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McCarthy Tétrault Advance™ Building Capabilities for Growth

RUIT Conference 2012: Technology and Innovation in the 21st Century Technology Challenges Law
Barry B. Sookman 416-601-7949
McCarthy Tétrault LLP / 11933209

November 3, 2012

Technology and the law
¬ Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (ESA v SOCAN) ¬ Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 (Rogers v SOCAN) ¬ Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (SOCAN v Bell) ¬ Crookes v Newton 2011 SCC 47 ¬ National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 (April 2012) (National Rugby v Optus) ¬ The Copyright Modernization Act

McCarthy Tétrault LLP / 11933209


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 Tétrault LLP / 11933209


Push/pull and copyright
¬ Rogers v. SOCAN: are on-demand transmissions of music streams as part of online music services communications that are “to the public”? ¬ The term “telecommunication” should be broadly construed so as to apply to communications that do not depend on the types of technology used to effect the communication. ¬ An on-demand communication of a work to members of the public can be a communication that is to the public. The Act applies to push as well as to pull means of transmitting works to the public. ¬ The applicability of the communication to the public right is not dependant on the arbitrary choice of business models.

McCarthy Tétrault LLP / 11933209


Previews, fair dealing and user rights
¬ SOCAN v Bell: Can online music providers make previews of music available to 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 can include 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 except personal interest.” ¬ “The relevant perspective when considering whether a dealing is for an allowable purpose is that of the user and not the copier.”

McCarthy Tétrault LLP / 11933209


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 television programmes recorded as and when broadcast and then played back at the time (or times) of the subscriber’s choosing on the subscriber’s compatible Optus mobile device or personal computer. ¬ “We consider that Optus’ role in the making of a copy – ie in capturing the broadcast and then in embodying its images and sounds in the hard disk – is so pervasive that, even though entirely automated, it cannot be disregarded when 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 “make” and its application in the present setting. As we have indicated, Optus not only has solicited subscriber utilisation of its Service, it has also designed and maintained a sophisticated system which can effectuate the making of recordings wanted for viewing by subscribers. For s 101 purposes, it manifestly is involved directly in doing the act of copying. It counts as a maker of copies for the subscriber.”

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / 11536863


Links and liability
¬ Crookes v Newton ¬ “A hyperlink, by itself, should never be seen as “publication” of the content to which it refers.” ¬ “It is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content.”

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / 11536863


Copyright reform and technology
¬ The Copyright Modernization Act and technology ¬ exceptions to permit format shifting, time shifting, making back-up copies, creating and disseminating UGC 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 Tétrault S.E.N.C.R.L., s.r.l. / 11536863


Slides available @ and


McCarthy Tétrault S.E.N.C.R.L., s.r.l. / 11536863


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