The new Copyright Act adds a new section 30.02 that virtually equates digital reproduction of works to photocopying (i.e. reprographic reproduction) for educational institutions.
The general idea is that if an educational institution has a license to make photocopies of works, then the institution may also make digital reproductions of these works and communicate such reproductions by telecommunication for an educational or training purpose.
The person who received such digital reproduction of a work is allowed to print one copy of it.
The educational institution is required to pay to the collective society the same license fees as in the case of the conventional photocopying license and to take steps to prevent unauthorized dissemination of the digital reproduction of the work.
Copyright owners whose rights are represented by a collective society that is authorized to grant licenses to photocopy these authors’ works may refuse to authorize the collective society to enter into digital reproduction agreements with respect to their works, but the default rule is that such permission is deemed to be granted.
Based on the provisions of paragraphs 30.02(4)(a) and 30.02(4)(b), it appears that this section will be of lesser importance once separate tariffs for digital reproduction have been certified.
This section also severely limits the remedies for unauthorized use of the works.
Because copyright owners at least have an opportunity to opt out from the application of this section, I would be happy with it if not for two issues:
First, I do not understand the reasoning behind curtailing the remedies of copyright owners in case their rights are infringed beyond what the exception has already taken away from them; and
Second, I would prefer some clarification as to how this new section is supposed to coexist with the addition of the word “education” to section 29 of the Act.
Speaking of the latter, I am getting many calls and emails with questions about whether this or that use can be justified under the “education” exception. Some are very creative in trying to justify what appears to be blatant copyright infringement under the pretense of having educational purposes.
If specific sections of the Copyright Act are meant to limit the application of s. 29 in that educational purposes are limited to those specific instances that are listed elsewhere in the Act, then the problem is of a much smaller caliber (albeit I still disapprove of the expansion of so-called “user rights”). If, on the other hand, s. 29 is to stand on its own in addition to all these specific instances then we are about to open the Pandora’s box.
BOTTOM LINE: Time will tell.
PS. The new Section 30.03 deals with tariffs. In a language whose clarity is only superior to that of the Income Tax Act, an attempt is made to specify what happens if a new tariff is introduced for digital reproduction or if the educational institution enters into an agreement that specifically deals with digital reproduction. The new section 30.03 is supposed to make it clear what happens with the license fees that the educational institution was paying under s. 30.02. The new section 30.03 may contain an answer to this question, but make it clear it does not...
On February 13, 2013, I delivered a seminar on intellectual property at the New York Institute of Technology in Vancouver.
Great to see so many aspiring students with lit-up eyes who came to learn about IP.
It is my pleasure to share with you a series of educational videos on trademarks that I have just created.
The total running time is under an hour, and if you are a small business owner I guarantee that watching these videos will be well worth your time.
No need to register, sign up or anything. Just watch the videos and learn.
P.S. For those interested, I wrote the music you hear in the intro and the outro when I was 13. This is the song that got me to travel to the U.S. in 1988 as part of the Soviet-American mission to promote peace. I was practicing on my drums and for some reason it appeared to me that this song would make a perfect corporate anthem for Mincov Law Corporation. So there you go!
I have recently attended a great seminar on business licensing.
Indeed, licensing can be a great way to grow a business and widen one’s streams of passive income.
Licensing has an obvious advantage over franchising in that it imposes substantially less mandatory requirements over the licensor.
It may appear that licensing is some kind of franchising-lite.
Whether or not it is so, it is very important to keep one thing in mind.
By definition, a license is a permission to do something that no one would have the right to do without such permission. A license is not a right, it’s a permission.
The corollary from this definition is that for there to be a valid license, the license should cover something that you can legally stop others from doing. Just like it would be very difficult to enforce a license that allows someone to breathe in exchange for a 10% royalty, it would be difficult to enforce a license pursuant to which a business is licensing something that is readily available to the public without any restrictions.
Aside from properly documenting your intellectual property in the form of copyright, trademarks and patents, you should also take great care in keeping your secrets secret. If you fail to secure your confidential information, you may one day find yourself in a courtroom with a judge who would have little sympathy to your attempts to force a competitor pay you for something that you neglected to protect. Unless your IP is properly protected, you cannot license it out. Let me rephrase that. You may be able to license it out, but it would be difficult for you to enforce the terms of such license.
Intellectual property is an important (and sometimes, the most important) asset of your business. Whether or not your strategy involves licensing your business systems to others, you should always keep in mind that your actions have consequences.
If building business assets is a part of your strategy (and it should be), then having a meaningful IP strategy is a must!
The story of people registering domain names, user names, screen names and other internet names confusing with famous trademarks of others is as old as the internet itself.
Historically, ISPs and website operators had done very little to address rights and lawful interests of trademark owners, which resulted in massive litigation costs for the first plaintiffs who needed to reclaim their stake in .COM domain names.
In 1999, ICANN implemented the Uniform Dispute Resolution Policy that gave trademark owners a time- and cost- efficient way to deal with straightforward cases of cybersquatting. UDRP policy and rules, along with supplemental rules of several UDRP providers, such as WIPO and NAF, are sophisticated documents detailing various aspects of substance and procedure.
It may be hard to believe today but Twitter has only been around since 2006. With its revolutionary format, Twitter has now become the platform that allows over 500 million registered users to exchange over 340 million messages a day.
No wonder that it attracted those who wanted to capitalize on somebody else’s goodwill! With the prevalence of Twitter on the web, it was only a matter of time before a trademark owner would find itself unable to register a Twitter handle corresponding with its trademark.
In result, Twitter came up with its Trademark Policy to address such disputes.
Unlike UDRP, Twitter trademark policy is very brief and leaves a lot of discretion to Twitter. The gist of the policy is that if Twitter receives a “report of trademark policy violations from holders of federal or international trademark registrations”, Twitter will review the account and if Twitter finds that there is a clear intent to mislead others or if the account is in fact misleading, then Twitter may suspend the account and release the username for the trademark holder’s active use.
The policy clarifies that Twitter users should not use someone else’s trademarks as usernames, profile names, profile photos, header photos, background images, or otherwise create an association between their Twitter pages and comments and such trademarks. For fan pages, Twitter users are required to include a statement to distinguish their Twitter profile from the real company by adding a disclaimer in the 160-character bio, such as “Unofficial Account”, “Fan Account”, “Not affiliated with…”
The procedure for reporting trademark policy violations is very simple: the interested party must provide the following information: username of the reported account, the trademark owner’s company name, the trademark owner’s twitter account (if there is one), the trademark owner’s website, the trademark, trademark registration number and country of trademark registration.
Interestingly, trademark policy violations can only be sent from an email address of the company owning the trademark. For example, if Apple wanted to reclaim the @ipad username, the trademark policy violation request must have been sent from an firstname.lastname@example.org. In other words, if Apple wanted to have a lawyer submit the report, Apple would need to set the lawyer with an @apple.com email first.
Unlike the courts and UDRP, Twitter primarily deals with registered trademarks, not common law trademarks. UDRP specifically states that it applies to complainants who have “rights” in a trademark. Twitter trademark policy is a serious limitation to those trademark owners who rely on their unregistered trademarks. Although the policy makes it clear that “a federal or international trademark registration is required”, Twitter makes an exception for unregistered trademarks held by government agencies and non-profit organizations.
The trademark owner must describe confusion that is being created by unauthorized use of the trademark by the twitter handle.
Finally, the trademark owner should choose whether it desires to remove the violating account or transfer the trademarked username to the trademark owner. These two options are in line with UDRP, where the trademark owner may request cancellation of a domain name registration or its transfer to the trademark owner.
Interestingly, the format of the complaint is that of a “trademark policy violation”, not “trademark infringement” as such. This is done in the attempt to shield Twitter from having to resolve each and every dispute between trademark owners and twitter users.
Currently, Twitter usernames are less important for branding compared to domain names, which is probably the reason why there have not been very many court cases and serious disputes around Twitter user names. Time will tell if this is going to change.
Meanwhile, if you are a trademark owner, make sure you use Twitter internal policy if you see someone else use your trademark on their twitter profile.
If you are a Twitter user, make sure you don’t infringe upon trademark rights of others. Remember that just because Twitter has a policy that facilitates the transfer of usernames to trademark owners, does not mean that you cannot be sued for trademark infringement personally.
More Cases Uploaded
Tags:Small BusinessNew Copyright ActFair DealingCollectivismPhilosophy