or made the disclosure in relation to an investigation of an offence in which the service was not directly implicated, the reasonable expectation of privacy analysis might yield a different result.

Morris v. Johnson, 2011 ONSC 3996

Freedom of expression and right to privacy trumped the need to identify potential defendants because no prima facie case for defamation
Arrrr: Piracy and Creativity Online

Piracy and Creativity: Rhymin and Stealin

Arrrr: Piracy and Creativity Online

Does Canadas Copyright Law Balance the Rhymin and Stealin Online?

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Balancing
the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator - CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (referring to Thberge)

Arrrr: Piracy and Creativity Online

Bill C-11: Copyright Modernization Act

Fourth times a charm! 1. 2. 3. 4. C-60 (2005) C-61 (2008) C-32 (2010) C-11 assented to June 2012; in force (for the most part) November 7, 2012
Survey of Internet Law

C-11: Summary
This enactment amends the Copyright Act to (a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards; () (e) permit certain uses of copyright material by consumers;
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C-11: Canada discovers the internet

Notice and notice (ss. 41.25 ff.) ISP and Hosting liability shield (s. 31.1) Statutory damages limits (s. 38.1) $100-5000 for non-commercial (all works) $500-20,000 for commercial (each work)

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Enabling piracy
Secondary infringement enabling:
27 (2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

http://isohunt.com
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Enabling factors
(2.4) In determining whether a person has infringed copyright under subsection (2.3), the court may consider (a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement; (b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement; (c) whether the service has significant uses other than to enable acts of copyright infringement; (d) the persons ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so; (e) any benefits the person received as a result of enabling the acts of copyright infringement; and (f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.
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But it took Canada too long

Columbia Pictures v. Fung, Court of Appeals for the 9th Circuit, March 21, 2013 Fung liable for infringement as per Grokster and could not benefit from safe harbors of DMCA Fung encouraged infringement Fung sold advertising based on infringing Fung had red flag knowledge
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Are you an online pirate?

I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service. In either case the preconditions to copying and infringement are set up but the element of authorization is missing. downloading a song for personal use does not amount to infringement BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241 (T.D.)
Arrrr: Piracy and Creativity Online

Are you an online pirate?

In general, the basic conditions for the subsistence of copyright under s. 3 are satisfied for files shared through BitTorrent. Given the operation of s. 27 there is certainly a torrent of copyright infringement by BitTorrent users. -unpublished LL.M. thesis
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Lets get creative

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Mister Worf, fire the mashups

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Mister Worf, SHIELDS!!!!!

Non-commercial user-generated content
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subjectmatter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists

Conditions: 1. attribution; 2. non-commercial; 3. original work did not violate ; 4. no adverse effect (financial or otherwise) on original work
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New fair dealing exceptions

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

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Parody
Oxford an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect Merriam-Webster a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule
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Satire
Oxford the use of humour, irony, exaggeration, or ridicule to expose and criticize peoples stupidity or vices, particularly in the context of contemporary politics and other topical issues Merriam-Webster a literary work holding up human vices and follies to ridicule or scorn
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But are they always funny?

Oh, Pretty Woman

Pretty Woman

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But are they always funny?

Star Trek

This Aint Star Trek

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Trying to define Parody

No stable understanding of the term parody exists - Michael Spence, Intellectual Property and the Problem of Parody (1998) 114 L. Q. Rev. 594

Basic Internet Law for SMEs

XXX Parodies in the Courts!

Productions Avanti Cin Video v. Favreau, [1999] RJQ
1939 (C.A.)

La Petite Vie La Petite Vite

le film 3X de Favreau a non seulement manifestement utilis les personnages de La Petite Vie , parfaitement reconnaissables dans leurs costumes et leurs manies, mais il s'est aussi appropri tout l'aspect visuel de l'oeuvre de Meunier. Favreau a recouru au maximum de ce qu'il pouvait prendre dans La Petite Vie (les dcors, les personnages, les tics, les expressions, etc.), pour ensuite l'intgrer dans son film. Il ne s'agit manifestement pas d'une parodie
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Avanti case (cont.)

Parody normally involves the humorous imitation of the work of another writer, often exaggerated, for purposes of criticism or comment. Appropriation of the work of another writer to exploit its popular success for commercial purposes is quite a different thing. cash in on [La Petite Vies] originality and popularity an infringement of appellant's copyright motivated by commercial opportunism (Rothman J.A., concurring)
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All about the bling

Campbell v. Acuff-Rose Music, 510 U.S. 569 4 factors of 107 fair use: (1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
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All about the bling in Canada

Re factor 6 of CCH 2004 SCC 13: If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair

Arrrr: Piracy and Creativity Online

Just one more vid

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Conclusion?
You can be creative online, but you better not be a pirate and make any $$$ doing it

Arrrr: Piracy and Creativity Online

Thanks! Questions?
allen@allenmendelsohn.com allenmendelsohn.com scribd.com/allen_mendelsohn
Arrrr: Piracy and Creativity Online