making available right Archives

Supreme Court of Canada confirms all acts of making available are covered by Copyright Act: SOCAN v ESA

Barry Sookman Supreme Court appellant lawyer

In a decision just released in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, the Supreme Court of Canada confirmed that Canada fully implemented its WIPO copyright Internet Treaty “making available” obligations through a combination of the communication to the public, reproduction, and authorization rights. In doing so, the Court held that any unauthorized act of making a work available online, and any subsequent unauthorized streaming or downloading of the work, are infringing.…

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Court of Appeal rules CASL is constitutional and releases decision on the making available right

The Federal Court of Appeal released two important decisions earlier today. First, in the Compufinder decision, it ruled that Canada’s anti-spam law (CASL) is constitutional. More specifically, if found that CASL does not violate the Canadian Charter of Rights and Freedoms right to freedom of expression. It also found that the law was intra vires within federal jurisdiction.

The finding that CASL dd not violated the Charter is a surprising one to anyone who understands its scope and impacts on commercial speech.…

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Hard lessons in dataset licensing to create commercial products: 77m v Ordnance Survey

If you are interested in database licensing, the intrigue of how complex geo-spatial based services are developed, electronic mapping and polygons, the legality of scraping, how online terms governing databases are construed, and database rights, then the recent UK decision in 77m Ltd v Ordnance Survey Ltd [2019] EWHC 3007 (Ch) (08 November 2019) is for you.

The dispute in the case was between a start-up company 77m and Ordnance Survey (OS), the national mapping agency of Great Britain. 77m created a dataset called Matrix consisting of an up-to-date, detailed and accurate list of the geospatial coordinates of all the residential and non-residential addresses in Great Britain containing 28 million records.…

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Developments in computer, Internet and e-commerce law: the year in review (2018-2019)

I gave my annual presentation yesterday to the Toronto computer Lawyers’ Group on “The year in review in Computer, Internet and E-Commerce Law”. It covers the period from June 2018 to June 2019. The developments include cases from Canada, the U.S. the U.K., EU, Australia, South Africa, India and other countries.

The developments are organized into the broad topics of:

Privacy / Big Data / AI
Employee / HR
E-commerce / Online Agreements
Online Remedies / Governance / Jurisdiction
Copyright

The cases and other documents referred to are below.…

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Developments in computer, Internet and e-commerce law: the year in review (2017-2018)

I gave my annual presentation today to the Toronto computer Lawyers’ Group on “The year in review in Computer, Internet and E-Commerce Law”. It covers the period from June 2017 to June 2018. The developments include cases from Canada, the U.S. the U.K., Singapore, Australia, and other countries.

The developments are organized into the broad topics of:

Jurisdiction/Online Remedies/Conflicts of Laws
Hyperlinks/Search Results/Computer Generated Content
e-Commerce & Online Agreements
Technology Contracting
Privacy
Copyright
CASL.

The cases referred to are listed below.…

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Kodi box add-on distributor loses copyright appeal: Bell v Adam Lackman dba TVADDONS.AG

Illegal streaming of TV and movie programming fueled by the sale of illicit streaming devices (ISDs) (such as fully loaded Kodi boxes) and websites that make available to the public software add-ons configured and marketed to facilitate receipt of pirate streams is a real problem in Canada. The most effective way of reducing this type of illegal streaming is by the use of website blocking, something the CRTC will have to consider in the FairPlay Canada website blocking application.

In the meantime, the less effective but still very important ground game against the distribution of ISDs and software add-ons continues.…

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Why crackdown on pirate set-top boxes is good for innovation: a reply to Michael Geist

Last week the Federal Court granted an interlocutory injunction restraining ITVBOX.NET, WATCHNSAVE INC, MTLFREETV.COM and others from selling set-top boxes preloaded with software. The software was specifically adapted to enable purchasers to stream and download infringing copies of programs made available by Bell, Bell Expressvu, Rogers, and Videotron on a subscription basis. The devices were advertised and promoted by prominently emphasizing these capabilities and as a way to obtain this content without paying.

The decision by Justice Tremblay-Lamer in Bell Canada v ITVBOX.NET…

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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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Mihály Ficsor on Svensson and communications to the public

The Svensson opinion of the CJEU has gained considerable attention. The focus has primarily been on the controversial topic of whether hyperlinks to a work on the Internet should be considered as making the work available and hence be part of the author’s right of communication to the public. However, the opinion also further extends precedents of the CJEU how to determine whether communications are “to the public”. In a seminal paper, Dr. Ficsor the former Deputy Director General of WIPO carefully examines these precedents and points out errors in the opinions.…

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Blocking orders against ISPs legal in the EU: UPC Telekabel Wien

European courts have ordered ISPs to block access to pirate file sharing sites in other countries for years. The jurisdiction for doing so is Article 8(3) of the EU Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001) which is transposed into the laws of EU Member States. The courts have considered these orders to represent a reasonable balance between the interests of copyright holders, intermediaries, and end users. See, Keeping The Pirate Bays at Bay.…

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