Category: Copyright

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Cinar Corporation v Robinson: Substantial Protection for Substantial Infringement – Part II

Part II of this two part article concerns damages and the use of expert testimony, alongside the implications arising from the case as a whole. Part I describes the factual background and trial history of the case, also delving into the ruling of the Court with regard to substantial infringement. SCC Analysis (Continued) Expert Testimony The Appellant’s argued that the trial judge had erred due to his acceptance of inadmissible expert evidence. According to Cinar Corp, “the question of whether a substantial part has been copied must be assessed from the perspective of the lay person in the intended audience...

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Cinar Corporation v Robinson: Substantial Protection for Substantial Infringement – Part I

There are many unsettled aspects of Canadian copyright law, ranging from Parliament’s intended scope of fair dealing principles to the proper evaluation of substantial infringement. The case of Cinar Corporation v Robinson, [2013] 3 SCR 1168 [Cinar Corp] constitutes the Supreme Court of Canada’s (“SCC”) most recent iteration on the latter. While the case reinforces a general desire by the Court’s to protect original works, the lessons to be drawn from it go beyond the purely legal realm. Part I of this two part article describes the factual background and trial history of the case, also delving into the ruling of the...

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Alberta v Access Copyright: Refining Fairness

With the cost of postsecondary education at a record high, textbooks and other written materials have become increasingly difficult for students to afford. Following the passing of the Copyright Modernization Act [CMA] in 2012, which amended the Copyright Act, an opportunity was provided to teachers regarding their ability to provide students with written materials within an educational setting at no cost. Unfortunately, this opportunity has been shrouded in a great deal of uncertainty. While the CMA builds on a number of common law principles which tend to confer powerful potential defenses upon users for instances of infringement, the polarization of...

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These Heels Were Made for Walking: Christian Louboutin S.A. v Yves Saint Laurent America Inc.

Last year, TheCourt.ca tackled the increasingly heated battle between two luxury fashion houses, Christian Louboutin and Yves Saint Laurent (YSL). Christian Louboutin, the famous French shoe designer best known for his heels with the red sole, sued Yves Saint Laurent for trademark infringement, claiming more than $1 million in damages. The battle began when Yves Saint Laurent came out with its Spring 2011 line, which featured monochromatic shoes. Although the shoes came in a variety of colours, Louboutin took issue with the red heels; the outer soles were painted in the same lacquered red that Louboutin had been using for...

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Tariff, Away: Re:Sound v Motion Picture Association of Canada

By now, readers are no doubt familiar with the Supreme Court of Canada’s (“SCC”) July 12, 2012 release of judgments on the pentalogy of copyright cases. TheCourt.ca continues with its ongoing coverage of the cases, by considering Re:Sound v Motion Picture Association of Canada, [2012] 2 SCR 376 [Re:Sound] in this post. Along with its 4 sister-judgments and the recent passage of Bill C-11 or the Copyright Modernization Act, SC 2012, c 20, this decision is considered instrumental in changing the direction of Canadian copyright law. In Re:Sound for instance, the SCC grappled with the question of whether a sound recording, when combined with...

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The Federal Court from a Writer’s Perspective: Richard Warman and the National Post v Mark Fournier and Constance Fournier

As a writer, there is always a desire of wanting readers to actually read your what I have spent hours pouring over, crafting intricate sentences in a way that best frame my thoughts. In the days of instant publication, getting re-tweeted constitutes a good day. This desire is tempered with the need to protect the integrity of my work, and to profit from it in some way, whether financially or through credit. Enter the copyright. On June 21, 2012, the Federal Court of Canada in Richard Warman and the National Post v Mark Fournier and Constance Fournier, 2012 FC 803...

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Finding the Silver Lining for SOCAN in SOCAN v Bell

Growing up in a large family required frequent trips to Costco or, as it was at the time, Price Club. My mother would often do the extremely large shopping trips on her way home from work. Sometimes, however, those trips would be on the weekend – and with it came an invitation to join in on the shopping. I’m going to preface this part of the story with a confession that I do not like grocery shopping: it’s a tedious chore that is on the verge of being replaced with a subscription to Grocery Gateway. It will likely surprise you...

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Amici Curiae : Toby’s Act, U.S.’s Battle Against Solitary Confinement and Canada’s New Copyright Reforms

Pride in Ontario: Amending the Ontario Human Rights Code Toronto is gearing up for what will be one of its proudest weeks yet. Ontario will not only be celebrating its booming pride community but also celebrating the Royal Assent of Bill 33, or Toby’s Act (Right to be Free from Discrimination and Harassment because of Gender Identity or Gender Expression). The Act amends Ontario’s Human Rights Code RSO 1990, c. H-19 with respect to gender identity and expression. Ontario is only the second jurisdiction in Canada to explicitly extend protection to gender expression and identity – the Northwest Territories was the first jurisdiction to do...

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SOCAN v Bell: The 30-Second Preview as Infringement or Fair Dealing?

Do you like to try before you buy? Also known as the “Apple iTunes” case, SOCAN v Bell considers whether the 30-second preview clips made available to consumers by online music retailers constitute an exception pursuant to s. 29 of the Copyright Act, RSC 1985, c C-42, which states that “[f]air dealing for the purpose of research or private study does not infringe copyright,” and if so, whether the use of these previews is fair.

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Golan v. Holder: Should the US be Singing a New Copyright Tune?

One night, you could listen to Sergei Prokofiev’s “Peter and the Wolf” with your friends, remix it with another tune and then pen a bestselling book titled Peter and the Wolf and Zombies. That would all change in 1994 with the signing of the Uruguay Round Agreements Act, a trade agreement that restored the copyright of foreign-created works in the US. Works like Prokofiev’s that had been in the public domain for decades were all of a sudden taken out. The impact of the trade agreement was extensive. Other notable works that lost their place in the public domain include...