Sookman Osgoode Technology Focus Internet and IT

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McCarthy Tétrault LLP / mccarthy.ca 11

McCarthy Tétrault Advance™ Building Capabilities for Growth

Osgoode: Intellectual Property Law& Technology Program

September 6, 2011

Barry B. [email protected]

10696725

Technology Focus: Internet and IT




Key Challenges¬ The House of Commons Sub-Committee on the Revision of

Copyright ( A Charter of Rights for Creators , October, 1985)¬ ―computer age has placed copyright principles themselves in a

radically new environment with unpredictable consequences.‖

¬ Supporting Culture and Innovation: Report on the Provisions and

Operation of the Copyright Act (October 2002)¬ ―Today more than ever, copyright policy and law are being

challenged by new and rapidly involving technologies, globalcompetition, and the growing importance of knowledge as afactor in economic success and cultural developments .‖




Key Challenges¬ Computer Associates International Inc. v. Altai Inc. , 23 U.S.P.Q.2d

1241 (2nd Cir. 1992):¬ ―In recent years, the growth of computer science has spawned

a number of challenging legal questions, particularly in the fieldof copyright law. As scientific knowledge advances, courtsendeavour to keep pace, and sometimes —as in the area ofcomputer technology —they are required to venture into lessthan familiar waters.‖

¬ ―Generally, we think that copyright…— with its indiscriminatingavailability —is not ideally suited to deal with the highlydynamic technology of computer science. Thus far, many ofthe decisions in this area reflect the courts' attempt to fit theproverbial square peg in a round hole.‖




Key Challenges

¬ Kirkbi AG v. Ritvik Holdings Inc ., [2005] 3 S.C.R. 245. per Lebel J.¬ ―The vast and expanding domain of the law of intellectual property is

going through a period of major and rapid changes. The pressures ofglobalization and technological change challenge its institutions, itsclassifications and sometimes settled doctrines…‖

¬ ―Jurisprudence attempts to address — sometimes with difficulty — theconsequences of these broad social and economic trends.‖

¬ ―The economic value of intellectual property rights arouses theimagination and litigiousness of rights holders in their search forcontinuing protection of what they view as their rightful property. Sucha search carries with it the risk of discarding basic and necessarydistinctions between different forms of intellectual property and theirlegal and economic functions.‖




Key Challenges

¬ All concepts are being re-examined in light of technological change

¬ Originality:

¬ user created/computer generated works

¬ Telsra (yellow pages)

¬ machine translations

¬ news aggregators

¬ Subject matter/scope of protection for functional works

¬ APIs/interfaces SAS; Oracle v Google

¬ Exclusive rights

¬ what is a reproduction

¬ buffer copying (Satellite Radio)

¬ browsing (Meltwater)

¬ collective works (Robertson)5




Key Challenges


¬ communication to the public

¬ are downloads of works a ―communication‖ or transmission(Tariff 22; US v ASCAP)

¬ are downloads to ―the public‖ (Tariff 22; Cablevision)

¬ Networked PVRs?¬ Cloud service offerings?

¬ Authorization

¬ Intermediary liability for customer infringements (Satellite Radio)

¬ ISPs and notice and takedown (Tariff 22)

¬ ISPs and graduated response (iiNet).

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Key Challenges


¬ Jurisdiction

¬ communication to the public (Tariff 22)

¬ reproductions (Satellite Radio)

¬ Google (France – scanning books)

¬ Google (Belgium – Google news)

¬ Moral rights

¬ Google (Belgium – Google news)

¬ user generated content

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McCarthy Tétrault LLP / mccarthy.ca

Key Challenges¬ All concepts are being re-examined in light of technological change

¬ Fair dealing¬ what is research (SOCAN Tariff 22)

¬ how to apply the framework (SOCAN Tariff 22/ AccessCopyright)

¬ relative importance of factors

¬ What to do about:

¬ personal use exceptions:

¬ format shifting

¬ time shifting

¬ UGC works

¬ TPMs

¬ online file sharing

¬ orphan works 8




Some Final Remarks:

¬ Copyright is a crucial instrument in creating incentives for the

production and dissemination of works¬ The copyright landscape is in flux

¬ There is a recognition that copyright needs reform

¬ The copyright landscape will continue to be in flux

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Sookman Osgoode Technology Focus Internet and IT