Entertainment & Media Law Signal : Canadian Entertainment Lawyers for Licensing, Intellectual Property & New Media Matters

Is television a thing of the past; an outmoded delivery system on its way to scrap heap?  Not according to an article in this weekend's Toronto Star.  The editorial is written by Douglas Barrett, formerly an Entertainment partner with McMillan Binch and now, among other things, the CTV Professor in Broadcast Management at the Schulich School of Business at York University.  

Barrett makes the point that the critics of television are mistaken in declaring it dead.  As compelling evidence for his position, Barrett cites a 2009 study by the Council for Research Excellence, a research think-tank based in the United States.  The results of the study may surprise many who believe that viewers are leaving the tube in droves for other on-line viewing options.  According to the findings of the study, television continues to dominate the media landscape and by quite a significant margin.

On the business side of things, Barrett raises two points which he believes lend credence to the continuing importance of television.  First,  the persistent difficulties with monetizing Internet exploitation  which need to be addressed before the real on-line rush begins.  Second, the recent purchase by Shaw Communications of the Canwest television assets which seems to indicate that the shrewd folks at Shaw may share Barrett's views on the relevance of television.

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Considering the fact that I have become the de facto spokesperson for the Canada Media Fund (CMF) on this blog, I couldn't resist making available the CMF's new business policies, which were made public on May 20.

The CMF's Business Policies (2010-2011), available here, includes the following information:

• Default Policy;
• Accounting and Reporting Requirements;
• Producer’s Fees and Corporate Overhead Policy;
• Completion Protection Policy;
• Production Insurance Policy;
• Standard Recoupment Policy; and
• Treatment of Tax Credits.

Producers should also note the following with regards to Producer's Fees and Corporate Overhead for projects in the Experimental Stream:

For projects in the Experimental Stream, the producer’s fees included within the budget shall be a maximum of 10% of Sections B+C of the budget. The corporate overhead included within the budget shall be a maximum of 10% of Sections B+C of the budget and must be comprised of costs directly related to the project.

Producers should note the following with regards to Producer's Fees and Corporate Overhead for the production of television components of projects in the Convergent Stream:

The producer’s fees and corporate overhead (“PFCO”) included within the production budget shall be a maximum of 20% of Sections B+C of the production budget, with the exception of productions with budgets of less than $500,000 (Low Budget Productions) for which the percentage is 30%. Beyond these percentages, there is a maximum dollar amount of $1.4 million per project which is pro-rated up for series of more than 13 hours (13 one-hour episodes or 26 half-hour episodes).

Slowly but surely, it appears that producers are finally receiving the information they need from the CMF....even if it's only one step at a time.

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The CBC reports that "Arcade Fire music sparks Ottawa school play":

Students at an Ottawa high school have transformed the music of Montreal indie rock band Arcade Fire into a stage play.

The Neon Bible Project, by students at Canterbury High School, is a performance of movement and dance based on Arcade Fire songs.

The band has given its blessing to the Neon Bible Project, developed by ardent fans.

(The Neon Bible Project maintains its own blog, which provides information on the project and performances.)  Many people will be aware that playing music for an audience in a public place (including in a facility which charges an admission fee, such as a concert hall) triggers the payment of a royalty for the "public performance" of the composition (for which a license from SOCAN is required).  Likely to be less familiar is the need to license so-called "grand rights" when music is used in the fashion contemplated by The Neon Bible Project (ie as an integral part of a dramatic presentation involving such elements as narration, storyline or scenery).

"Grand rights" are the "dramatic performing rights" which are held by the owner of copyright in a composition (other public performance rights are referred to as "small rights", though actually hearing that term used is relatively rare).  Grand rights are administered separately from other public performance right - thus SOCAN is not able to grant a license for the grand performing rights in a composition.  Generally, the rights are administered directly by the publisher (or the composer).  The Canadian League of Composers offers a helpful guide to grand rights and a checklist of elements which should be present in a grand rights license.  Gordon P. Firemark has also written a short post (from a US perspective) outlining considerations for producers who wish to make use of existing songs in their stage plays.

On a somewhat related note, Brent Giles Davis has written an excellent paper exploring whether and when "tribute bands" need to license grand rights: "Identity Theft: Tribute Bands, Grand Rights and Dramatico-Musical Performances" (24 Cardozo Arts and Entertainment Law Journal 845).  The paper provides a detailed consideration of grand rights and the US caselaw surrounding them.

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The film version of The Girl With the Dragon Tattoo was released in North America on March 19, 2010 - for entertainment lawyers, it raises the question: what do you do about a girl with a dragon tattoo who appears on-screen?

The errors and omissions "clearance" process requires producers of audio-visual projects to obtain licenses for all copyrighted materials which appear recognizably on-screen.  A tattoo is, at least at some level, simply a drawing or painting rendered on a somewhat unusual canvas (ie the human body).  At first glance, then, the tattoo should be the subject of copyright protection - but who should you approach to request permission to reproduce the image?  The actor who has the tattoo imprinted on their body, or the tattoo artist who originally drew the tattoo (and what about a tattoo which is itself simply a reproduction of a pre-existing artwork or trade-mark)?

Christopher Harkins has written what appears to be the only currently-available long-form consideration of the question: "Tattoos And Copyright Infringement: Celebrities, Marketers, And Businesses Beware Of The Ink" (10 Lewis & Clark Law Review 314) (hat tip: Simon Chester at slaw), which opens with a discussion about a case involving a tattoo artist suing the NBA for copyright infringement when the NBA created advertisements depicting player Rasheed Wallace and a close-up (and animation) of the tattoo on his right forearm (the case was eventually settled with no public disclosure of the settlement terms).  Harkins analyzes the matter from the perspective of US copyright law, and Jordan S. Hatcher also offers some thoughts on the matter (including an interesting sidebar on the intersection of tattoos and moral rights).  The answers are not straightforward, regardless of the jurisdiction: Harkins offers an apposite closing thought when considering tattoos on-screen: "a veritable gauntlet of copyright issues may lurk".

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As the June 10, 2010 deadline is approaching, I thought I would remind readers that the Entertainment, Media & Communications Section of the Ontario Bar Association has issued a call for submissions for the Journal Edition of its newsletter.  (In the interests of full disclosure, I should note that I am a member of the executive committee for the section, and also an editor of the Journal Edition).  The call for submissions can be found here.

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On May 12, a US Federal Court ruled that popular peer-to-peer (P2P) file sharing site, LimeWire,  and its founder/chairman, Mark Gorton, were liable for copyright infringement. The Recording Industry Association of America (RIAA) brought the suit in 2006 and was seeking damages and an injunction against the site. RIAA's chairman and CEO, Mitch Bainwol, called the ruling "extraordinary". 
 

This ruling only goes to strengthen the 2005 U.S. Supreme Court's decision in MGM v. Grokster, which held the following:

One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.

Meanwhile, the International Anti-Piracy Caucus, a group of lawmakers that work closely with the RIAA, released a list of the six most "notorious" file sharing web-sites.

The six sites are as follows: Baidu (China), IsoHunt (Canada), Mp3fiesta (Ukraine), RapidShare (Germany), RMX4U.com (Sweden), and the Al Capone of these BitTorrent and P2P forums...The Pirate Bay (Sweden).

These sites are now clearly the most wanted pirates sailing the digital seas. It will be interesting to see who sinks first.    

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The Documentary Organization of Canada (DOC) has announced the release of its Guidelines to Fair Dealing Practices for Documentary Filmmakers.  Documentaries, by their very nature (ie because they seek to depict and reproduce the world as it actually is, and generally are not filmed on controlled and artificial sets), face greater "clearance" challenges when it comes to obtaining errors and omissions insurance - permission must be obtained for, among other things, the on-screen reproduction of any copyright or trade-marked materials, such as songs, posters or film clips.  The DOC Guidelines aim to provide guidance on when "fair dealing" may be relied upon to avoid having to obtain clearances.

The issue of the extent to which Canada's "fair dealing" mechanism can be used to ease the clearance process is a contentious one, with producers (and their counsel) squaring off against E&O providers (and their counsel) - and is ultimately a subset of the larger debate regarding the efficacy of "fair dealing" itself.  As DOC notes in their press release, the Guidelines are intended as a stop-gap measure on the way to DOC's goal of achieving a more wide-ranging reform of fair dealing.

Of particular interest is the role to be played by efforts to create industry-standard guidelines.  Cogent arguments have been advanced, including those by Giuseppina D'Agostino, that reforming the law of fair dealing will not prove as constructive as creating "fair dealing best practices" (see D'Agostino, "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use", 53 McGill Law Review 309, available for download from SSRN).  In other words, perhaps the most productive way forward is by developing, informed by the positions and (competing) preferences of all stakeholders in the relevant industry sector, precisely the sort of guidelines and standards which the DOC Guidelines are a first step in creating.  (The Center for Social Media at American University has promulgated a Documentary Filmmakers’ Statement of Best Practices in Fair Use which is an effort similar in ambition to that of DOC.)  Though such guidelines do not have the force of law, there is the hope that, to quote D'Agostino, courts will see fit to treat them "as 'soft law' when interpreting fair dealing cases". 

The DOC Guidelines will almost certainly not be the final word on the matter - they do not appear to have been endorsed by E&O providers, for example.  There will be elements of the Guidelines which prove contentious (as an example, as I touched on in this short piece at IP Osgoode on the "incidental inclusion" exception in Canadian copyright law, the DOC Guidelines adopt the most aggressive, and producer-favourable, interpretation of the "incidental inclusion" exception).  But the DOC Guidelines will hopefully serve as a welcome first step in the ongoing process of clarifying and simplifying how Canada's copyright laws can, and should, interface with day-to-day film and television production activities.

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I confess that back when buying an album on CD was a big part of my life, I was always offended when the booklet didn't contain the lyrics - really, they couldn't just throw in the words for my $14.99?  The internet abhors a vacuum, and so lyrics sites were created - many, many lyrics sites, many of which were completely unlicensed (and sometimes contained incorrect lyrics).  Lyrics enjoy copyright protection just as much as the notes which comprise the song (or, in what may be a more appropriate comparison, just as much as a poem).  Joseph Plambeck in the New York Times offers a look at the ongoing evolution of lyrics websites: Lyrics Sites at Center of Fight Over Royalties.

Music publishers have partnered with rights clearinghouses such as Gracenote and LyricFind to offer licenses to websites who wish to reproduce protected lyrics.  As the story notes, while revenue generation is modest at this point in time, it is anticipated to grow - particularly since successful lyrics sites, such as the Vancouver-based MetroLyrics, are evidently enjoying annual revenues of around $10 million.

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Following up on last week's post about the Supreme Court of Canada's decision in R. v. National Post, 2010 SCC 16, Cris Best, writing at The Court.ca, has an in-depth analysis of the decision.

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POST UPDATED

This post is somewhat curious to write - it is about a decision of the Canadian Federal Court of Appeal which, at the moment, appears not to be available online, thus limiting discussion of the appeal to what has been reported in other blogs and news outlets.  Here is what we know at this time (this post will be updated when the full decision is made publicly available - UPDATE May 25, 2010: the text of the decision is available here):

• Barry Sookman has reported that at some point last week the Federal Court of Appeal issued a decision in the ongoing judicial review of the Copyright Board of Canada's decision regarding SOCAN's Tariff 22.A - according to Sookman, the Court of Appeal has, confirming the decision of the Copyright Board, ruled that offering an online "preview" of a song in order to enable a consumer to decide whether to purchase that song constitutes an example of "fair dealing" for research purposes, and hence no public performance royalty is payable to SOCAN in connection with that preview
• The Copyright Board of Canada's original decision (released on October 18, 2007) which was the subject of the appeal to the Federal Court, is available here.  The Board's conclusion regarding "previews" begins at page 31 of the .pdf.
• Michael Geist, in his post discussing the FCA decision, evidently has access to a copy of the decision (where does he get those wonderful toys?), and reproduces a passage from the decision which indicates that the FCA has vigorously adopted the Supreme Court of Canada's guidance in the CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 that the "fair dealing" provisions in the Copyright Act should be given a liberal and purposive interpretation

As Geist notes, the implications of the decision are "very significant".  In declining to accord the word "research" a restricted interpretation (as Sookman notes, "SOCAN had argued before the Court that the term “research” applied to activities involving investigation, systematic research, critical analysis, scientific inquiry and factual discoveries arising and being carried out in a formal setting"), the FCA has affirmed that, in Geist's words, "the door is open to creative uses of the fair dealing provision in Canada consistent with the Supreme Court of Canada's view of a copyright balance between user rights and creator rights".

What may be most significant about the decision is that it may work to undercut the arguments of those (including this writer) who have argued in the past that a "fair use" approach to user's rights may be more beneficial than the "fair dealing" mechanism currently found in Canadian copyright law.  ("Fair dealing" provides for a prescribed and limited set of acceptable uses (research, private study, criticism or review and news reporting) which fall outside the ambit of a copyright owner's exclusive rights, while "fair use" is an American concept which allows for an open-ended assessment of the purposes, and so is not limited to the five acceptable purposes found in Canadian law.)  

Counter-intuitively, with respect to online "previews" of music, "fair dealing" has proved to be more accommodating than "fair use" - as Sookman notes, in the US decisions on this matter (United States v. American Society of Composers, Authors and Publishers, (In re AT&T Wireless), 599 F.Supp. 2d 415 (S.D.N.Y. 2009) and Video Pipeline v. Buena Vista Home Entertainment Inc. 342 F.3d 191) the US courts have held that offering an online "preview" is not fair use, and that a public performance royalty is payable.  A reassessment of the purported limits of "fair dealing" may be in order.

Though the issue appears settled in Canada, it continues to be live in the United States (at least one of the aforementioned decisions is currently on appeal). Greg Sandoval wrote a detailed article canvassing the various arguments surrounding whether online previews should be considered fair use, which is well-worth reading.

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The discussion of "fan fiction" at Wikipedia begins as follows:

Fan fiction (alternately referred to as fanfiction, fanfic, FF, or fic) is a broadly-defined term for fan labor regarding stories about characters or settings written by fans of the original work, rather than by the original creator. Works of fan fiction are rarely commissioned or authorized by the original work's owner, creator, or publisher; also, they are almost never professionally published. Fan fiction, therefore, is defined by being both related to its subject's canonical fictional universe and simultaneously existing outside the canon of that universe.

While the problematic legal implications of fanfic should be obvious, there are a multitude of other perspectives and considerable discussion about the propriety of fanfic and whether and how copyright owners should respond to, tolerate or even encourage it.

Jonathan Bailey, writing at Plagiarism Today, has a detailed discussion about "The Messy World of Fan Art and Copyright".  The legal portion of Bailey's analysis (though Bailey isn't a lawyer, he writes frequently on copyright-related matters) focuses on US law, and he offers a nice exploration of the various factors (legal, commercial, artistic) which intersect in discussions of fan fiction.

The key point to remember is this: Fan fiction and fan art are, usually, an infringement of the right of the copyright holder to prepare and license derivative works based on the original. This is almost without exception.

However, many copyright holders, for good reasons, tolerate fan art and even encourage it, but this should not be taken as carte blanche to do what you want with the source material. There are many lines that a fan artist can cross and wind up in legal trouble.

Canadian lawyer Grace Westcott published a lengthy and thoughtful article on the topic in the Literary Review of Canada: "Friction Over Fan Fiction".  As Westcott notes:

Under Canadian law, as in the U.S., characters from fiction or television, such as Anne of Green Gables, can be protected by copyright, provided that the characters are sufficiently creative, distinctive, thorough and complete, or constitute a substantial part of the work itself. While the Canadian Copyright Act has no explicit concept of derivative works, it does confer on artists and authors the exclusive right to control the production of their works in other mediums and adaptations. The basic question is whether a substantial amount of the source has been produced or reproduced, in any material form whatever. This would likely capture most fan fiction.

As she also notes, of potentially even greater concern under Canadian copyright law is the presence of "moral rights": Sections 14.1 and 28.2 of the Copyright Act (Canada) provide that if a work is "distorted, mutilated or otherwise modified" to the point where there is "prejudice to the honour or reputation" of the author, then an infringement of moral rights has occurred.

Other, non-legal, considerations should be taken in account as well, as Westcott notes:

Broader benefits may flow from fan fiction as well. Tushnet argues that fan fiction allows fan writers — and potentially children, too, in an educational setting — to develop their writing skills using their favourite characters and worlds as a starting point. The fan community provides an important social network for this. ...

Media companies may judge that the promotional value of creatively engaged fans outweighs the risks of fan fiction.

Canadian author James Bow, who spent his own time in the fanfic trenches, offers his own perspective in "In Defence of Fan Fiction":

When it comes to the best that fan fiction has to offer, you will find individuals working as hard as any professional, producing something that is well written, well crafted and a lot of hard work. And it has all been done for no reason other than love.

... So this author is not going to shy away from his fan fiction heritage. He will not shoo away the kids from his backyard. As long as they don’t damage the fence or step on my begonias, I’ll be content to listen to their playful chatter. I honestly think that my life and my work will be all the richer because of it.

As with so many current issues in Canadian copyright law, we await a Canadian court's pronouncement on the legality of fan fiction - but we see, also, that the considerations to be taken into account are not limited to the purely legal.

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After launching on April 1, 2010, the Canada Media Fund has now released the Experimental Stream Application Form, which can be found by clicking here. Better late than never, I suppose.

The CMF's contributions are divided into two streams of funding:

The Experimental Stream and the Convergent Stream.

The Experimental Stream of the CMF is intended to support digital content that is innovative and interactive. It's important to note that projects must include these characteristics to be eligible for this stream of funding. 

According to the CMF's Experimental Stream Guidelines 2010-2011, the definitions of innovative and interactive are as follows:

Innovation: Eligible projects must be innovative. Innovative may be expressed in terms of innovative business models, innovative content, or innovative technology. The CMF does not define or limit what is innovative - applicants are encouraged to pursue their own vision of innovation and articulate to the CMF how their project is innovative.

Interactivity: Eligible projects must be interactive. Interactivity is defined as a participatory experience between the user and a product/technology or the user and other users as enabled by the product/technology. Projects that use the internet or mobile platforms to distribute linear content without any significant interactive feature(s) are not eligible.

While the definitions of "innovative" and "interactive" are not entirely clear, what is apparent is that a simple interactive website wont be eligible for funding. The CMF are clearly looking for producers to invest a great deal of time and money in their digital content in order to be eligible under the Experimental Stream of funding. Digital content should now include sophisticated features and interesting and distinct technologies.

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Robert Andrews, writing at paidContent.org, provides a link-rich post on YouTube's ongoing negotiations with UK and European music collectives regarding royalties payable each time a composition is streamed on the site.  Particularly interesting is the breakdown of what the "standard" royalty rates are for online on-demand streaming (YouTube evidently manages to negotiate more favourable rates than the standard) and what they translate into in terms of actual revenue for publishers and artists.

As Andrews notes, PRS for Music (the UK performing and mechanical rights society) has an on-demand streaming rate of £0.00085 per track - which means that a track played one million times in the UK via on-demand streaming merits £850 in royalty payments (which would then presumably be split among the publisher and composer(s)).  GEMA, the German collecting society, has a standard royalty rate of €0.1278 (£0.11) - meaning that the same track streamed one million times in Germany results in £110,000 in royalty payments - or, as Andrews notes, approximately 130 times what is payable in the UK.

The Canadian approach is slightly different - and also much more confusing.  The approach used by SOCAN in its tariffs setting royalties for online music use, such as those set out in Tariff 22A and Tariff 22F (each applicable through 2006), set a "royalty" rate which is calculated as a portion of the service provider's revenues, rather than being a fixed amount per track.  That being said, none of the existing tariffs (B through G are currently under appeal in the federal courts) apply to social networking sites or user-generated content sharing sites (such as YouTube).  McCarthy Tetrault provides a useful overview of the tariffs in this short article by Barry Sookman and Daniel Glover.

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On Friday, May 7, 2010, the Supreme Court of Canada issued its decision in R. v. National Post, 2010 SCC 16.  The decision is notable for its definition of the contours of a journalist's right to "shield" confidential sources and materials from the investigate powers of the state - from the headnote:

In appropriate circumstances, accordingly, the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor. The public’s interest in being informed about matters that might only be revealed by secret sources, however, is not absolute. It must be balanced against other important public interests, including the investigation of crime. In some situations, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests and a promise of confidentiality will not in such cases justify the suppression of the evidence.

The decision has, as expected, generated an enormous amount of coverage and commentary.  From Kirk Makin writing in the Globe and Mail:

The Supreme Court of Canada slammed the door shut Friday on a concerted attempt by the press to broaden its rights to protect confidential sources.

In an 8-1 ruling, the court said that in an age of blogging, Twittering and long-range microphones, the media are too amorphous to enjoy such a right and too ungovernable to exercise it properly.

“The bottom line is that no journalist can give a source a total assurance of confidentially,” the majority said. “All such arrangements necessarily carry an element of risk that the source’s identity will eventually be revealed.”

Mr. Justice Ian Binnie said it was a “simplistic proposition” to suggest that a journalist should be able to decide on his or her own whether to grant blanket immunity to a source.

To grant a right to administer blanket immunity to a trade that has no professional regulation and vastly differing ethical standards, “would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy,” the majority said.

From the National Post editorial about the decision:

Let us be clear about what was at issue in this case: Whether or not the loan-authorization document was a forgery, it is not disputed that Mr. McIntosh believed that X thought the document was genuine. Indeed, X had provided Mr. McIntosh with independently verifiable material in the past, and expressed a willingness to sign an affidavit confirming that s/he did not alter or forge the loan-authorization document.

This case thus goes to the very lifeblood of investigative journalism — the good-faith insider who comes forward with information that s/he believes casts important light on powerful individuals and institutions.

To their credit, every Supreme Court Justice responded to the facts of this case by recognizing that journalists do enjoy a case-by-case privilege that permits them to shield confidential materials from the police — thereby acknowledging that the free-speech freedoms contained in our Charter imply a freedom to report and gather information as well. This is an established principle in many Western jurisdictions, but it was the first time it been definitively articulated in this country.
Unfortunately, we learned, this privilege applies only in cases where journalists succeed in proving that “the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth.”

From the Toronto Star report on the decision, by Tonda MacCharles:

In a landmark ruling, Canada’s highest court says journalists do not enjoy a constitutional right to shield the identity of sources during police investigations.

Yet, in a decision hailed by some media lawyers for recognizing the value of investigative journalism , the Supreme Court of Canada declared Friday sources may be shielded on a case-by-case basis.

The onus, however, is on a media outlet to prove the public interest in protecting a source outweighs the interest in investigating a crime.

Commentary from around the internet includes a thoughtful piece by Ravi M. Singh and from Sheldon Toplitt at The Unruly of Law.  Readers at Slaw parse the distinctions between bloggers, Twitterers and journalists.

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Congratulations on the long-awaited launch of Kenk: A Graphic Portrait, to Alex Jansen at Pop Sandbox and to the entire creative team behind the project (Alex; Richard Poplak; Jason Gilmore; and Nick Marinkovich).

Those living in Toronto last week would have found it difficult to avoid news of the launch (which formally occurred at a Thursday night party at the Cadillac Lounge reportedly attended by upwards of 500 people) - outlets providing coverage included CBC, the National Post, and cover treatment in NOW, which ensured that virtually everyone walking in the downtown core had the opportunity to be stared at by a particularly arresting (get it?) image of Mr. Kenk gazing from the NOW dispensers which line the streets.  At the Walrus, writer Rich Poplak provided an in-depth account of the creative process behind the visually stunning project.

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UPDATED BELOW

Music • Technology • Policy has posted excerpts from Chris Castle and Amy Mitchell's ongoing article series "20 Questions for New Artists", this particular excerpt addressing management agreements, covering such topics as commission rates and bases and "sunset" clauses.

Various iterations of the article can be found around the web, including this .pdf version [link removed - see link in update], which covers topics ranging from tax returns and publishing companies to marital status and trade-marks. Castle and Mitchell write from a US perspective, but the general advice is well worth heeding regardless of location.

 UPDATE: Mr. Castle notes that the complete "20 Questions for New Artists" article is also available in an omnibus edition packaged with a couple of other interesting music-related articles penned by Mr. Castle.

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Matthew Nied, writing at the Defamation Law Blog, provides a comprehensive analysis of the Ontario Divisional Court's decision in Warman v Fournier et al, 2010 ONSC 2126 [.pdf] in Warman v. Wilkins-Fournier: Balancing Disclosure, Privacy, and Freedom of Expression Interests in Internet Defamation Cases.  As Nied notes,

Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.

The factum of the Canadian Civil Liberties Association (intervenors in the case whose arguments were generally successful) is also available online.

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Anti-piracy laws are gaining momentum across the Atlantic and beyond. The U.K. Digital Economy Act was given Royal Assent on April 8, 2010, and includes provisions in which copyright holders can send a “copyright infringement report” to ISPs with evidence of suspected infringement and the ISP must notify its subscriber within a month. More significantly, UK telecom regulator, OFCOM, will have the power to introduce various technical measures and suspensions of accounts if the ISPs do not make an impact on these potential infringers.

The U.K. Digital Economy Act was passed into law with growing criticism from various U.K. ISPs, who have already voiced their concerns about the new law.  U.K. ISP Talk Talk, recently stated that the company will "continue to battle against these oppressive proposals during the follow-up process in parliament". Still, other jurisdictions are quickly following the U.K.'s lead. On April 23, 2010, New Zealand's Copyright (Infringing File Sharing) Amendment Bill unanimously passed its first reading in parliament. Also, the Spanish government will soon be proposing legislation to block or shut down websites that offer links to unauthorized content.

Meanwhile, Canadian Heritage Minister James Moore, plans to introduce the government's latest version of its copyright legislation this spring. In the meantime, major music labels were busy responding to a motion by the three opposition parties calling for this country's blank cd/tape levy to be expanded to digital devices such as iPods. However, the governing Conservatives rejected the proposal as a "tax" on consumers.

One would think that with a growing number of foreign governments quickly putting pen to paper and implementing various anti-piracy laws, Canada would be set to follow suit. Then again, history has shown that Canada often fight digital pirates on their own time and at their own pace.   


      

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Horns up to Scot McFadyen and Sam Dunn of Banger Films: their most recent documentary, Rush: Beyond the Lighted Stage, just won the 2010 Heineken Audience Award at the Tribeca Film Festival.  The film is currently showing at Toronto's Hot Docs festival - and garnered raves at its opening last Thursday.

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UPDATED BELOW

The good folks at The Lawyers Weekly have published a short article of mine about the reversionary interest under Canadian copyright law.  Wait - it's actually more interesting, and more consequential, than it sounds.

A handful of individuals can count on being called “King” — the next heir to the throne of England, for instance, or Elvis Presley. But for aficionados of comic book art, only one man earns the sobriquet: Jack “the King” Kirby.

Co-creator of fictional legends such as Captain America, the Incredible Hulk and the X-Men, Kirby is also widely regarded as one of the most innovative and influential artists in the history of what is referred to as “sequential art.” Kirby passed away in 1994, but the traditional proclamation, “The king is dead; long live the king!” remains apt: Kirby’s heirs are embroiled in legal proceedings with Marvel Comics, arguing that they are rightfully the sole or joint owners of copyright in various characters created by Kirby. The heirs claim entitlement to a share of profits earned from various derivative works based on those characters, a potentially vast sum—gross revenues from just the North American theatrical release of the three most recent X-Men movies exceed $600 million.

As I noted in the article, Section 14 of the Copyright Act (Canada) provides that, 25 years after an author dies, the copyright in any works which the author created and for which the author was the first owner of copyright (so, basically, excluding works created "in the course of employment") reverts back to the estate of the author.  Jack Kirby's heirs are attempting to claim ownership of various properties created by Kirby by making use of a somewhat similar provision under US copyright law.  The article sets out my critique of the reversionary interest and why I think it is a provision whose continued existence is difficult to defend.

I should also note a brief update on the story hook for the article: Eriq Gardner, writing at THR, Esq., notes that Marvel Comics has won an early round in the ongoing litigation.

UPDATE: One item in the published piece requires correction.  It is incorrect to state that the estate of Joe Shuster has obtained a court ruling granting it a share of copyright in the Superman character beginning in 2013.  Rather, the estate of Joe Shuster, Siegel's partner and Superman co-creator, filed termination notices with the U.S. copyright office in 2003 which, if valid, will allow the estate to recapture Shuster¹s share of the copyright starting in 2013.

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