Canada moves to modernise its copyright law

Canada's federal government has reintroduced copyright legislation into the House of Commons in an attempt to modernise the country's law, last updated in 1997. The former Liberal government introduced proposed legislation in 2005 and the Conservatives made two attempts during their minority governments in 2008 and 2010, but none passed.

The new bill is an attempt by the Canadian Government make the Country's copyright laws fit for purpose in the digital age. Bill C-11, the Copyright Modernization Act, is an exact copy of legislation tabled by the Conservatives in 2010, Bill C-32, which died when the last Canadian Parliament was dissolved.

The legislation the aims to strike a fair balance between the rights of consumers to use products they buy and those of copyright-holders who are entitled to due compensation for their creations. The law would legalize everyday consumer practices that are currently prohibited, such as using a personal video recorder to record a TV show for later viewing, or copying music from a purchased CD to an iPod. It would further allow educators, artists and satirists to break copyright under limited circumstances if the use is fair and not exploitative, and would also allow "mashups," where people transform or remix existing creative content into new works, as long as it's not for commercial purposes and doesn't have a significant adverse effect on the original rights-holders. The bill will also protect Internet intermediaries from liability for the actions of their users by providing for ‘safe harbour’ exemptions. Many Canadian commentators say that in the absence of such protections, search engines, video sites and blog hosts are vulnerable and often remove legitimate content under threat of legal action..

To some commentators a less welcome provision (and the sticking point in previous attempts to pass this bill) is the blanket ban against breaking digital locks, even for purposes of personal use. This includes "picking" a lock on a DVD purchased overseas to watch at home, or transferring a purchased protected e-book to read to another personal device. The bill provides for $5,000 fines for even the smallest such violations. Many see the provision as the end result of heavy pressure from US authorities who had placed Canada on a copyright piracy ‘watch list’ alongside Russia and China as a ‘hotbed of piracy’, and in the interest of maintaining cross-border trade and exemption from protectionist measures that would prevent Canadian firms from bidding on U.S. government procurement contracts.

Critics of the proposed legislation have said the provisions which relate to breaking a digital lock go too far and undermine the rights of users to use content for the purposes of education and fair dealing. Professor Michael Geist, Canada Research Chair in internet and e-commerce law at the University of Ottawa, called the proposed legislation “a tale of two bills.” He credits the Conservative government for attempting to strike a compromise on issues such as fair dealing and the ability to use copyrighted works for non-commercial purposes without permission to create mashups, tailoring damages under the act to create a distinction between commercial and non-commercial infringement, and addressing the role of internet providers. But, he said, the government was influenced by the United States to implement the tough digital lock provisions despite feedback from Canadians during consultations on the earlier bill saying "“[The provisions] remain unchanged and are one of the most inflexible, restrictive digital lock provisions in the world”.

The bill’s passage will also allow Canada to ratify the World Intellectual Property Organization internet treaties it signed in 1997.

http://business.financialpost.com/2011/09/29/canadas-copyright-conundrum-and-the-digital-locks-controversy/

http://www.ipbrief.net/2011/02/18/canadas-copyright-modernization-act-tries-to-please-everyone-succeeds-in-pleasing-no-one/

Flag from http://arstechnica.com/tech-policy/news/2011/05/canada-still-in-copyright-hall-of-shame-according-to-the-us.ars

Q: when is a helmet not a sculpture? A: when it's not an elephant either

British judges' ability to know
one when they see it is of little
assistance to them when faced
with a charging litigant ...

The United Kingdom Supreme Court gave its ruling this morning in the "Star Wars helmet" copyright infringement case of Lucasfilm Limited and others (Appellants) v Ainsworth and another (Respondents) [2011] UKSC 39.  The decision, which has already attracted substantial media attention (see eg the BBC here), affirms that the Star Wars Stormtrooper helmet is not a "sculpture" under the Copyright, Designs and Patents Act 1988 but that Lucasfilms may bring proceedings in the United Kingdom to sue for infringement of US copyright in the United States. According to the Supreme Court's Press Summary:

"BACKGROUND TO THE APPEAL 

The appeal raises two distinct legal issues:

(1) The definition of “sculpture” in the Copyright, Designs and Patents Act 1988, and, in particular, the correct approach to three-dimensional objects that have both an artistic purpose and a utilitarian function;
(2) Whether an English court may exercise jurisdiction in a claim against persons domiciled in England for infringement of copyright committed outside the European Union in breach of the copyright law of that country?

This appeal is concerned with intellectual property rights in various artefacts made for use in the first Star Wars film, “Star Wars Episode IV – A New Hope”. The most important was the Imperial Stormtrooper helmet. It has been treated as decisive for the outcome of the case. ... The film’s story-line and characters were conceived by George Lucas. Between 1974 and 1976 his concept of the Imperial Stormtroopers as threatening characters in “fascist white armoured suits” was given visual expression in drawings and paintings by an artist, Mr Ralph McQuarrie, and eventually three-dimensional form by Mr Andrew Ainsworth. He produced several prototype vacuum-moulded helmets. Once Mr Lucas had approved the final version, Mr Ainsworth made 50 helmets for use in the film. 

The Appellants (here referred to collectively as Lucasfilm) own copyrights in the artistic works created for the Star Wars films. They have built up a successful licensing business, including licensing models of Imperial Stormtroopers. In 2004 Mr Ainsworth used his original tools to make versions of the Imperial Stormstrooper helmet and armour for sale to the public. ... He sold between $8,000 and $30,000 of the goods in the United States. Lucasfilm obtained judgment against him in the United States. It also commenced proceedings in the English High Court, including claims for infringement of English copyright and claims under US copyright law. 

By the time of the Supreme Court hearing, Lucasfilm claimed only that the helmets qualified for
copyright protection under English law as “sculptures” and not as “works of artistic craftsmanship” [realistically, "works of artistic craftsmanship" was never a runner given the body of existing case law on the subject, including Hensher v Restawile [1976] AC 64 and Merlet v Mothercare [1986] RPC 115]. 

In terms of section 4 of the Copyright Designs and Patents Act 1988, copyright subsists in ... original “artistic works”, which includes a “sculpture”, irrespective of artistic quality. Whether a helmet was a “sculpture” is significant for two reasons. If it is, any copying of the helmets which Mr Ainsworth had originally produced would infringe Lucasfilm’s copyright. It is also relevant for the defences which are available. To produce a helmet by working from a drawing of it infringes copyright in the drawing. However, it is not an infringement of any copyright in a design document which records a design for anything other than an artistic work to make an article to the design or to copy an article made to the design: section 51 1988 Act. If the helmet did not qualify as sculpture, and was therefore not an artistic work, Mr Ainsworth had a defence to an English copyright action based on infringement of Mr McQuarrie’s graphics.

The High Court dismissed the claims for infringement of English copyright: the helmet was not a
work of sculpture and therefore Mr Ainsworth had a defence under section 51. It held, however, that the United States’ copyright claims were justiciable and that US copyright had been infringed. The Court of Appeal allowed Mr Ainsworth’s appeal. It agreed that the helmet was not a work of sculpture but held that the US copyright claims were not justiciable. Lucasfilm appealed to the Supreme Court.

JUDGMENT 

The Supreme Court unanimously allows the appeal. It holds that the helmets were not sculptures but that the US copyright claims were justiciable in English proceedings. Lord Walker and Lord Collins [both of whom have some IP experience before their elevation to the Supreme Court] give a joint opinion, with which the other members of the Court agree. 

REASONS FOR THE JUDGMENT 

Sculpture issue 

The court reviews the legislative history of the current statutory provisions and previous authorities as to the meaning of “sculpture”: [14] – [35]. In the High Court, the judge had formulated various “guidelines” as to the meaning of sculpture. For example, some regard must be had to the normal use of the word “sculpture”. The concept can apply to things going beyond what one would normally expect to be art, but it is inappropriate to stray too far from what would normally be regarded as sculpture. Not every three dimensional representation of a concept qualifies: [36] – [37]. Lucasfilm contended that the helmet was sculpture as it had no practical function at all. Its purpose was wholly artistic, to make a visual impression on the filmgoer. That was not, however, how the trial judge and the Court of Appeal had viewed matters. Mann J found the helmets to be a mixture of costume and prop and that their primary function was utilitarian, namely to express an idea as part of character portrayal in the film. He held that this lacked the necessary quality of artistic creation required of a sculpture. This type of judgmental conclusion was one with which appellate courts should be slow to interfere, as Lord Hoffmann observed in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1
WLR 2416: [40] – [45] [The court in that case seemed more concerned with the Court of Appeal's increasing tendency to substitute its own findings of fact and impression for those of the trial judge -- but the question still remains as to whether the trial judge should need to form an opinion as to whether the primary function of something which may or may not be a sculpture is utilitarian]. The judge did not err in law or reach an obviously untenable conclusion: [46]. 

It would not accord with the normal use of language to apply the term “sculpture” to, for example, a 20th century military helmet used in the making of a film, however great its contribution to the artistic effect of the finished film. The argument for applying the term to an Imperial Stormtrooper helmet was stronger, because of the imagination that went into the concept of the Stormtroopers. But it remained the Star Wars film itself that was the work of art. The helmet was utilitarian in the sense that it was an element in the process of production of the film: [44]. The Court noted that the law did not apply an “elephant test” [ie it might be difficult to define but you know one when you see one], but instead a multi-factoral approach: [47]. 

Justiciability of foreign copyright claim 

The Court of Appeal had held that the common law rule in British South Africa Co v Companhia de Moçambique [1893] AC 602 that an English court had no jurisdiction to entertain an action for the determination of title to, or the right of possession of, foreign land, or the recovery of damages for trespass to such land, was an example of a general principle which applied to claims for infringement of foreign intellectual property rights. The Supreme Court concludes that, provided there is a basis for in personam jurisdiction over the defendant, an English court does have jurisdiction to try a claim for infringement of copyright of the kind involved in the present action: [105]".