The Copyright Act lays out permissible exceptions to copyright infringement in its section on fair dealing: If you read the Copyright Act, you’ll notice that there are no specifics about how much of a work can be used for these purposes, such as a particular number of lines or paragraphs. There must also be some legal capacity to control the activity of the primary infringer. Marginal note:Research, private study, etc. The bad news is that there are many people out there who don’t understand the concept of copyright or don’t wish to acknowledge copyright. Canada’s copyright notice-and-notice system, which came into force in 2015, allows copyright owners to forward allegations of online infringement through internet service providers (ISPs). Even worse, it can lead to several criminal charges or a lawsuit filed in a federal court. [6] In the court’s analysis, it concluded that "authorization" in Canadian Copyright law has the following characteristics: However, some aspects of authorization remain unclear. The minimum fine for non-commercial infringement is $100 and … [13], S. 27(2) It is an infringement of copyright for any person to. This copyright protection not only exists in Canada but extends to other countries. CCCH Canadian Limited v. The Law Society of Upper Canada, 2008 SCJ 12 at paras 41-46. She has run an IT consulting firm and designed and presented courses on how to promote small businesses. [16] The issue is whether parallel importation is secondary infringement pursuant to s. 27(2)(e). A person is a secondary infringer where he knows or should have known that a work either a) infringes a copyright or, b) would infringe a copyright had it been made in Canada (hypothetical infringement test) and, without the consent of the copyright owner he does anything set out in S. 27(2) of the Copyright Act [see below]. (e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c), a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.[14]. [1] According to University of Toronto Law Professor, Ariel Katz, the decision in CCH is policy driven: preventing photocopying in libraries would shift the balance of copyright too far in favour of owner’s rights, and unnecessarily interfere with the proper use of copyrighted works for the good of society as a whole. [5] The court found that it did not. Patents protect inventions, such as new processes, equipment or manufacturing techniques. Drassinower, Abraham, "The Art of Selling Chocolate: Remarks on Copyright's Domain," in Michael Geist ed, "Radical Extremism" to "Balanced Copyright" (Toronto: Irwin Law Inc, 2010) at 127. That is, there is a presumption that there is no knowledge of the infringing activity of potential primary infringers. sold from the websites above are small computers that come preloaded with software like the Android™ operating system A copyright owner has the right to authorize any of the acts found in S. 3(1) of the Copyright Act [see below]. (f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication. Related Provisions in the Canadian Copyright Act, Supreme Court Definition of "Authorization": CCH v LSUC, Authorization and Peer-to-Peer Networks: BMG Canada v John Doe, The Supreme Court of Canada on Secondary Infringement: Euro-Excellence v Kraft Canada. The court said that, according to S. 80(1) [9] of the Copyright Act, making a personal copy of a sound recording for one's own private purposes is not infringement. Authorization is a question of fact that depends on the circumstances of each particular case and can be inferred from acts that are less than direct and positive, including a sufficient degree of indifference. This means that a copyright owner does not have the right to prevent parallel importation if he owns the copyright in both countries, since he does not have the general right to distribute (so cannot exclude others). The good news; copyright is inherent when an original work is created. David Vaver, Intellectual Property Law: Copyright Patents Trade-Marks, 2d ed (Toronto: Irwin Law Inc., 2011) at 194-195. However, if the parties involved can’t reach an amicable settlement, it may be time to take the offenders to court: In summary, copyright protection is automatic in Canada when you create an original work. According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users. However, because there are so many people who copy works without permission, you may want to take additional steps to let them know your work is copyrighted. Both proceedings were small scale and involved foreign copyright holders. David Vaver, Intellectual Property Law: Copyright Patents Trade-Marks, 2d ed (Toronto: Irwin Law Inc., 2011) at 190. The court disagreed, and suggested that there is no difference between making personal copies and making a shared folder. Where the parallel importation is merely an, Justice Fish: Concurs with Justice Rothstein with respect to the exclusive licensee issue, but does not necessarily agree than. BMG Canada Inc v John Doe 2004 FC 488, [2004] 3 FCR 241. (For example, if there is a sufficient degree of control, passivity may be taken as authorization). NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. Conceptually speaking, copyright infringement analysis in a given factual scenario involves three basic steps – (i) establishing that the work is protected under copyright, exists; (ii) the alleged infringing act falls within the scope of exclusivity offered for that ... 6 2004 (1) SCR 339 (Canada) Thus, he should not be able to prevent parallel importation merely by assigning his copyright. Here’s a primer to answer your copyright questions. photocopier) that could be used to infringe copyright]. It … Section 27(2)(e) covers only copyrighted materials and not merely ancillary attachments to the products. Literary works, for instance, include computer programs as well as poems. Fees for registering a copyright, registration of an assignment and other services. A person does not authorize infringement by authorizing the mere use of equipment [such as services and technologies that have a dual use (one which is infringing and one which is not, i.e. Drassinower, Abraham, "The Art of Selling Chocolate: Remarks on Copyright's Domain," in Michael Geist ed, "Radical Extremism" to "Balanced Copyright" (Toronto: Irwin Law Inc, 2010) at 126. This is because it allows you to make a civil claim if your website suffers copyright infringement. (g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan, (h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, and. What are the remedies for copyright infringement? (i)author, in the case of a work, 2.2. (e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work. Moreover, knowledge is not enough to attach liability. While "authorization" is considered a primary infringement (rather than secondary infringement, which will be discussed later), it is not clear whether liability for authorizing infringement requires that actual infringement has taken place. The most common type of copyright infringement is copying part or all of a copyrighted work without permission. 1. Drassinower, Abraham, "The Art of Selling Chocolate: Remarks on Copyright's Domain," in Michael Geist ed, "Radical Extremism" to "Balanced Copyright" (Toronto: Irwin Law Inc, 2010) at 121. BMG Canada Inc v John Doe 2004 FC 488, [2004] 3 FCR 241 at para 27. the wrappers). BMG Canada Inc v John Doe 2004 FC 488, [2004] 3 FCR 241 at para 24-25. In cases of indirect infringement, individuals can be held liable for infringement even where they did not personally make the copies of the copyrighted subject-matter. CCCH Canadian Limited v. The Law Society of Upper Canada, 2008 SCJ 12 at para 38. 29Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright. Thus, the presumption can be rebutted if it is shown that a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement. Copyright in Canada: How to Protect Your Copyright. Internationally, renowned artist Jeff Koons in the process of creating an exhibit on the banality of everyday items, ran across Rodgers’ photograph and used it to cre… In the best case scenario, when copyright infringement occurs, an action such as a cease and desist letter solves the problem. [12] Some experts, such as University of Toronto Law Professor Ariel Katz, suggest that the analogy to CCH is flawed, since library use is far more constrained and requires higher transaction costs than does Internet use. (iii)maker, in the case of a sound recording, … If a person turns a blind eye or honestly but mistakenly believes the goods are non-infringing, he will still be presumed to have the requisite knowledge. Justice Bastarache: Finds that a copyrighted logo should not prevent the sale/trade of a non-copyrighted chocolate bar. There can only be secondary infringement if there has been a primary infringement. Susan Ward wrote about small businesses for The Balance Small Business for 18 years. The key word here, however, is "substantial". [3], S. 3. With four judgments, it is hard to grasp where the law lies. Under Canadian law, Bell, Rogers, and other internet providers are required to forward copyright infringement notices from the rights holders to alleged file-sharers. [20] That is, if the copyright had been assigned to Kraft Canada (rather than exclusively licensed), parallel importation of a genuinely copyrighted product (rather than the incidental copyright of the chocolate wrapper) would be an infringement according to S. 27(2)(e). (a) to produce, reproduce, perform or publish any translation of the work. [11] According to the case, "before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying." David Vaver, Intellectual Property Law: Copyright Patents Trade-Marks, 2d ed (Toronto: Irwin Law Inc., 2011) at 191. ... U.S. copyright fines and penalties do not apply in Canada. CCCH Canadian Limited v. The Law Society of Upper Canada, 2008 SCJ 12 at para 4. 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