All Wrapped Up - Canadian Federal Court Decides on the Sharing of Pay-walled Copyright Works

While the European landscape has changed and clarified itself to a great degree in relation to the use of copyright protected content online (see more for example here, here and here), the rest of the world, comparatively at least, has stayed relatively quiet. One issue in particular, meaning the accessing of pay-walled or otherwise restricted content through sharing of that content to others without access to is is legal or not, has trickled through more than others. Many would argue that, while not definitive, the EU is quite established itself on where it stands on this, but our cousins across the pond in Canada have yet to fully cement themselves in this question, as can be illustrated by this recent decision in the Federal Court of Ontario.

The case of Ontario Ltd (Blacklock's Reporter) v. Canada (Attorney General) dealt with an online news agency, Blacklock's Reporter, which specializes in news surrounding, predominantly, the Canadian government. The Department of Finance, a part of the Canadian government, distributed two articles from Blacklock' within the Department without seeking consent. The contents of the article are largely irrelevant to the case, but Blacklock's does keep all of its contents behind a paywall, with a DOF employee accessing the relevant articles through a single subscription, subsequently sharing them internally within the DOF. Blacklock's then took the DOF to court over copyright infringement.

The Federal Court had to assess whether the rights in those works had been infringed, and if that use then was protected by fair dealing.

The court did not dispute the copyright in the works under section 29 of the Canadian Copyright Act (nor did the parties), but did raise questions as to whether Blacklock's assertion of their rights could amount to an abuse of those rights. The question therefore focussed on the aspect of fair dealing.

Canadian fair dealing covers only a narrow set of exceptions in section 29, particularly for research, private study, education, parody or satire. The DOF argued that their use was for research purposes and didn't therefore infringe Blaclock's rights.

Section 29 was further expanded on in the milestone case of CCH (discussed more here), which set a two-part test on whether a use was protected by fair dealing: 1. Whether the dealing is for the purpose of “research” or “private study”, also known as an allowable purpose; and 2. Whether the dealing is “fair”. The latter, whether a particular use is fair, involved certain factors that the courts ought to consider:

"1. The purpose of the dealing, where an objective assessment is made of the “real purpose or motive” behind using the copyrighted work, such as for commercial purposes versus charitable purposes; 2. The character of the dealing, examining how the works were dealt with, such as whether multiple copies of works are being widely distributed, or whether a single copy of a work is used for a legitimate purpose; 3. The quantity or amount of the dealing, including the importance of the work allegedly infringed; 4. Alternatives to the dealing, such as whether there is a non-copyrighted equivalent of the work that could have been used instead; 5.  The nature of the work, such as whether the work has been published or is confidential; and 6. The effect of the dealing on the work, such as whether a reproduced work is likely to compete with the market of the original work."

While the above two categories relate more directly to the research exception put forth by, a more nuanced approach has been adopted for research in the SOCAN case, which were distilled by the court in the case at hand:

Research can be more 'challenging' than you'd expect

"Research does not need to be undertaken for the purpose of the user engaging in its own act of authorship or creativity; Research is not limited to creative purposes but can be “piecemeal, informal, exploratory, or confirmatory”, and can be undertaken for no purpose except personal interest; The first step in the fair dealing analysis is a relatively low threshold and does not require the creation of a new work; and The analysis should be undertaken from the perspective of the user or consumer’s purpose". Here the court gives a very wide definition of research, potentially including mere personal interests, even if not 'academic' research, which can include much of the information used to support the purpose. This writer is encouraged by this finding, since a more narrow, limiting definition would deter private researchers (such as this 'researcher') and the potential sharing of that knowledge with others.

The Court quickly, without giving the above much consideration, determined that the DOF's use was indeed fair dealing. This included the fact that, for example, the materials were acquired legally through a licence, the use was for legitimate business reasons internally in the DOF, no commercial advantage was sought and that it was limited to only 6 individuals. Even though the terms and conditions were breached as a result, the court rejected that this would prohibit or prevent fair dealing from applying in those instances. They, however, have to be brought to the attention of the subscriber, which Blacklock's had not done (albeit the terms did exist, but were never formally accepted by the individuals signing up). The defendant was therefore never aware of the terms, and of their own breach as a result.

Judge Barnes determined that fair dealing did apply in this case, and noted that "...Absent consent, subscribers and downstream users are subject to the obligations imposed on them by the Act. But at the same time they enjoy the considerable protection afforded to them under the statutory fair dealing provisions". He further highlighted that, as contested by Blacklock's, that subscriber services like this would suffer very little detriment to their business model, but it does not allow for a carte blanche for users to share the content, which is restricted to genuine fair dealing either way.

The case shows that, provided the uses are legitimate, fair dealing should be afforded a broad and inclusive definition, especially when it comes to research. One can agree with this, since a strict interpretation would act counter-intuitively to the sharing and dissemination of information. The decision also highlights a potential need for the UK to adopt a similar 'fair use' policy, which broadens and protects legitimate uses in a more effective way than restrictive categories.

Source: Barry Sookman

Change is Scary - The EU Commission Sets Out Proposals for New Copyright Changes

Copyright seems to have been immersed in a perpetual sea of change in the last couple of years, especially here in the UK and the EU as a whole. While this change is hugely important, including for the harmonization of aspects in technological change that have profoundly shaped the sphere in which copyright operates. With the EU's recent dive into a new perspective on the Single Digital Market having been published a little over a years ago (more on which here), future, more concrete changes have yet to be released; however, this changed only a few days ago.

As said, the EU Commission just recently published its propositions to modernize copyright in the wake of the Digital Single Market strategy. While the documents themselves are quite extensive, this writer would aim to discuss the proposed changes more in the broader sense, hopefully to encapsulate the main points of the propositions themselves.

Better choice and access to content online and across borders

As outline in the DSM strategy, access to online content within the EU is paramount to the Commission, with intentions to stop geo-blocking and allow for access to domestic content even abroad (i.e. using the BBC iPlayer when on vacation in the EU). This was expanded on in the proposition as an introduction of "...a legal mechanism for broadcasters to obtain more easily the authorisations they need from right holders to transmit programmes online in other EU Member States". Clearly this seems to envision a cross-EU licencing scheme, or the broadening of existing licences to cover more than their origin country. Initially, as outlined in the proposal, this would be done through a dialogue with the audiovisual industry on licencing issues; however, this writer would not see it as an impossibility that this would be legislated on somehow in the future if progress is not made as desired.

This is expanded on in the Commission's communication, which sets out measures to be taken in relation to access to online content, copyright exceptions and a more efficient enforcement regime.

Improving copyright rules on research, education and inclusion of disable people

Change is scary, so lets manage it!

There are also desires to improve the rules surrounding research, education and inclusion of disable people, particularly broadening access to protected materials for these types of uses. The proposal would include "...a new exception to allow educational establishments to use materials to illustrate teaching through digital tools and in online courses across borders", with additional provisions dealing with cultural heritage institutions (and their preservation of that heritage, as well as access to the content for citizens). While research and access to cultural heritage are very important, the EU sets out the desire to implement the Marrakesh Treaty, which aims to "...facilitate access to published works for persons who are blind, have other visual impairments or are otherwise print disabled", as well as adding measures that will allow for the full participation of disabled individuals in society by providing access to materials (or ways to convert such materials, presumably) that are protected by copyright.

Some of the proposed provisions include an exception for the use of works and other subject-matter in digital and cross-border teaching activities and the copying of cultural heritage materials without infringing copyright. Especially considering the former, the activities must be legitimate, and will undoubtedly be prescribed to certain situations and contexts, much like existing exceptions for research.

A fairer and sustainable marketplace for creators and press

Lastly, the Commission's proposed Directive on Copyright in the Single Market aims to (including the above) "...reinforce the position of right holders to negotiate and be remunerated for the online exploitation of their content on video-sharing platforms such as YouTube". The Directive would impose an obligation on the service providers to have an automatic system that tags and/or removes illegal content, much like YouTube's Content ID system already does (irrespective of its controversial nature). One can imagine this will be a treacherous and unpredictable imposition on service providers, and would remain to be seen how it is genuinely implemented, and whether the providers would face sanctions for lax or non-existent enforcement.

The EU Commission's proposals are quite interesting, and pose, at least in theory, a possible modernization of copyright in the Digital Single Market. As an individual with an international background, I welcome more access to content when abroad, and the expansion of teaching opportunities and the preservation of cultural heritage. What will be interesting are the measures deployed against large service providers, whose users might upload large or small quantities of illegal content on their systems. The provisions, however, in this regard seem to be aimed at cooperation and coexistence, but can pose a problem if presented as one-sided affairs for rights-holders.

Source: IPKat

I Looked it Up - Original Research Not Protected by Copyright in Canada

Research is incredibly labor intensive, and can take great leaps to achieve a given result (whether intended or not) or to argue a specific line of thinking. This expended effort into creating a work of merit or intrigue can be something that many would want to defend and benefit from, while preventing others from doing the same without putting in the very same work. With that being said, would one therefore be able to protect their research through copyright? This question was answered by the Federal Court of Canada in early May.

The case of Judy Maltz and others v Jennifer Witterick and Penguin Canada Books Inc. dealt with the documentary "No. 4 Street of Our Lady", which delved into the life of Francizska Halamajowa and her daughter Helena, who lived in Polan during World War 2 during the country's occupation by the Germans. During this time Ms. Halamajowa hid three Jewish families from the Nazis for nearly two years, as well as some German soldiers who deserted the Nazi army towards the war's end. The documentary was produced and directed by the claimant (along with her co-claimants), Ms. Maltz, who used her Moshe Maltz's, her grandfather's, diary for the factual background of the work. Jennifer Witterick, the defendant, after learning about the story of Ms. Halamajowa, wrote a book about her (although in a fictional context, incorporating some facts from the documentary in the book) titled "My Mother’s Secret". Ms. Maltz subsequently took the parties to court, asserting copyright infringement in her work.

The Court faced the questions of whether the work is protected by copyright, whether Ms. Maltz's moral rights had been infringed, and if she could claim damages for the same.

An interesting submission by the claimant is the use of 'small facts' versus 'big facts'. This distinction is made on the basis that big facts, such as World War 2 as a whole or other associated major events, cannot be protected by copyright, but the use of small facts, pertaining to very specific, possibly niche or unknown events, would be protectable through copyright.

Justice Boswell, handing down the judgment of the Court, first dealt with the copyright protection of the work. He acknowledged that (which stood undisputed by either parties) that the documentary was indeed a protected work, and Ms. Maltz would have rights to assert against any substantial copying of that work. He further affirmed, as has been accepted since the judgment in CCH (discussed more here on this very blog) that 'sweat of the brow' (work and effort, in other words) is not protected, but a proper exercise of skill and judgment in the creation of any given work. Similarly, this does not extend to mere facts.

Bill just never knew when to stop asking questions

Justice Boswell saw that "Mrs. Halamajowa’s story is not in and of itself covered by the Applicants’ copyright in the Documentary. The factual details of her story are also not covered by the Applicants’ copyright. It is not the story that the Applicants’ copyright protects but, rather, the Applicants’ specific expression of it through the exercise of their skill and judgment". As has been firmly established in copyright, it extends to the expression of ideas and not those ideas alone. Justice Boswell also handidly rejected the claimant's argument in 'small' or 'big' facts, as determined that "[c]opyright law recognizes no such difference or distinction. Facts are facts; and no one owns copyright in them no matter what their relative size or significance". The use of the facts from the documentary therefore would not infringe copyright. Arguably, this makes perfect sense, since facts are always facts, irrespective of their size or notoriety. Allowing for the protection of 'small' or even lesser known facts would create an area where the law would be at odds with itself, and the interpretation of Justice Boswell makes sense in preventing this issue.

The judge then turned to the matter of whether the work had been copied substantially. He emphasised that this would not include any facts presented in the documentary, but only the expression of those facts (as mentioned above). Justice Boswell concluded that there was very little verbatim copying from the book in the documentary, and its impact on the documentary's value would be minimal, or even non-existent, as the documentary's popularity had already been on the wane before the book's publication. He ultimately deemed the works to be wholly different in their expression, and although share the same story, would be separate, protectable works in their own right.

Finally, Justice Boswell addressed the issue of moral rights, and whether the book had infringed on those rights after its publication, which he deemed to be not infringed, due to no evidence existing that supported this notion. He dismissed the claim and awarded no damages to Ms. Maltz as neither her copyright or moral rights had been infringed.

Although the case is a very straightforward application of the law, it still presents an interesting notion on nuanced research or factual knowledge. While being able to present a niche argument, or a very little known story, can be a valuable asset, factual subject matter should not be protected through copyright, which would impede on the dissemination of freely available factual information by those who desire to create a different work entirely. Justice Boswell's judgment is a common sense one, but this writer enjoyed the mental exercise put forth by Ms. Maltz in her case.

Source: The Globe and Mail

A Rosey Future Ahead? - EU Commission Addresses Copyright for 2016

As the year is nearly coming to a close, this writer thought it would be pertinent to set our sights for the coming year. 2016 will hopefully be one of further advancement, change and full of cases detailing the law in more intricate, nuanced and better ways. It is always interesting to get perspectives on future changes from the legislature, and such thoughts were shared by the EU Commission and its initiatives on copyright for copyright.

A more modern, more European copyright framework

The framework where copyright operates has gone through a massive sea of changes, not only in terms of the media covered and people's interaction with that media, but also the technological advancements that have effectively redefined human interaction, media consumption and our perception of the world. With this change a strong, but malleable approach to reform would need to be adopted, and as countries have taken their steps towards a newer copyright regime, a EU-centric change was also needed. The EU Commission, as stated above, has brought forth several points of reform, introduced in their press release only a handful of days ago, aiming to modernise the copyright rules in the Union.

Widening access to content across the EU

The Commission envisions the enablement of EU citizens to take their paid-for (or subscribed-to) content with them in the Union, or as the press release states: "[the] aim[] [is] to allow a better circulation of content, offer more choice to Europeans, to strengthen cultural diversity and provide more opportunities for the creative sector". Arguably this would be a tremendous improvement and a move for the harmonization of copyright within the EU, accessibility to content, and to expand the markets beyond their respective national borders.

This, per the proposal released some time ago, would be achieved through an obligation on Member States to enable their citizens to access online content services (defined the same as in Directive 2010/13/EU or as a service, both paid for or not, whose main feature is the provision of access and use of copyright works) when they are temporarily out of the country the service originally is provided.

How this is implemented in each Member State, and whether any restrictions will be added to post-proposal, will remain to be seen, but this writer believes this would be a huge leap forward in harmonizing the internal market, and to enable paying customers to access the services and/or content they have duly paid for.

Exceptions to copyright and creating a fairer marketplace

The Commission also sets out an intent to assess the exceptions that apply to copyright protected works, specifically in relation to education, research (data mining, specifically) and the use of such works by disabled individuals. They also aim to provide further clarity to the legal standing of images uploaded by internet users of monuments (this issue discussed more here).

It was the day that Sally had foreseen, and was dreading, all along

It is hard to say what the Commission is set to change or clarify, but this writer will express his concern for the latter point on images featuring monuments and their possible status as infringing or non-infringing works. The spread and dissemination of information is important, as well as individual expression through photographical works, and the dissuasion or illegality of such expression would be worrisome.

The Commission also wants to tackle the remuneration of content creators in the online sphere, specifically in relation to news aggregators, and will "...analyse whether solutions are needed at EU level to increase legal certainty, transparency and balance in the system that governs the remuneration of authors and performers in the EU, taking EU and national competences into account".

This was addressed in more detail in their communication as an examination of "...whether action is needed on the definition of the rights of ‘communication to the public’ and of ‘making available’... [and] whether any action specific to news aggregators is needed, including intervening on rights". This area of the law is still quite murky, and further clarification and potential legislation might be needed to balance the current arguable free-for-all in the online space regarding news aggregation.

Fighting piracy

Finally, the Commission wants to go further in the enforcement of copyright against possible pirates, engaging in a public consultation on the matter with all stake-holders (focusing on the efficacy of Directive 2004/48/EC). Additionally it will include considerations on "...how to make the removal of illegal content by online intermediaries more efficient".

Their objective is clearly a 'follow-the-money' approach, however a strict, DMCA style weaponry could leave legitimate entities and/or fair dealing without proper protection. As their communication states: "...the Commission will assess options and consider by autumn 2016 the need to amend the legal framework focussing on commercial-scale infringements, inter alia to clarify, as appropriate, the rules for identifying infringers, the application of provisional and precautionary measures and injunctions and their cross-border effect, the calculation and allocation of damages and legal costs".

This writer hopes that the review process proposed by the Commission above remains fair and balanced, and remains hopeful things will be fine down the line. Nevertheless, 2016 should be an exciting time for copyright, and we will all undoubtedly stay interested in the proposed regulations that will be put forth.

Source: IPKat  

Retrospective - Manner of Manufacture in Australia

With the Myriad Genetics appeal here in Australia looming in the near future, I thought it'd be time to discuss an important aspect in the case, both at first instance and in the appeal; what can be classed as being a 'manner of manufacture'? To give more clarity as to where this stems from, a component for an invention to be patentable is that is has to be 'a manner of manufacture' under the Patents Act 1990. This requirement dates as far back as the Statute of Monopolies 1623 in England. What can be classed as such has not been restricted to a literal meaning of the phrase, but has encompassed a wide variety of things, not purely industrial inventions relating to the manufacture of goods. The leading case in Australia in what can be seen as a 'manner of manufacture' is National Research Development Corporation v Commissioner of Patents, often referred to simply as the NRDC case.

The bane of every budding farmer

NRDC concerned a patent relating to the killing of weed plants in agriculture. NRDC had developed a method of using previously known chemicals and applying them directly to the soil, killing weed plants but still retaining the crops. What was new in this invention was that the chemicals only killed the weeds if applied in this specific manner, when it was previously believed they would not have this effect. NRDC applied for a patent for their invention which was rejected by the Patent Office based on the fact that it was not a manner of manufacture under the (at the time in force) Patents Act 1952 as the chemicals used were already known and their application in that manner would not constitute a 'vendible product'. The matter was taken further to the Deputy Commissioner of Patents, who also rejected the patent based on the same facts. NRDC subsequently appealed and the case went all the way up to the High Court of Australia in 1959.

The High Court therefore had the final say in determining whether NRDC's invention was indeed a 'manner of manufacture' under the 1952 Act, which was previously rejected both during the initial application and on its appeal. Their Honors considered other matters in the case, such as novelty, however these are not relevant to determine what can constitute a manner of manufacture; although equally still important as requirements for patentability in their own right.

A manufacturer with great manners

In their decision Justices Dixon, Kitto and Windeyer boiled down the matter into one single question: "Is this a proper subject of the letters patent according to the principles which have been developed for the application of s 6 of the Statute of Monopolies?" This was, in their mind, a matter of weighing the old definition according to the evolution of patents and how they have been assessed relying on older precedents and formulating an approach that would encompass the considerations put forth prior. Their Honors considered the case of Re GEC's Application where Justice Morton formulated the definition for what could amount to a 'manner of manufacture': "a method or process is a manner of manufacture if it (a) results in the production of some vendible product or (b) improves or restores to its former condition a vendible product or (c) has the effect of preserving from deterioration some vendible product to which it is applied". The judges in NRDC criticized this approach as having a narrowing effect if given a literal interpretation. This however links a 'manner of manufacture' to the idea of a 'vendible product', which was the consideration taken into account in the Patent Office's decision regarding NRDC's patent. Putting forth a clarification on Justice Morton's 'rule', their Honors stated that "It is, we think, only by understanding the word "product" as covering every end produced, and treating the word "vendible" as pointing only to the requirement of utility in practical affairs, that the language of Morton J.'s "rule" may be accepted as wide enough to convey the broad idea which the long line of decisions on the subject has shown to be comprehended by the Statute." Their Honors therefore accepted Justice Morton's approach, but insisted that the term 'vendible product' be given a wide and generous interpretation so as to not limit it.

Setting out the test for what would amount to a 'manner of manufacture', their honors saw that the invention "...must be one that offers some advantage which is material... the process belongs to a useful art as distinct from a fine art... [and] that its value to the country is in the field of economic endeavour." Applying this to the case at hand their Honors saw that the method employed by the claimant fell squarely within the definition of a manner of manufacture. The method can be considered a 'product' as it consists of an artificial state of affairs which can be observed if looking at the growth of the crops and the weeds when used. The method also has a significant economic effect as it gives an advantage to its users, yielding more and better crops. Clearly it also is a useful art as opposed to a fine art. The judges accepted the appeal and saw that NRDC's application should be accepted as lodged.

As one can easily see, the test for what can amount to a 'manner of manufacture' is quite broad, and justifiably so. With new technologies evolving fast and new inventions taking on wholly new functions and applications, leaving the test narrow, much like in Justice Morton's test, would hinder the progress of industry and lower the desirability of patenting those inventions or methods. Even though the test was formulated over 60 years ago, it still plays an important part in modern litigation; most recently the genetic patent litigation (which was discussed on this blog previously here) involving Myriad Genetics. What the appeal will yield still remains to be seen, but whether the isolation of genes is a 'manner of manufacture' still plays an important part in that determination.

Retrospective - All's Fair in Dealing and Education

Having just a few days ago written about the Canadian progression in the field of fair dealing and education in the new Copyright Modernization Act 2012, I thought it would be best to address a case that changed the way the old provisions of fair dealing applied to both study and education in newfangled ways, applying the principles set out in the mammoth of a case that was CCH, practically still hot from the oven (discussed on this blog as well and worth reading should you be unfamiliar with it).

The case of Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) dealt with the copying of excerpts from textbooks and other materials by teachers to distribute to their students as a means to study only specific parts of texts. Some of the materials being copied were under the copyright of Access Copyright, for which various royalty payments were negotiated in the 1990s between the school boards and the company. After subsequent negotiations there was an agreement made for royalties to be paid on a volume basis, instead of the old per-student basis negotiated for most of the decade.

The use of the copies was tracked individually to ascertain the volume being copied; looking at their purpose, who made the copies, and who they were for. Most of the copying was done by teachers either for themselves or for students at their behest, which was agreed to fall under fair dealing by both parties. The contentious matter was the copying of materials for students by the teachers to take home and read. It was argued that this copying of materials did not fall under fair dealing for research or private study, as the copies were not requested by the students themselves, not meeting the requirements set out in CCH, at the initial hearing for the Copyright Board. The schools argued that they would fall under the provision thus being exempt from the tariffs set by Access Copyright. The Copyright Board decided the use did not fall under fair dealing, failing to meet the requirements under CCH; however the schools appealed the decision.

Private "study"

The case culminated in the Supreme Court of Canada in mid-2012 where the matter of whether the teachers' use fell under fair dealing, specifically the aforementioned provision of research or private study was finally decided. One has to note that the Canadian provision expressly mentions the possible use of materials for study as a private one, possibly indicating that a teacher could not act as a conveyor of material to the student, largely being Access Copyright's argument in the case; as the copies were not made at the request of students, it did not fall under fair dealing.

The courts gave an interesting argument, deciding that the teachers' use did indeed fall under fair dealing. To fully appreciate how the Court reached this conclusion, it is useful to look at what exactly was said in the judgment:

"...there is no such separate purpose on the part of the teacher.  Teachers have no ulterior motive when providing copies to students.  Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study.  It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers.  They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.  The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.  Instruction and research/private study are, in the school context, tautological."

Clearly the Court saw that the relationship between a student and their teacher is symbiotic; one where the teacher merely facilitates the students' private study by providing them with the material. Should the students be instructed to go and look for the material themselves, copy it, and use it for personal study, their learning would clearly be hindered significantly. Without the teacher being a sort of "middle-man", and being a part of that personal study, the students would suffer.

The Court didn't alter its position in the matter of personal study, firmly sticking to its prior interpretations, but did apply common sense in the relationship between a teacher and a student in that regard. The case didn't enable anyone to abuse the provision under the veil of providing materials for others for personal study. The decision was a 5-4 split decision, clearly showing a side of disdain even in the judiciary to accept this use of fair dealing as such, but nevertheless the decision seems to be a practical one and clearly makes sense. Without the option for teachers to copy and distribute reading materials for their students, the underlying matter of fairness would be skewed towards the copyright owner instead of the user, clearly going against what fair dealing stands for; the allowance of use of various copyright materials to improve yourself, your knowledge and to improve society as well without the shackles of copyright payments when clearly there is no competing interest.