Who would have thought that the week before Christmas would be so fruitful on important decisions in the area of intellectual property.

First, the Supreme Court of Canada has delivered a landmark decision in Cinar Corporation v. Robinson. In it, the Supreme Court of Canada unanimously dealt with many crucial issues pertaining to how copyright cases will be resolved in the future:

– the scope of protection afforded by the Copyright Act;

– the meaning of the words “substantial part” that set out the threshold for copyright infringement;

– rules regarding disgorgement of profits;

– rules regarding non-pecuniary damages; and

– rules regarding punitive damages.

Despite Supreme Court’s unanimity, this decision in fact further blurs the line between unprotectable ideas and protectable expression of ideas by adding a significant degree of subjectivity in the analysis. The Court refused the approach whereby the court first determines the original elements in the plaintiff’s work, then filters out unprotectable elements from that list, and, finally, compares the remaining protectable original features with what was actually used by the defendant. Instead, the Supreme Court preferred the holistic approach where “The character of the works will be looked at, and the court will in all cases look, not at isolated passages, but at the two works as a whole to see whether the use by the defendant has unduly interfered with the plaintiff’s right.”

This case likely turned on the single issue that defendants had access to the plaintiff’s work and knew that plaintiff would object to their use of it. The court wanted to land a helping hand to an author who failed to carry out a project whereas a very similar project was later carried out by several parties some of whom were originally involved in the plaintiff’s project.

It is what some lawyers call “the degree of sneakiness” that decided the case. In other words, the entire copyright law analysis only happened after the judges internally decided that the plaintiff should be rewarded and the defendants should be punished.

While I typically always support those whose rights are infringed in copyright law suits, this may be the case when bad facts make bad law, because I’m not sure that I agree (from the description of the two works, and without having had a chance to compare the actual works) that what was used was more than unprotectable idea.

Time will tell what this case will mean in terms of development of Canadian copyright law.

The second case is the case decided by BC Court of Appeal that affirmed the landmark decision of BC Supreme Court in Woodpecker Hardwood Floors (2000) Inc. v. Wiston International Trade Co..

I already wrote about the facts of the case with a brief analysis before, but briefly here they are again: a BC flooring company that’s been around for over a decade realized that its competitor, another flooring company from the same city trademarked the word “Woodpecker” as its own.

The dilemma – do we spend a ton of money on rebranding or do we spend a ton of money on lawyers to fight this through – was entirely avoidable. All the first company had to do was register its trademark first.

They decided to fight for their trademark. BC Supreme Court granted an injunction recognizing the first company’s prior right in the trademark. Now, the BC Court of Appeal has agreed.

Happy ending? Not really, unless you mean a happy ending for all lawyers involved in this case.

Now that the case has been through the BC Supreme Court level and the Court of Appeal level, the first company has probably spent close to 100 times the amount that it would have cost them to register their trademark when they were starting out.

If anything, it would have been a good insurance policy.

Remember, registering trademarks is within the reach of any business that’s more than just a hobby. It’s a long-term investment that is crucial for any business that spends time, money and energy on branding and marketing.

Now, that there is a way to register your trademarks with a Triple Peace-of-Mind Guarantee™, you are committing a crime against your business if you are not protecting its trademarkable assets!

Speaking of how we help our clients register trademarks, here’s a testimonial from another happy customer:

P.S. Merry Christmas, Happy New Year and Happy Holidays!

This is to let you know that you can now view Canadian Copyright, Trademarks and Patent Regulations on our website:

Copyright Regulations

– Book Importation Regulations

– Certification of Countries Granting Equal Copyright Protection Notice

– Cinematographic Works (Right to Remuneration) Regulations

– Definition of “Small Cable Transmission System” Regulations

– Definition of “Wireless Transmission System” Regulations

– Educational Program, Work and Other Subject-matter Record-keeping Regulations

– Exceptions for Educational Institutions, Libraries, Archives and Museums Regulations

– Limitation of the Right to Equitable Remuneration of Certain Rome Convention Countries Statement

– Local Signal and Distant Signal Regulations

– Programming Undertaking Regulations

– Regulations Defining “Advertising Revenues”

– Regulations Establishing the Period Within Which Owners of Copyright not Represented by Collective Societies Can Claim Retransmission Royalties

– Regulations Prescribing Networks

– Copyright Regulations

Industrial Designs Regulations

– Industrial Design Regulations

Patent Designs Regulations

– Patented Medicines (Notice of Compliance) Regulations

– Patented Medicines Regulations

– Use of Patented Products for International Humanitarian Purposes Regulations

– Patent Rules

On July 12, 2012, the Supreme Court of Canada issued its reasons in five copyright cases: Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), Re:Sound v. Motion Picture Theatre Associations of Canada, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, and Society of Composers, Authors and Music Publishers of Canada v. Bell Canada.

The results, while quite predictable, are very disappointing for someone who values individual rights, freedom and capitalism.

Howard Knopf in his post, A Proud and Progressive Pentalogy Day in Canadian Copyright Law has provided a brief outline of what the five cases stand for. It’s a good summary of what the cases stand for, but I squarely disagree with Mr. Knopf on his conclusions. My issues with his position start with the title, namely the use of the word “progressive”. I trust that the use of it is intentional and is in reference to the progressive movement. You may or may not agree with Glenn Beck, but the important question to ask when using the word progressive, even outside the political context is, “what are we progressing to?”. In my opinion, we are progressing away from a system where interests of the individual trump interests of the society and towards a system where interests of the “society”, expressed by whoever has the power to claim to be in position to represent such interests, trump interests of each particular individual making up that “society”. This never ends well.

Leaving the technicalities for a future post, I have three big problems with the 5 decisions.

My biggest problem is with paragraphs 9 and 10 of the Bell case, where the Court unanimously held that:

[9] Théberge reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace: see e.g. Bishop v. Stevens, [1990] 2 S.C.R. 467, at pp. 478-79. Under this former framework, any benefit the public might derive from the copyright system was only “a fortunate by-product of private entitlement”: Carys J. Craig, “Locke, Labour and Limiting the Author’s Right: A Warning against a Lockean Approach to Copyright Law” (2002), 28 Queen’s L.J. 1, at pp. 14-15.

[10] Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain. As noted by Professor David Vaver, both protection and access must be sensitively balanced in order to achieve this goal: Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 60.

This is exactly the problem with the current trend. I strongly believe that interests of the public should be completely irrelevant to copyright laws and copyright policy. Whether copyright laws provide any benefits as a “fortunate by-product” or they actually hurt the public does not really matter. What matters is whether those who create something that had not existed before have a chance to offer it to the public on THEIR terms, rather than being forced in a situation where they should either not disclose it to the public or expect the public to dictate such terms.

Notice the difference between a situation when the market forces a manufacturer to lower prices not to be squeezed out by the competition (as in copyright owners voluntarily adopting new models depending on granting access to their works for free) and a situation when the government adopts laws that say that those who really want or need to use the manufacturer’s product are entitled to steal from the manufacturer, but no more than 20% of the manufacturer’s total output (as in the government telling copyright owners they cannot sell their works because the public should have the “user right” to use them for free).

No matter what the Supreme Court of Canada says, copyright is not about access. It’s not about dissemination. It’s not about the royalties. The only thing that copyright is about is control. Take away control and you have slavery, because then the author is in no position to decide on which conditions to offer the results of his work to others. Whether it’s the public, the government or the collective society that decides it – it’s not the most important person in the equation, the author and the copyright owner.

My second big problem is that all five cases regarded copyright in the context of tariffs. Based on the false premise that copyright is about royalties, the Court seems to have used the following logic: “We have all these tariffs. If we decide that this action involves the use of this right recognized by the Copyright Act, then it would mean that it would fall under this or that tariff. Would that be a fair result?”

I understand that the cases WERE about tariffs, and that tariffs are an integral part of the copyright regime in Canada, but tariffs are merely an extension of exclusive rights that authors are supposed to voluntarily delegate to collective societies. Just because a collective society adopted a tariff royally approved by the Copyright Board does not create or destroy exclusive rights.

In Supreme Court’s reasons, however, the underlying assumption seems to be that the only purpose of authors’ existence is to provide an opportunity for the collective societies to apply tariffs.

This goes back to the priority of the interests of an individual over the collective.

Finally, Supreme Court further expanded fair dealing. Not only did it endorse the horrific idea of “user rights” previously found in CCH, it went far and beyond by removing even those scarce limitations of what the public could do to exclusive rights of copyright owners if the public feels like it.

In my opinion, most categories of fair dealing should be reduced to presumptions, which a copyright owner can rebut by declaring that the copyright owner does not grant the right to use his works for such purposes that the Copyright Act presumptively considers “fair”.

For example, why do we assume that a library should have the right to carry every single book it feels would benefit the community? Why cannot there be a situation when a copyright owner chooses to disallow libraries to carry the copyright owner’s books? This would happen in dismally small number of cases, so fair dealing would play the role in facilitating the dealings that are supposedly fair. But just because most copyright owners would be OK with such use does not mean that ALL of them would be. Individual rights are not about averages, they are about individuals.

Very seldom a use is truly fair if the copyright owner openly opposes it.

Same goes for the education. Why do we assume that the purpose of educating the next generation of students justifies robbing the current generation of authors and copyright owners of their right to decide if they want to allow teachers to distribute copies of their works to students without paying for it?

In summary, this is a very sad day for Canada. Not because greedy collective societies and big corporations will be able to grab less cash from the “working people” and the “less fortunate among us”. Not because a certain provision of the Copyright Act was interpreted to mean one thing, and not the other.

It is a sad day because it confirms the shift in the paradigm – from protecting individual rights against being infringed by other individuals or the mob, we are “progressively” drifting to laws that are subjecting rights of each individual to the mythical interests of the “whole”.

I have not only studied history, I’ve lived the socialist nightmare. Those of you who think that government-sponsored mass murders can never happen in Canada, think again.

No, just because the Supreme Court of Canada recognized that the fair dealing exception for the purpose of private study also covers non-private study will not be the cause of the government rounding up millions of Canadians and shooting them in the head. But that’s what progressivism is all about. Slowly changing the paradigm. Slowly robbing individuals of their rights… until one day they realize that ALL of their rights are now subject to whether they benefit the rest of the “collective”.

Those cheering today for the victory of the “users” are cheering for their own destruction as holders of individual rights, whatever these rights may be.

As part of my work on the website, I continue uploading more and more MLML (Mincov Legal Markup Language) formatted cases.

This time I added the following Supreme Court of Canada cases:

Apple Computer Inc. v. Mackintosh Computers Ltd. – a 1990 case where SCC found that programs embedded in the silicon chip are a reproduction of the programs in assembly language and as such are protected by copyright.

Compo Co. Ltd. v. Blue Crest Music et al. – a very unfortunate 1979 case where SCC sealed the door to alternative theories of origins of copyright in Canada by finding that it is nothing but a statutory invention.

Bishop v. Stevens – a 1990 case where SCC found that The right to broadcast a performance under s. 3(1) of the Copyright Act does not include the right to make “ephemeral” recordings beforehand for the purpose of facilitating the broadcast.

Muzak Corp. v. Composers, Authors and Publishers Association of Canada, Limited – a 1953 case where SCC confirmed that “authorize” means to “sanction, approve and countenance” and found that “something more” than the mere supply of the equipment required to infringe is needed to find the intermediary responsible.

Robertson v. Thomson Corp. – a 2006 SCC case which discusses the issue of reproducing newspaper articles in digital form within and outside the context of the whole newspaper issue.

Consumers Distributing Co. v. Seiko – a 1984 parallel importation case, where SCC found that selling authentic Seiko watches in Canada outside the authorized channels does not constitute passing off.

Many more to come.