Technological change and copyright

1. 1 McCarthy Tétrault Advance™Building Capabilities for Growth Osgoode: Intellectual Property Law & Technology Program Technology Focus: Internet and IT Barry B. Sookmanbsookman@mccarthy.ca416-601-7949 September 6, 2011 1 10696725

2. 2 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, global competition, and the growing importance of knowledge as a factor in economic success and cultural developments.” 2

3. 3 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 field of copyright law. As scientific knowledge advances, courts endeavour to keep pace, and sometimes—as in the area of computer technology—they are required to venture into less than familiar waters.” “Generally, we think that copyright…—with its indiscriminating availability—is not ideally suited to deal with the highly dynamic technology of computer science. Thus far, many of the decisions in this area reflect the courts' attempt to fit the proverbial square peg in a round hole.” 3

4. 4 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 of globalization and technological change challenge its institutions, its classifications and sometimes settled doctrines…” “Jurisprudence attempts to address — sometimes with difficulty — the consequences of these broad social and economic trends.” “The economic value of intellectual property rights arouses the imagination and litigiousness of rights holders in their search for continuing protection of what they view as their rightful property. Such a search carries with it the risk of discarding basic and necessary distinctions between different forms of intellectual property and their legal and economic functions.” 4

5. 5 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

6. 6 Key Challenges All concepts are being re-examined in light of technological change 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). 6

7. 7 Key Challenges All concepts are being re-examined in light of technological change 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 7

8. 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/ Access Copyright) relative importance of factors What to do about: personal use exceptions: format shifting time shifting UGC works TPMs online file sharing orphan works 8

9. 9 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