Fair Dealing Archives - Barry Sookman

Certified tariffs not mandatory says SCOC in York v Access Copyright

The Supreme Court released another landmark copyright decision in York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32. The decision, affirmed the decision of the Court of Appeal that held that certified tariffs are not mandatory on users who refuse to accept them. In addition, the Court further developed its fair dealing framework adopted in CCH v Law Society (CCH), Alberta (Education) and SOCAN v Bell Canada (SOCAN). In obiter dicta, the Court suggested that at the second stage of the fair dealing analysis where the allowable purpose is higher education, the purposes of both students and the educational institution should be taken into account rather than just the perspective of the university as the trial judge and the Court of Appeal had held.…

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Copyright Potpourri 2020-2021: my ALAI Canada presentation

I had the pleasure of speaking earlier today at an ALAI Canada meeting to give a copyright law update for 2020-2021. The title of my talk was Copyright Potpourri. The cases canvassed were:

–York University v. Canadian Copyright Licensing Agency, 2020 FCA 77

–York University, et al. v. Canadian Copyright Licensing Agency, SCC Docket 39222

–Bell Media Inc. v. GoldTV.Biz, 2019 FC 1432

–TEKSAVVY SOLUTIONS INC. v. BELL MEDIA INC., ET AL Appeal (Copyright Act, FCA A-440-19

–Entertainment Software Assoc.…

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Norms for copyright reform: my submission to the INDU Committee

Here is my submission to the INDU Committee conducting the s.92 review of the Copyright Act. It is based on my remarks made to the Committee when I appeared before it on December 3, 2018. My remarks to the Committee and answers to questions can be accessed on Parvu.

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I am a Senior Partner in the technology law group of McCarthy Tétrault. I have represented members of the creative industries, intermediaries and users. I also teach intellectual property law at Osgoode Hall Law School and have published books including on copyright and Internet law.…

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Browsewraps, fair dealing and Blacklock’s Reporter v Canada: a critical commentary

Blacklock’s Reporter is a small Canadian online news agency. Like many publishers it has challenges in enforcing its copyrights against unauthorized digital copying. To protect its rights it uses a subscription model to license content. It attempts to keep materials from unauthorized access and distribution by using a paywall. Recently the Federal Court in 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2016 FC 1255 concluded that the copyright in Blacklock’s news articles was not infringed when copies of articles lawfully obtained under a subscription by one subscriber were emailed to the Department of Finance and were then forwarded to others within the department.…

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By-passing paywall and circumventing TPM sinks fair dealing defense: Blacklock’s Reporter v CVA

Does by-passing a subscription paywall to access a news article violate the new prohibitions in the Copyright Act that make it an infringement to circumvent a technological protection measure (TPM)? Yes, according to a decision just released by an Ontario court in 395804 Ontario Limited (Blacklock’s Reporter) v Canadian Vintners Association, 2015 CanLII 65885 (ON SCSM). Can a defendant rely on the new fair dealing defense for education to excuse the copying if the defendant illegally accessed the work by circumventing a TPM to do so?…

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Copyright law 2014: the year in review

As the creative industries continued to grow economically in importance in 2014, so have the stakes in copyright litigation. Increasingly, the courts have been challenged to resolve complex disputes arising from new uses of works and other subject matter brought about by innovations in technology. While content is often a core and indispensable element of new and innovative services, products or offerings, frequently parties dispute whether the use requires permission and payment to rights holders or can be engaged in without permission or payment.…

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Fair use for Australia? A report from the Kernochan Centre

During the copyright reform process leading up Bill C-32 (the Copyright Modernization Act), some proponents of reform had advocated broadening the Copyright Act’s fair dealing exception to a US style fair use regime. This was opposed by a wide spectrum of the Canadian creative community. Eventually the proposal was not adopted when Bill C-11 was finally proclaimed into force. See, Barry Sookman and Dan Glover, Why Canada Should Not Adopt Fair Use: A joint submission to the Copyright Consultation

The Australian Law Reform Commission is now studying whether to recommend adopting an open ended fair use exception or a new broad exception for education.…

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A big week in copyright, Kirtsaeng, isoHunt, and Associated Press v Meltwater

Last week was a very eventful one in copyright law with three significant copyright rulings from US courts. The US Supreme Court ruled that importing genuine grey market works into the US does not infringe copyright. The Ninth Circuit affirmed a ruling that the Canadian bitTorrent site isoHunt is liable for contributory copyright infringement. Last, a US District Court ruled that Meltwater’s controversial electronic news clipping service is liable for copyright infringement and is not protected by fair use doctrine.

In Kirtsaeng v John Wilely & Sons, Inc.…

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Yesterday, I gave a talk at the Law Society of Upper Canada’s 17h Annual Intellectual Property Law: The Year in Review program. My talk canvassed developments in copyright in Canada and around the world in 2012. My slides are shown below. The associated paper prepared in collaboration with Glen Bloom, with the help of others, is available here.

The following copyright cases from Canada, the USA, UK and Ireland, Australia, and Europe are dealt with in the paper and slides.…

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Copyright Board refuses CAB request to rescind CSI tariff

The Copyright Board released a decision earlier today dismissing the application of the Canadian Association of Broadcasters (CAB) for a decision reducing the royalties paid by commercial radio stations to CSI, AVLA/SOPROQ and ArtistI by 90 per cent, from November 7, 2012 until the Board renders a decision on the merits in the commercial radio tariff proceeding.

The CAB contended there is no longer a legal basis for a tariff targeting the reproduction of a sound recording, or a performer’s performance or work that is embodied in a sound recording, by commercial radio stations as a result of the recent Bill C-11 amendments to the Copyright Act and the fair dealing decision of the Supreme Court in SOCAN v.…

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