Online Copyright Liability

For IP lawyers, these are interesting times. It isn’t often that proposed intellectual property legislation makes front-page news and in Canada, the debate over Bill C-61 has been front and centre. There is ample coverage of the proposed law in the media across the country since the bill was introduced last month.  

You might think that all the debate is purely academic: sure, if you download a CD to your iPod and then give the CD away to your brother-in-law, a record company can claim infringement …in theory, but would they really bother?  (If you don’t believe that this is infringement under the proposed law, see here: Section 29.22(4) )

The answer is this, if the law contains a useful tool, copyright owners will use it.  To see how the new tools might be used, we can look to the US, where the DMCA notice-and-takedown system permits copyright owners to send notices of alleged infringement, and demand that the infringing content be removed.  In one recent US case, the notices were filed by Associated Press against independent bloggers for paraphrasing AP news stories in discussion forums.  The message was clear: don’t cut-and-paste or paraphrase any part of our news stories, or we’ll come after you for infringement.   “Fair use” or “fair dealing” exceptions should provide a defence to infringement claims, but of course the boundaries of that concept are open to interpretation.  AP later backed-down and promised certain “guidelines” on how to refer to AP news. 

In the meantime, the take-home message is this: when the US DMCA was introduced, its drafters might never have imagined that a news organization would send take-down notices for online references to its news stories – but the tool was available in the toolbox, and it was used.  Whatever is in Bill C-61 will also be used, sooner or later. 

Calgary – 11:45 MST 

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