Music Canada, the trade association which "represents Canada’s major [record] labels", has a very handy "licensing primer" on its website, which includes a nice little table summarizing (with links) which collectives you need to obtain licenses from in order to obtain authorization to do certain things with "song" (e.g., talk to AVLA if you need permission to reproduce a sound recording, talk to CMRRA if you need permission to reproduce a composition).
In honour of Hallowe'en, I wanted to highlight some copyright- and entertainment law-related posts from Jonathan Bailey at PlagiarismToday (which, if you aren't already a fan, should be added to everyone's must-read list for copyright-related information and commentary):
I would be remiss if I didn't mention Jonathan's classic 2010 post 5 Copyright Issues for Hallowe'en, which covers such issues as obtaining public performance licenses for the soundtrack you use to add extra "spook" to your haunted house and trade-mark protection for the catchy name you came up with to attract attendees.
Continuing with the theme, from the Copylaw blog:
And, finally, some Hallowe'en-themed Canadian caselaw:
In the wake of this month's Supreme Court of Canada decision in Crookes v. Newton 2011 SCC 47 (for previous Signal discussion on the topic, see here) there has been an outpouring of news stories and commentary, and I thought it useful to highlight the following items:
It's been an exciting few years (relatively speaking) for defamation law in Canada: in 2008 the Supreme Court of Canada handed down its decision in WIC Radio Ltd. v. Simpson 2008 SCC 40, which modified the defence of fair comment and seemed to herald a new course in defamation jurisprudence, indicating a "re-balancing" of the interests of reputation and free expression; in 2009, we were treated to the Supreme Court's decision in Grant v. Torstar Corp. 2009 SCC 61, which entrenched the new "responsible communication on matters of public interest" defence, and further confirmed the Court's willingness (if not desire) to reassess defamation law. (For my my views on what WIC Radio and Grant signify with respect to the impact of technology on reputation, see my article "Chasing Reputation: The Argument for Differential Treatment of “Public Figures” in Canadian Defamation Law".)
Now, in 2011, the Supreme Court has released its decision in Crookes v. Newton 2011 SCC 47, which speaks to the issue of liability for defamation when hyperlinking to defamatory content and which, I think, rather radically extends the underlying impulses that the Court had already evidenced with respect to the importance of freedom of expression in WIC Radio and Grant.
The decision has been comprehensively and ably covered elsewhere (see especially Barry Sookman, Howard Knopf, Michael Geist and my colleague Simon Chester at slaw). To summarize, the majority decision (written by Justice Abella, who was joined by five others) draws a very "bright line" test which provides that a hyperlink to defamatory content does not constitute publication of the defamation and can only constitute publication if the creator of the hyperlink repeats the libel - in other words, it appears that the hyperlinker would have to actually copy content from the target site and include it at the linking site in order to be found liable. The concurring reasons of Justices McLachlin and Fish offer a slight smudging of the bright line: they say that if the creator of the hyperlink "adopts" or endorses the content at the target site, then the provision of the hyperlink could constitute publication (so, for example, if the hyperlinker wrote something along the lines of "To read the damning truth about [person X], click on this link]", that would appear to qualify as an adoption/endorsement, and hence publication, on the McLachlin/Fish approach). The third set of reasons, written by Justice Deschamp, while concurring in the result, effectively constitute a dissenting opinion, since the "bright line" of the majority's reasons is sacrificed for a complicated and difficult to understand process of assessing whether the hyperlinker made the defamatory content "readily available" - the analysis seems pre-determined to find liability among a wide swath of activity which the majority and concurring reasons expressly seek to exempt from liability.
As I mentioned, others have written in detail on the case and so there's little which I can add which is novel or consequential. But I thought two related elements of the case were worth remarking on.
James Kosa wrote an interesting and thoughtful piece over at slaw last week: Shape-Shifting Dispute Processes: Adapting the Process to the Type of IT Dispute. In it, he discusses "alternative dispute resolution (mediation or arbitration) as a means for resolving disputes" in the context of information technology (IT) contract disputes. James raises a number of issues which entertainment practitioners would do well to consider in the context of the industries whose participants we are called on to advise. Dispute resolution clauses (or the absence thereof) in contracts can be, dangerously, viewed as "boiler plate" clauses, deserving no more attention than, say, a counterparts clause - but each contract, or at least each "type" of contract, and the relationship which is documented thereby, should be assessed for what type of dispute resolution mechanism is most appropriate.
It is not uncommon for entertainment contracts to contain arbitration clauses: particularly in the United States, the presence of multiple service providers who specialize in making available experienced arbitrators who also have an entertainment industry background make arbitration a seemingly attractive option. But as James identifies, some types of disputes may warrant different treatment:
One way to distinguish disputes is by the remedy sought by the parties. In my view, a dispute should be handled differently if the parties are looking for injunctive relief or specific performance than if the parties are merely seeking payment or some other remedy. A dispute resolution process should be flexible enough to allow the parties to select a method of dispute resolution that will provide them with the remedy they seek. To avoid additional friction when a dispute arises, I would suggest that the parties turn their minds to this issue when preparing the agreement, and carve out from a general dispute resolution clause and the convention escalation procedures any disputes that require a special remedy. Some agreements will carve out intellectual property related disputes from a mandatory ADR clause, allowing the parties to seek emergency injunctive relief. It would also be appropriate to provide such a carve-out for disputes involving a breach of confidence for the same reason. [emphasis added]
Access to the courts in case of a dispute may be useful not just for the type of remedy they can award, but also because there is a certain power of persuasion which can arise: people generally hate being sued - getting pulled into binding arbitration doesn't sound nearly so bad. It is also worth remembering that if a contract only provides for resort to the courts in the event of a dispute, the courts then serve as a "final forum" - an aggrieved party can't try to impose an arbitration or mediation process onto the dispute; conversely, if a contract provides for arbitration or mediation, a recalcitrant party can advanced claims through the courts that the arbitration/mediation is improper or otherwise deficient.
James also provides a very useful heuristic for assessing what type of dispute resolution mechanism is appropriate for a particular type of dispute. To paraphrase (and oversimplify James' great work):
Of course, in the entertainment industries (as in, I imagine, all other industries), disputes don't always co-operate and break down into agreeable chunks with pre-affixed labels: is a dispute over royalties owing more akin to a pure "contractual interpretation" dispute suitable for a judge, or would it be better to have an experienced arbitrator who understands the nuances of a vague "adjusted gross receipts" definition? (The answer may depend on which party you represent, naturally.)
A separate issue which should be canvassed is whether the particular agreement is being entered into under the auspices of a guild/union collective bargaining agreement, and whether and how any dispute resolution process under that collective bargaining agreement interfaces with the proposed resolution mechanism in a particular contract.
There are an enormous number of entertainment industry-focused materials available on dispute resolution mechanisms - here is only a sampling:
Pop mega-star Beyoncé was accused this past week of copying dance moves in her video for the song "Countdown" (Beyoncé accused of 'stealing' dance moves in new video). Is it possible to infringe copyright by "copying" a dance?
The Copyright Act (Canada) includes a definition for "choreographic work", which is one of the enumerated types of works which make up the category of "dramatic work". However, in one of the charming drafting felicities for which the Canadian Copyright Act is so reknowned, "choreographic work" is simply defined to "include[] any work of choreography, whether or not it has any story line". One benefit of that definition is that it makes it clear that copyright extends to sequences of movements even if they bear no necessary relationship to any external narrative.
To obtain copyright protection a given work of choreography would need to have the characteristics of originality and fixation. The "fixation" requirement stems from the definition of "dramatic work" which states that "dramatic work" includes "any piece for recitation, choreographic work or mime, the scenic arrangement or acting form of which is fixed in writing or otherwise" [emphasis added]. The "or otherwise" is useful in that it clarifies that a work of choreography can be "fixed" either by written notation, pictorial depiction or by means such as filming (it is worth noting that the film resulting from the recording of a choreographic work may also qualify for protection as a cinematographic work).
(As an aside, the performance of a choreographic work may itself be protected as a "performer's performance" and hence subject to the "neighbouring rights" regime of the Copyright Act (Canada), which would accord the performer of the choreographic work certain exclusive rights in the performance, such as the exclusive right to film/record the performance.)
So, yes, it is possible to infringe copyright, in a variety of senses of that term, by copying a dance. That being said, there is almost no Canadian caselaw which provides guidance on the matter. The case of Pastor v. Chen, 2002 BCPC 169 (CanLII), 19 CPR (4th) 206 (where a dance instructor sued a former student of his who was teaching the instructor's dance sequences to other customers) is often cited as precedent for copyright in choreography, but a close reading shows that the court found for the plaintiff on the basis of the breach of a confidentiality agreement, and the court's comments relating to copyright were clearly obiter.
For the most comprehensive online treatment of Canadian copyright law as it relates to choreography, see Laurent Carrière's "Choreography and Copyright", a 44-page masterful summation of Canadian law which includes comparative examples from other jurisdictions. For US commentary on the topic, see this 1961 US Senate report, Merlyne Jean-Louis' Dancing Around the Issue of Copyright of Choreographic Works, and this interesting discussion of the issue of fixation, written by Joy Mkrdichian.
The good folks at The Lawyers Weekly have published a short article of mine (in their October 14, 2011 issue) about the Canadian television industry's Terms of Trade. The article can be found in its entirety here, and here is an excerpt:
The Canadian Media Production Association (CMPA) and five of Canada’s largest private broadcasters announced in April they had entered into a “Terms of Trade agreement” (TTA). The TTA will have a significant and continuing impact on the way in which the Canadian television industry conducts the business of commissioning and licensing new television productions. It also poses novel questions about how it will be enforced and who will benefit from it.
Previous Signal coverage on the Terms of Trade Agreement can be found here.
UPDATED BELOW
The Montreal Gazette ran an editorial today regarding Bill C-11 (the Copyright Modernization Act) (The Gazette's View: Bringing copyright law into the 21st century), which contains a glaring factual error regarding statutory damages and technological protection measures (TPMs). From the editorial [emphasis added]:
Less welcome, and the sticking point in previous attempts to pass this bill, is the blanket provision 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 e-book to read to another personal device. The bill provides for $5,000 fines for even the smallest such violations.
This provision was apparently included as a result of heavy pressure from U.S. authorities 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. It is unlikely that there will be many prosecutions under this article as long as violations are committed in the privacy of people’s homes and not for any commercial purpose, but it is still a niggling restriction that caves in to the U.S. at the expense of the right of average Canadians to do what they wish to with their own property for their own enjoyment.
Bill C-11 contains no provision which would allow for the imposition of a $5,000 fine for the described activities, nor does it contain any provision which would allow for a court to impose statutory damages were a plaintiff to commence an action for the circumvention of a TPM in the circumstances described in the editorial. The writers of the editorial seem to think that the statutory damages provisions of the revised Copyright Act would apply to "picking a lock on a DVD purchased overseas to watch at home, or transferring a purchased e-book to read to another personal device" - that conclusion is simply incorrect.
The proposed new Sections 41 and 41.1 would certainly make it an act of infringement to circumvent a TPM - but proposed Section 41.1(3) specifically states that a rightsholder cannot recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes. The new statutory damages regime would set an absolute maximum statutory damages liability of $5,000 (the number which seems to have caught the eye of the editorial writers) for non-commercial infringement - but proposed Section 41.1(3) says that the statutory damages mechanism does not apply at all to circumventions of TPMs which are done for private purposes.
There are certainly remedies other than statutory damages which a rightsholder could seek against someone who circumvents a TPM in the circumstances contemplated in the editorial but, as the Gazette editorial notes (refreshingly, in the context of the copyright reform debates), as a practical matter, the chances of such claims being brought are vanishingly small. Whatever other criticisms one might make of the TPM provisions proposed in Bill C-11, exposing individuals to $5,000 of statutory damages liability for "even the smallest of such violations" is not a possibility.
A short note about terminology: the Gazette editorial uses the word "fine" to describe the non-existent $5,000 "penalty" for which they think an individual could be liable. A "fine" is something imposed upon a wrongdoer by a state authority (Black's Law Dictionary: "a pecuniary punishment or penalty imposed by lawful tribunal upon person convicted of crime or misdemeanor"). Statutory damages are not "fines" - they are "damages", claimable only by a private plaintiff in a civil court proceeding. The copyright reform debates often get mired in terminological debates (is copyright infringement theft?), because words matter - describing statutory damages as "fines" is inaccurate and inflammatory. (The proposed revisions to the Copyright Act do contemplate fines for circumventing TPMs (in proposed Section 42(3.1), but those would only be available where the circumvention is done for commercial purposes.)
UPDATE (10.05.11): The Gazette editorial was published on October 1, 2011, not October 5, 2011, as I indicated in the first line of this post. Barry Sookman, on October 3, 2011, addressed the inaccuracy of the Gazette's statements in Some observations on Bill C-11: The Copyright Modernization Act.
Julie Hilden has written a very thoughtful piece (Should the Law Treat Defamatory Tweets the Same Way It Treats Printed Defamation?) (hat tip: Media Law Prof Blog) which explores whether a tweet (i.e., a post on the micro-blogging service Twitter, which limits individuals posts (or "tweets") to 140 characters) can ever be considered "defamatory".
There is at least some indication that US courts are prepared to conclude that tweets can be defamatory: in the Simorangkir v. Love case (which was settled for a reported $430,000) a Los Angeles Superior Court judge refused a motion to strike the claim based on a series of defamatory tweet. Canadian courts to date do not appear to have considered a defamation case based on Twitter postings (but see our recent discussion about defamation in the context of blogging: Baglow v Smith - The Increasing Importance of Context in Defamation Claims).
It strikes me that a tweet can certainly meet the threshold for "defamatory" (i.e., a statement of fact which would tend to lower the reputation of the plaintiff in the eyes of a reasonable person (Grant v Torstar Corp., 2099 SCC 61), but that, as seems to be the trend more generally in defamation cases, the context in which a tweet occurs is relevant to the analysis. At a minimum, analysis of a purportedly defamatory tweet should take into account any preceding or following tweets from the same source - 140 characters isn't an awful lot of room in which to convey subtlety and context, so the meaning of a single tweet in a stream of them can have its meaning meaningfully altered by the content of "surrounding" tweets. It will also, as was the case in the trial decision in Baglow v Smith, it may also be relevant to assess whether an impugned tweet was a unilateral communication or part of a "back and forth" discussion/debate/combat between two (or more) parties. Finally, the nature of the platform itself may be a relevant consideration - as the Supreme Court of Canada indicated, in the context of the "fair/honest comment" defence, in WIC Radio v Simpson (2008 SCC 40 at para 48):
The key point is that the nature of the forum or the mode of expression is such that the audience can reasonably be expected to understand that, on the basis of the facts as stated or sufficiently indicated to them, or so generally notorious as to be understood by them, the comment is made tongue-in-cheek so as to lead them to discount its “sting” accordingly.
In other words, maybe people just don't take Twitter "seriously" enough - or they might not take particular expressions on Twitter, particularly from certain participants seriously enough - to warrant a finding that the statement was defamatory.
Irrespective of those analytical subtleties, though, Twitter is not and should not be viewed as a free-fire zone when it comes to defamation and it remains the case that publication on Twitter is still "publication" for purposes of a defamation claim, and so Twitter users should, to borrow from the boilerplate of lawyers' letters from time immemorial, conduct themselves accordingly.
Selected commentary on Bill C-11 (The Copyright Modernization Act):
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