By StuSeegr / Flickr.com

By StuSeegr / Flickr.com

One of my favorite conferences of the year is the Copyright Society of the USA’s Mid-Winter meeting.  CSUSA is an excellent organization all around, but the Mid-Winter meeting is always a treat because it’s a smaller crowd, and we’re always in great places.  This year it was Austin, Texas.  So while I’ll admit that barbecue, tex-mex and live music largely dominated the conversations, we did occasionally talk about some copyright issues worth sharing.  And some of the law getting made outside the United States are definitely worth taking a look at.

The recurrent copyright theme of the two-day event was pretty much, “What the f#*! is happening in Canada??” (And a special thanks to the brilliant Casey Chisick at Cassels Brock for summarizing all of this so well). Canada’s highest court issued 5 copyright opinions in two days last year.  The Canadian Parliament amended and modernized their Copyright Act just a few weeks before.  Here are a couple of things you really really need to know if you or your clients do business in Canada at all:

  1. Courts in the U.S. have been struggling with whether merely making copyrighted works available through a file-sharing site without permission, (before they are actually downloaded by another user) constitutes a violation of the exclusive right of distribution that copyright holders enjoy.  The Copyright Modernization Act in Canada handles that by expressly recognizing a “making available” right.  If you are a content owner, this is fantastic.  The whole Jammie Thomas-Rassett affair would have been settled years ago if we had that down here.  But Parliament giveth, and Parliament taketh away.  The Act also includes express exceptions for private copying, time shifting (okay, we had this one in the U.S. already), educational uses, backup copies, and . . . . wait for it . . . user generated content.  Users, rejoice!  Content owners, I suggest you find the nearest paper bag.  It does not seem to be entirely clear just yet what is meant by “user generated content.”  The Act say that the UGC has to meet the creativity test of copyright, and it can’t be for commercial purposes, and it can’t have a “substantial” adverse effect on the market for the original.  These sound a little like fair use factors, but we’re starting from the position here that using copyrighted content in a user’s own mash-up that he’s going to put up on YouTube is just fine (possibly presuming he doesn’t collect Google ad money for it, anyway).  Let’s just that the Lenz v. Universal Music Group “Dancing Baby” case never would’ve seen the light of day under this Act.
  2. Content owners, breathe deep, ‘cause I’m gonna hit you again.  The Copyright Modernization Act also allows educational institutions free reign to copy and broadcast any work that is “available through the internet,” so long as it is used for an educational or training purpose.  Yes, that’s what I said.*  There are ways around this by introducing technical measures that block copying, or by placing a clear notice on your content that it is not available for the educational copying exception,** or if the user should know that the content was not posted with the permission of the content owner.
                                       *                 I did say that there is an exception for works “available through the internet.” (I feel the need to say it again).  I have no idea what that means, however, and neither does the Canadian copyright bar.  The latest Beyonce CD is probably available on Amazon.com.  Is that “through the internet”?  We’ll have to see.
 
                                    *  *                   For the initiated reading this, when Canada requires copyright owners to place notices prohibiting copying for educational purposes, does that sound like impermissible formality requirements prohibited under the Berne Convention?  On the other hand, we also heard at this conference that one of Pinterest’s methods of allowing owners of photographs to protect their works is through “no pin codes” that can be embedded into websites.  Pinterest is a private company and can offer what it likes, of course, but one does the get the sense that copyright in both countries may be entering into an “opt-out” regime.
 

It’s getting pretty interesting in the UK, too, and the users might not want to break out the champagne just yet.  England has a pending “personal copying” exception that is not unlike Canada’s, and the government has said it is intended to cover “cloud services.”  (Believe it or not, in the U.S., it is still not entirely clear whether uploading your own CD collection into iTunes or Amazon is legal.)  But it hasn’t been enacted yet, so you might not want to buy your plane ticket until we see whether it becomes law in October.  And while you may be able to upload your music at will in the UK in short order, you may not be able to view the album cover, or any other piece of copyrighted content online, without a license.  A case against the content aggregator Meltwater is in front of the UK Supreme Court to give us an answer on that one. Furthermore, the European Courts of Justice have recently decided a case in favor of Sony Records that, ala Golan v. Holder in the U.S., effectively takes a whole body of works out of the public domain and puts them back under copyright protection.

All of this winning and losing on both sides in countries around the world can’t make either the content owners or the users particularly happy.  Especially as the internet continues to shrink the globe, it becomes harder and harder not to do business everywhere.  It’s hard for the big aggregate content owners who are worried about what happens if their music and movies are “available through the internet” in Canada.  But I worry more about the small business trying to sort out new business models as content platforms.  All of these seemingly user-friendly laws are going to be litigated for years before anyone has any idea what they’re worth to anybody.  How many new ideas can wait that long?

But back to the conference for a minute – The Copyright Office kindly supplied us with its annual update of activities  (Fees are going up.  It’s just a question of when).  We also covered User-Generated Content & Social Media, Video Game Law, the First Sale Doctrine, and What Lawyers Need to Know About Ethics & Social Media, with @RayDowd.  We’ll cover (whew) all that in the next post.