CIPPIC has enjoyed success in its intervention in the appeal of a denial of default judgement in a file-sharing case: Voltage Holdings LL.C. v Doe #1, 2023 FCA 194.
In 2022, Voltage Pictures sought default judgement against a number of unnamed defendants alleged to have either directly shared files of a movie or to have allowed their internet connections to be used for that purpose. CIPPIC intervened in the motion, arguing that Voltage had not made out its case and in any event was proceeding on an incorrect theory of “authorization” of infringement. Justice Furlanetto refused to grant the motion for the reasons CIPPIC argued.
Voltage appealed, arguing that Justice Furlanetto had erred in two ways:
The Federal Court, for a second time, has denied Voltage permission to proceed in its class lawsuit for file-sharing.
Procedural Background
In 2016, Voltage Pictures LL.C. sought to certify a class proceeding for copyright infringement against a class of unidentified internet subscribers alleged to have been found sharing movies online through the BitTorrent file-sharing protocol. To succeed in bringing the class proceeding forward, Voltage had to convince a judge that the requirements of the test for certification of a class action had been met, namely:
(1) the pleadings disclose a reasonable cause of action;
(2) there is an identifiable class of two or more persons;
(3) the claims of the class members raise common questions of law or fact;
(4) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact;
(5) there is a suitable class representative; and
(6) the plaintiff must propose a workable plan for advancing the litigation and keeping class members informed.
CIPPIC today released a report highlighting several additional problems with the federal government’s proposed Online News Act, which seeks to extract money from large online companies like Google and Facebook to help fund Canadian journalism. The new report, entitled Bad News, highlights how key provisions of the Online News Act may be vague to the point of being unconstitutional, while excluding many of the most dynamic sectors of the evolving Canadian news media landscape from financial support. The report also details how the Online News Act undermines longstanding exceptions to the Copyright Act that are meant to protect the public interest, while also distorting Canadian digital policy away from regulating the toxic, ad-supported business models of major Silicon Valley companies. The reliance the Online News Act places on extracting profits from big tech companies to fund Canadian journalism may well explain the weakness of Bill C-27, the federal government’s much-delayed privacy reform bill, which fails to adequately regulate targeted digital advertising. CIPPIC’s report is authored by student intern Lexie Misterski, who is a second-year law student at the University of Ottawa, and its director, Vivek Krishnamurthy. The full text of our report can be downloaded by clicking here.
CIPPIC has filed its Responding Memorandum of Fact and Law with the Federal Court of Appeal in Voltage v Doe. The appeal involves CIPPIC’s successful intervention in Voltage Pictures’ motion for default judgement in one of its numerous mass copyright infringement proceedings in the Federal Court of Canada. Voltage had sought judgement against 30 anonymous internet subscribers whom Voltage had alleged it had caught sharing one of its movies through BitTorrent and who had failed to file a Statement of Defense.
CIPPIC’s argument comes down to three core positions:
The Supreme Court of Canada today released its long-awaited decision in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30.
Canada amended its legislation in 2012 to, in part, implement Canada’s obligations under the 1996 WIPO Copyright Treaty. The Treaty included an obligation to ensure that authors’ rights include the right to benefit from “pull” technologies - business models that make content available to consumers at a time and place of their choosing (in contrast to “push” technologies like radio, where the broadcaster determines the time and place). At issue was the impact of the "making available" provisions of the Copyright Act: do these entitle copyright owners to payment for making a work available to stream, and a second payment when the stream actually occurs?
Voltage Holdings, LLC V Doe#1 et al, 2022 FC 827, saw the first time a plaintiff in a Canadian copyright filesharing action sought a motion for default judgment against dozens of defendants. Voltage is no stranger to copyright litigation. The American film production company has been the plaintiff in numerous copyright infringement lawsuits around the world. These cases concern unauthorized online sharing of Voltage’s films by unidentified defendants. Voltage often opts to sue internet subscribers who were suspected to have unauthorized copies of Voltage’s films shared through their home networks, even if the subscriber and the person who shared the unauthorized copies were not necessarily one and the same.
In this case as in others, Voltage had taken no steps to identify the alleged direct infringers. Instead, the defendants were internet subscribers that Voltage found using their IP addresses, through information provided to them by ISPs via a Norwich order. These defendants had not responded to Voltage’s previous communications regarding the alleged infringements and had filed no defense. Voltage sought to obtain statutory damages for infringement through a default judgment.
FAQ on privacy and copyright issues raised by photography-related activities.
CETA
In 2002, the European Commission and the Government of Canada agreed to “design a new type of forward-looking, wide-ranging bilateral trade agreement covering…new generation issues and outstanding trade barriers.”
On May 6, 2009, Canada and the European Union (EU) announced the launch of formal negotiations towards the new trade and investment agreement, the Comprehensive Economic and Trade Agreement (CETA).
CETA is intended to build upon previous economic cooperation agreements between Canada and the EU, starting with the 1976 Framework Agreement for Commercial and Economic Co-operation, as well as the 1998 EU-Canada Trade Initiative.
While the scope of CETA is broad, this F.A.Q. will focus on intellectual property issues.
This F.A.Q. was supported by the Social Sciences and Humanities Research Council
The Anti-Counterfeiting Trade Agreement, or "ACTA", is a controversial trade agreement negotiated by a number of nations, including Canada. ACTA addresses standards of enforcement of intellectual property rights. ACTA's content has the potential to impact civil liberties and divert public resources towards the enforcement of private rights.
Bill C-61 was a bill to amend Canada's Copyright Act. The bill died on the order paper with the election of 2008. However, the present government has indicated in its Throne Speech that it intends again to introduce legislation to amend the Copyright Act. Accordingly, we keep this FAQ available to the public.
Over the past few years, file-sharing - i.e., the sharing of files over peer-to-peer (P2P) networks - has become a popular way for music lovers to sample and gather music from a wide range of performers. However, most of the music downloaded and shared by consumers is copyrighted and hence, subject to laws limiting the rights of consumers to reproduce and distribute it.
Digital Rights Management (DRM), also sometimes called ECMS, or electronic copyright management systems, are technologies designed to automatically manage rights in relation to information. This can include preventing copyright works and other information from being accessed or copied without authorization and establishing and enforcing license terms with individuals.
Copyright is a system of laws for promoting both the creation of and access to artistic, literary, musical, dramatic and other creative works. It is usually presented as a balance between promoting the public interest in the encouragement of the creation and dissemination of works of the arts and intellect, and obtaining a just reward for the copyright holder
Bill C-60 was a proposal to amend Canada's Copyright Act. The Bill died on the order paper with the fall of the Martin government in 2005. However, the issues that motivated the government to table this Bill remain with us.
Copyright law reform
SOCAN v. Bell (2011)
CIPPIC is seeking leave to intervene is SOCAN v. Bell, a copyright case that will consider the scope of fair dealing for research purposes.
Blacklock’s Reporter v AG Canada Case opens in Federal Court
On March 4, 2004 the Supreme Court of Canada released its decision in the case of Law Society of Upper Canada v. CCH Limited [2004] S.C.J. No. 12, (2004) 236 D.L.R. (4th) 395 holding (i) that the Copyright Act's fair dealing exception should be liberally interpreted to prevent undue restraint of users' rights and (ii) that the provision of self-service photocopiers does not equal an infringement of copyright.
The Supreme Court of Canada heard arguments on Dec.3, 2003 from Internet Service Providers (ISPs) and music industry representatives in an important case that will decide, among other things, the extent to which Canadian ISPs are liable for content flowing through their networks, and the extent to which foreign actors who target communications to Canadians may be liable under the Canadian Copyright Act.
CIPPIC was granted leave to intervene before the Federal Court of Appeal in Teksavvy Solutions Inc v Bell Media Inc, FCA File No A-440-19, an appeal of an order compelling Canada's ISPs to block access to a website accused of copyright infringement. The order under appeal is novel, and if approved will have far-reaching implications for free expression and balanced copyright, creating an extraordinary new censorship power that the applicants have sought in trade negotiations, at parliament, and at the CRTC, without success.
The intervention order itself adopts a thoughtful, but decidedly novel approach in its application of the Federal Court of Appeal's uniquely rigorous test for public interest intervention. As set out in CIPPIC's initial motion to intervene, dated February 3, 2020 (paras 5-12) and affirmed by the case management judge in a brief and pointed direction dated April 24, 2020, the test for intervention requires extensive coordination among different public interest interveners to avoid duplication. In light of the interveners' demonstrably successful efforts to coordinate, the Court took the exceptional step of merging many of the parties, allowing CIPPIC to file a joint intervention with our close colleagues at the Canadian Internet Registration Authority (CIRA). The British Columbia Civil Liberties Association (BCCLA) was also granted leave to elaborate on its detailed proposed submissions regarding the need to account for freedom of expression when issuing orders that interfere with access to expressive content. The intervention order is also innovative for its willingness to depart from a categorical approach to classifying proposed interveners, and instead consider the particular characteristics of specific parties and their historical record of intervention. This allows for a more thoughtful and contextual approach to granting intervener status, while interveners will need to be more cautious in implementing the Court's conditions of intervention or risk developing a negative track record and threatening future interventions. Three other parties seeking to intervene on behalf of intellectual property rights holders were also granted leave to intervene, and merged into a single intervention. CIPPIC is represented by Alyssa Tomkins and James Plotkin of Caza Saikaley, SRL/LLP. UPDATE: On August 3, 2020, CIPPIC and CIRA filed their joint Facta. A hearing has not yet been scheduled in this matter.
Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0
Edit: Decision released! (November 26)
In a
7-2 decision, the Court upheld the Copyright Board's decision to characterize broadcast-incidental copies as "reproductions" for the purposes of the
Copyright Act, but overturned the Board's method of calculating fees payable for such activities. The majority found no reason to depart from long-standing caselaw on the character of ephemeral copies as reproductions for the purposes of the Act, and concluded that the separation of synchronization and broadcast‑incidental licences does not offend technological neutrality or impose new layers of protection or fees based solely on technological change. However, the majority concluded that the Board failed to consider the principles of technological neutrality and balance in valuing the ephemeral licence. The Court concluded that balance between user and right‑holder interests requires that the Board assess the respective contributions of the user and the copyright‑protected works to the value enjoyed by the user. Factors relevant to this balance include:
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the risks taken by the user,
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the extent of the investment made by the user in the new technology, and
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the nature of the copyright protected work’s use in the new technology.
National Post/Warman v. Fournier, Federal Court of Appeal, File Nos. A-394-12 & A-395-12
Voltage v. Doe, Federal Court, 2013
CIPPIC has filed a Statement of Defense on behalf of its client, Geolytica, in response to a lawsuit filed by the Canada Post Corporation in the Federal Court of Canada (File No. T-519-12) claiming that it owns copyright in its database of postal codes and that Geolytica has infringed that copyright by "crowd-sourcing" data for its own database of postal codes mapped to street addresses.
The case raises fundamental copyright issues, including the scope of protection afforded compilations of data, the subsistence of copyright in factual address identifiers such as postal codes, and the availability of defenses such as fair dealing to developers of research tools such as Geolytica's Canadian Postal Code Geocoded Dataset. The case will have significant implications for downstream innovators and analysts looking at using datasets for research and to facilitate the research of others.
Copyright Pentalogy (SCC, 2012)
Following through on its threat, the Canadian Recording Industry Association (CRIA) launched a lawsuit in the Federal Court (Trial Division), in Toronto Ontario, on February 10, 2004 against 29 unnamed alleged music file-sharers.
Canada's 2010 Digital Economy Consultation
To better understand the basics of copyright law, Prof. Samuel E. Trosow (Western Ontario University)
presents to us his master class: Introduction to Copyright Law and prospects for new legislation.
In 2005, parliament considered revisions to the
Copyright Act in order to ensure that Canada's copyright framework remained relevant in the rapidly changing digital environment. The Canadian government introduced a long-awaited bill to amend the Copyright Act on June 20, 2005.
As Parliament considers legislated protection of Digital Rights Management (DRM) technologies (designed to detect and stop copying of digital works), the Privacy Commissioner of Canada has indicated her intent to "initiate a dialogue" with the departments of Heritage Canada and Industry Canada "to ensure that privacy risks" associated with any copyright legislation "are addressed." Some of the Commissioner's provincial counterparts have signaled their support of her initiative.
On May 12, 2004 the Standing Committee on Canadian Heritage, chaired by Sarmite D. Bulte, M.P. released an interim report listing a number of recommended reforms to Canadian copyright law. The first round of hearings for the report were launched in October 2003 where the Committee heard from a panel of invited witnesses including representatives from Canadian Heritage, Industry Canada, the Canadian Internet Policy and Public Interest Clinic, the Canadian Association of Internet Providers and the Canadian Motion Picture Distributors Association among others. As a result of these consultations, the Committee came up with a number of recommendations.
In September 2003, the House of Commons Standing Committee on Canadian Heritage ("Heritage Committee") began its review of the Section 92 report published by Industry Canadain October 2002.
