Author: Gerald Kerr-Wilson

About Gerald Kerr-Wilson

Jay Kerr-Wilson is the co-leader of the Technology, Media and Telecommunications group and practices primarily in the areas of communications and public law, with a particular emphasis on copyright.

Analysis

“Making Available”– The Supreme Court Rules That There Is Only One Royalty Fee To Be Paid

picture of the the entrance of the Supreme Court of Canada, or Cour Supreme du Canada, in Ottawa. The Supreme Court of Canada is the highest court of Canada, the final court of appeals in the Canadian justice system. Its decisions are the ultimate expression and application of Canadian law and binding upon all lower courts of Canada

Fasken successfully represented several of the respondents before the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30. In its recent decision, the Supreme Court conclusively rejected attempts by SOCAN to “double dip” on copyright royalties via the making available of copyrighted works and in the process helped clarify a number of important legal issues. Some of these issues are unique to copyright law, while others have broader relevance, including issues related to determining the standard of review post-Vavilov and how treaties should be used to interpret statutes.

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Analysis, Canada

Federal Court clarifies that proper process for bringing a claim under the notice-and-notice regime—somewhat

Internet Service Providers (ISPs) have seen an increase in litigation related to Canada’s notice-and-notice regime since it was added to the Copyright Act in 2012. Plaintiffs, generally the owners of copyright in films, have brought claims in Federal Court using various procedures. The Court recently released a decision offering guidance on the proper way to do so although there is still some uncertainty on this point.

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Analysis, Copyrights

Video Game Streamers: Free promotion, copyright infringement, or both?

Just before New Year, a controversial piece of US legislation tucked into a COVID-19 relief package had people who stream video gameplay online concerned that their livelihood was about to be criminalized. While a careful reading of the legislation reveals that the initial reaction was unwarranted and perhaps overblown, it does raise some interesting questions about the legal status of “streamers” and the interplay between game publishers and online video content creators.

Streamers use internet platforms such as Twitch and YouTube to broadcast videos of themselves to their fans and followers. Some of the most popular streamers will play videos games on camera during the streams. These gameplay videos are sometimes referred to a “Let’s Play” videos (as in, “Let’s Play Animal Crossing” or “Let’s Play Assassin’s Creed”). They earn revenue by offering subscriptions, accepting donations from fans, promoting products and services, and selling merchandise. The videos are live streamed so viewers can interact in real time with the streamer using a chat function. Many of the videos are also stored and can be viewed on-demand later.

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Analysis, Copyrights, COVID

Moving Your Business Online Could Raise Copyright Issues

Canadians have made it through the first four weeks of social distancing and are now settling into new routines as much as possible. For many, that means turning to online resources for our business, social, entertainment, educational, and fitness needs.

In response to the COVID-19 pandemic, there is a proliferation of innovative online offerings that are enabling our businesses to continue operating, offering a sense of community, continuing education, or even just providing ways for busy parents to entertain their kids for a couple of hours. In a time of extreme isolation, the internet is bringing Canadians together and helping us to stay connected.

One thing that has not changed, however, is copyright law. Although the states of emergency declared across Canada and around the world are disrupting many things, the Copyright Act remains in force.

Developing new online services that attempt to replicate in-person interactions and transactions may trigger some unexpected copyright obligations.

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Analysis, Canada, Copyrights

Minority Report: How Canada’s Electoral System Disrupts Copyright Reform

Canadian elections have a tendency to disrupt copyright reform initiatives and the 2019 contest which resulted in a minority Liberal government under Prime Minister Justin Trudeau is no exception.

The trend started in 2005, when the Liberal Government of Prime Minister Paul Martin introduced Bill C-60, An Act to Amend the Copyright Act, which was Canada’s first attempt at adopting the comprehensive amendments required to ratify the two WIPO internet treaties that had been negotiated in 1996 and signed by Canada in 1997.

The minority Liberal government was defeated by a vote of no confidence in November 2005, killing Bill C-60.

After the general election in January 2006, the defeated minority Liberal government was replaced by a minority Conservative government under Prime Minister Stephen Harper. The Conservatives tabled Bill C-61, An Act to Amend the Copyright Act, in June 2008. The bill was substantially similar to the Liberals’ copyright reform legislation.

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