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McCarthy Tétrault LLP / mccarthy.ca 11933209 McCarthy Tétrault Advance™ Building Capabilities for Growth Technology Challenges Law RUIT Conference 2012: Technology and Innovation in the 21 st Century Barry B. Sookman [email protected] 416-601-7949 November 3, 2012

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  • 1.McCarthy Ttrault Advance Building Capabilities for Growth RUIT Conference 2012: Technologyand Innovation in the 21st CenturyTechnology Challenges LawBarry B. [email protected] November 3, 2012McCarthy Ttrault LLP / mccarthy.ca 11933209

2. Technology and the law Entertainment Software Association v. Society of Composers,Authors and Music Publishers of Canada, 2012 SCC 34 (ESA vSOCAN) Rogers Communications Inc. v. Society of Composers, Authors andMusic Publishers of Canada, 2012 SCC 35 (Rogers v SOCAN) Society of Composers, Authors and Music Publishers ofCanada v. Bell Canada, 2012 SCC 36 (SOCAN v Bell) Crookes v Newton 2011 SCC 47 National Rugby League Investments Pty Limited v Singtel OptusPty Ltd [2012] FCAFC 59 (April 2012) (National Rugby v Optus) The Copyright Modernization ActMcCarthy Ttrault LLP / mccarthy.ca 119332092 3. Internet as a technological taxi ESA v. SOCAN is a download of a video game a communication within the meaning of Section 3(1)(f) of the Copyright Act? The right to communicate is connected to the right to perform a work and not the right to reproduce permanent copies of the work. A download is merely an additional, more efficient way to deliver copies of the games to customers. The downloaded copy is identical to copies purchased in stores or shipped to customers by mail, and the game publishers already pay copyright owners reproduction royalties for all of these copying activities. The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user. Use of technological neutrality principle to prevent technology from distorting traditional copyright concepts.McCarthy Ttrault LLP / mccarthy.ca 119332093 4. Push/pull and copyright Rogers v. SOCAN: are on-demand transmissions of music streamsas part of online music services communications that are to thepublic? The term telecommunication should be broadly construed so as toapply to communications that do not depend on the types oftechnology used to effect the communication. An on-demand communication of a work to members of the publiccan be a communication that is to the public. The Act applies topush as well as to pull means of transmitting works to the public. The applicability of the communication to the public right is notdependant on the arbitrary choice of business models.McCarthy Ttrault LLP / mccarthy.ca 11933209 4 5. Previews, fair dealing and user rights SOCAN v Bell: Can online music providers make previews of music availableto potential music purchasers as a fair dealing? Fair dealing is a user right. The term research must be given a large and liberal interpretation and caninclude users listening to previews to decide whether to purchase music.Research is not limited to creative purposes. It can be piecemeal, informal,exploratory, or confirmatory. It can in fact be undertaken for no purpose exceptpersonal interest. The relevant perspective when considering whether a dealing is for anallowable purpose is that of the user and not the copier.McCarthy Ttrault LLP / mccarthy.ca 11933209 5 6. Network PVRs a search for the copier National Rugby v Optus: who makes copies of TV shows on a network PVR? Legality of TV Now service enables a subscriber to have free to air televisionprogrammes recorded as and when broadcast and then played back at thetime (or times) of the subscribers choosing on the subscribers compatibleOptus mobile device or personal computer. We consider that Optus role in the making of a copy ie in capturing thebroadcast and then in embodying its images and sounds in the hard disk isso pervasive that, even though entirely automated, it cannot be disregardedwhen the person who does the act of copying is to be identified. So one comes back to the question of construction raised by the word makeand its application in the present setting. As we have indicated, Optus not onlyhas solicited subscriber utilisation of its Service, it has also designed andmaintained a sophisticated system which can effectuate the making ofrecordings wanted for viewing by subscribers. For s 101 purposes, it manifestlyis involved directly in doing the act of copying. It counts as a maker of copiesfor the subscriber. McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11536863 6 7. Links and liability Crookes v Newton A hyperlink, by itself, should never be seen aspublication of the content to which it refers. It is the actual creator or poster of thedefamatory words in the secondary material whois publishing the libel when a person follows ahyperlink to that content. McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11536863 7 8. Copyright reform and technology The Copyright Modernization Act and technology exceptions to permit format shifting, time shifting,making back-up copies, creating and disseminatingUGC works exceptions for ISPs and search engines exceptions for encryption research, security testing,and temporary technical computer processes new right of enablement protect Technological Protection Measures (TPMs) McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 115368638 9. Slides available @barrysookman.com andmccarthy.ca.McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11536863 9 10. VANCOUVER MONTRAL Suite 1300, 777 Dunsmuir Street Suite 2500 P.O. Box 10424, Pacific Centre1000 De La Gauchetire Street West Vancouver BC V7Y 1K2Montral QC H3B 0A2 Tel: 604-643-7100 Tel: 514-397-4100 Fax: 604-643-7900 Fax: 514-875-6246 Toll-Free: 1-877-244-7711 Toll-Free: 1-877-244-7711 CALGARY QUBEC Suite 3300, 421 7th Avenue SW Le Complexe St-Amable Calgary AB T2P 4K91150, rue de Claire-Fontaine, 7e tage Tel: 403-260-3500 Qubec QC G1R 5G4 Fax: 403-260-3501 Tel: 418-521-3000 Toll-Free: 1-877-244-7711 Fax: 418-521-3099 Toll-Free: 1-877-244-7711 TORONTO Box 48, Suite 5300UNITED KINGDOM & EUROPE Toronto Dominion Tower125 Old Broad Street, 26th Floor Toronto ON M5K 1E6London EC2N 1AR Tel: 416-362-1812 UNITED KINGDOM Fax: 416-868-0673 Tel: +44 (0)20 7786 5700 Toll-Free: 1-877-244-7711 Fax: +44 (0)20 7786 5702McCarthy Ttrault LLP / mccarthy.ca 11933209