Why is there Copyright? The moral argument - copyright is a natural right of property in the creation of a persons mind The economic argument - copyright should be protected by statute because of its economic benefits, the encouragement of investment in creation, invention and the publication and dissemination of information
Historical Development of Copyright PRE-GUTENBERG movable-type PRESS (circa 1450) – literary and art work reproduced by hand – copying was welcome -- fame more economically important than sales of copies Post-Gutenberg - Royal control and regulation of printing for purposes of censorship 1500-1700
Historical Development of Copyright 1709 the first Copyright Act -- Statute of Anne gave authors the sole right of printing copies of their works for 14 years from publication A Bill for the Encouragement of Learning, and for Securing the Property of Copies of Books to the Rightful Owners thereof
Historical Development of Copyright Copyright protection extended in the UK to engravings and prints (1734, 1836); lithographs (1852); sculpture (1814); dramatic works (1833); paintings, drawings and photographs (1862); musical works (1882); Imperial Act of 1911 to facilitate adherence to the Berne Convention; common law copyright repealed
International Aspects Berne Convention – 1886 and revisions – National treatment; minimum protections; no formalities Universal Copyright Convention – 1952 – Countries that required formalities; shorter term Rome Convention – 1964 – Protection for neighbouring rights NAFTA – 1994 TRIPS – 1996 – WTO countries – Requires compliance with Berne
International Aspects WIPO Treaties - 1996 – Copyright Treaty – Performances and Phonograms Treaty Aimed at protection in the digital age – Right of making available Canada is a signatory but has not yet implemented these obligations
Development of Legislation 1709 – Statute of Anne – 14 years First Canadian copyright act 1868 – required registration Canadian Copyright Act of 1921 modeled on 1911 Imperial Act, in force 1924 (adherence to Berne Convention) 1988 Phase I changes to Canadian Act – computer programs and moral rights clarified 1997 Phase II amendments – private copying; neighbouring rights Phase III Digital Rights – was to be initiated in 2001, but amendments yet to be implemented Bill C-11 may achieve this
Canada's Private Copying Regime Levy paid on blank audio tapes and CDs In exchange, no infringement to copy a musical work onto such a medium for personal use Some problems with new technologies...
Private Copying 80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of (a) a musical work embodied in a sound recording, (b) a performer's performance of a musical work embodied in a sound recording, or (c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording.
Private Copying 79. "audio recording medium" "audio recording medium" means a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium;
Private Copying Apple Canada v. Canadian Private Copying Collective (2008 FCA 9) confirmed previous decision that Copyright Board does not have jurisdiction to certify a tariff on digital audio recorders or the memory permanently embedded therein This shows that Parliament's definition of "audio recording medium" stands in contra-distinction with a recorder or similar devices as these were known to exist at the time and whose function it is to record and play blank audio tapes. No one has ever pretended that tape recorders came within the ambit of the definition. A digital audio recorder is not a medium; the CPCC recognized so much when it asked that the levy be applied on the memory found therein but not on the recorder itself. The Board erred when it held that it could certify a levy on the memory integrated into a digital audio recorder.
Private Copying Rationale is that memory only becomes an audio recording medium if it is embedded into a digital audio recorder But digital audio recorder is not a medium Leaves open the question of whether the private copying exception applies to MP3 players? If the memory of the MP3 player is not audio recording medium, then does s. 80 apply?
Response – From the Courts Dec. 6 and 7, 2011 – SCC heard appeals in five cases from the Copyright Board communication to the public by telecommunication Whether download a video game that includes a musical work is a communication of that musical work to the public by telecommunication [yes] Whether the download or stream of a musical work is a communication to the public by telecommunication [yes]
Copyright at the SCC Cont. Fair dealing Previews of music purchases prior to downloading a musical work [yes] Copying for educational purposes (K-12) [no; appeal re: making short excerpts] Neighbouring rights entitlement to equitable remuneration for musical works used in movies and TV shows [no] Soundtrack specifically excluded from definition of sound recording in the Act
Bill C-11 – Some Highlights Photographs – repeal of specific provisions of s. 10 pertaining to term and ownership Fair dealing – new exceptions added for parody, satire and education New exception for user-generated content for non-commercial purposes New exceptions for making copies for private purposes and timeshifting Technological protection measures
Copyright Basics Protects expression, not ideas Arises automatically on creation No formality or registration required Treaties mean virtually international recognition Section 2 Copyright Act – defines copyright as the rights set forth in the Act Section 3 defines the rights for works
Requirements for subsistence of copyright (s. 5) ENTITLEMENT Author - s. 5 citizen or resident of treaty country OR First publication in treaty country ORIGINALITY S. 5 Copyright shall subsist in every original... Low threshold – exercise of skill and judgment
Requirements for subsistence of copyright SUBJECT MATTER works (literary, dramatic, musical, artistic) non-works (performances, sound recordings, communication signals) moral rights FIXATION
Act stipulates that copyright subsists only in original works but does not define original How could/should original be defined?
Originality – Sweat of the Brow See University of London Press v. University Tutorial Press Original does not mean that the work must be the expression of original or inventive thought, nor that the form of expression be in an original or novel form, but only that the work must not be copied from another work -- that it should originate from the author
Originality – University of London Press did the work require selection, judgment, experience? time spent is irrelevant, as is the fact that it draws on the common stock of knowledge what is worth copying is worth protecting
Originality – Creativity – Compilations Feist Publications v. Rural Telephone Service (1991), 499 U.S. 340 (USSC) Rurals directory -- name, town, # Feists directory -- name, address, #, added information, but 1,309 were identical, 4 of which were fictitious there can be no valid copyright in facts, which are merely discovered and not created nonetheless original compilations of facts are protected
Originality – Creativity – Compilations Feist v. Rural Telephone Service modicum of creativity is a constitutional requirement in the US author if the SELECTION and ARRANGEMENT of the facts are original, those elements are protected by copyright, but the copyright does not extend to the facts themselves sweat of the brow doctrine was in error Idea/expression dichotomy
Originality – Creativity – Compilations Feist v. Rural Telephone Service originality only requires that author makes the selection and arrangement independently and that it displays some minimal level of creativity the alphabetical listing, by surname, of data provided by subscribers is devoid of the slightest trace of creativity
Originality – Creativity – Compilations Tele-Direct v. American Business Information Inc. (FCA -- leave to SCC denied) Bell Canada provided subscriber information (heading description, name, address, phone #) issue was only whether the compilation of in- column listings was original
Originality – Creativity – Compilations Tele-Direct v. American Business Info. court found that 1993 NAFTA amendment to definition of compilation was significant selection or arrangement of data only results in a protected compilation if the end result qualifies as an original intellectual creation Protection not to extend to the data itself
Originality – Creativity – Compilations Tele-Direct v. American Business Info. Finding -- for a compilation of data to be original, it must be a work that was independently created by the author and which displays at least a minimal degree of skill, judgment and labour in its overall selection and arrangement author implies a sense of creativity and ingenuity
Originality – The Canadian Test SCC in CCH Canadian Ltd. v. Law Society of Upper Canada has finally decided the test creativity is not required for originality To be original the work must not be copied from another work, and the work must be the product of an authors exercise of skill and judgment Need not be creative
Originality – The Canadian Test sweat of the brow standard is too low creativity standard is too high Suggests works must be novel or non-obvious proper test falls between these two extremes
Originality – The Canadian Test Para. 16 explains: work must be more than a mere copy of another work need not be creative, in the sense of being novel or unique requires an exercise of skill and judgment skill = the use of one's knowledge, developed aptitude or practised ability in producing the work. judgment = the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. will necessarily involve intellectual effort must not be so trivial that it could be characterized as a purely mechanical exercise
Originality – The Canadian Test different works at issue: reported judicial decisions (in their entirety) Courts reasons for judgment are NOT original works created by the publisher headnotes annotated Criminal Practice case summary topical index textbook monograph (chapter of textbook)
Fixation Cdn Admiral v. Rediffusion for copyright to subsist in a work, it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance the law will not intervene to protect something which is not definite and ascertainable
Fixation Cdn Admiral v. Rediffusion telecast of live home football games telecast of filmed away games rediffusion to private homes rediffusion to public showroom no copyright in live spectacles, sports matches, parades, processions is live broadcast an artistic or dramatic work?
Fixation Gould Estate v. Stoddart Publishing (Ont CA) claim for breach of contract, misappropriation of personality, infringement of copyright there was no agreement, other than the implied consent to use the interviews and photographs in a Weekend magazine article both Gould and Carroll died before trial
Fixation Gould Estate v. Stoddart Publishing Ont CA based decision on copyright issue once it found that Carroll owned copyright and consent to use materials was not limited, there was no misappropriation of personality issue affirmed that Gould had no copyright in spontaneous oral interview Carroll acquired copyright in the written materials, including the quotes
Fixation Théberge – Binnie J. writing for majority discusses nature of copyright With respect to fixation, emphasizes its importance for copyright copyright springs into existence as soon as the work is written down or otherwise recorded in some reasonably permanent form the image fixed in ink is the subject matter of the intellectual property
Fixation - Théberge Even if one were to consider substitution of a new substrate to be a fixation, the fact remains that the original poster lives on in the re-fixated poster. There is no multiplication and fixation alone is not an infringement of the original work
Fixation – Non-works Note s. 3(1.1) simultaneous fixation of telecommunication is a fixation Non-works (performers performances, communication signals) acquire certain rights without fixation. See s. 15, 21
Summary - Requirements Originality (s. 5, CCH skill and judgment) sweat of the brow standard rejected: Feist and Tele- Direct illustrate problems with this standard but SCC says creativity too high a standard Entitlement (s. 5 – treaty country) citizenship, residence, or place of first publication Subject Matter works, non-works, moral rights Fixation see s. 2 dramatic works, computer programs; Cdn Admiral Corp.; Gould Estate Recent SCC cases like Th é berge emphasize importance
Next Class Works Rights Comprising Copyright Moral Rights Neighbouring Rights Please read pages 28-66 of the Copyright Readings