Creativity Life Cycles : Canadian Trademark Agent and Lawyer : Joshua MacFadden : MacPherson Leslie & Tyerman Law Firm : Patents, Intellectual Property

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Canada's chief electoral officer granted The Pirate Party of Canada "party" status provided that they nominate a candidate in the next election.

Modelled after Sweden's Pirate Party, the Pirate Party of Canada's founders have an agenda focussed upon issues of patent reform (i.e. to ban patents on software, life forms, etc.), net neutrality, digital sovereignty, privacy protections (i.e. to cover an individual's digital data and information), but are perhaps best known for their positions with respect to copyright - specifically demands to allow for the free and legal download and use of songs, books, movies, etc. for any non-commercial use.  In light of the anticipated introduction of a new bill to amend the Copyright Act, running a candidate in the next Federal election may help to enlarge the profile of copyright and IP -related issues and the long-overdue update to existing legislation in the same way that the Green Party's involvement in the last election's televised debates focussed greater attention upon environmental issues.

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A Canadian man has been sentenced to jail time for recording movies via camcorder ("camming") in Montreal theatres and subsequently distributing the material for sale and/or rental over the internet.  Following a guilty plea, Geremi Adam, who operated online as MaVen, was sentenced to 2 1/2 months in prison along with 100 hours of community service and a two-year suspended sentence.

The notorious activities of MaVen attracted the attention of both the FBI and the RCMP and, along with other acts of movie piracy, resulted in maligning the reputation of Canada as a hotbed of movie piracy due to purportedly weak copyright protections and enforcement.  Indeed during 2006, prolific camming, music and movie piracy and the lack of consistency between United States and Canadian copyright laws resulted in Hollywood studios threatening to boycott Canadian distribution altogether.  

As a result, the federal government amended the Criminal Code in 2007 (Bill C-59) to provide harsher sentencing for recording, selling or renting illegal recordings of movies, including sentences of up to five years for camming movies for future sale or rental, while pursuing wide-ranging amendments to the Copyright Act (Bill C-32) .  While the MaVen case pre-dates the Criminal Code amendments, the former maximum sanctions contained in the Criminal Code  included a maximum of six months in jail and a $25,000 fine for distributing copyright material over the internet without permission.

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On July 20, 2009 Industry Canada  commenced a brief consultation period of July 20th through September 13, 2009 to consider amendments and updates to the Copyright Act. 

A website has been launched for consultation on amending the Copyright Act and additional avenues have been announced for the public and stakeholders to contribute comments including an online discussion forum, an online submission centre, town hall meetings in Montreal and Toronto (notably with "limited space available to the public), as well as session round tables currently scheduled as follows:

Schedule of Events
July 20: Vancouver - Round Table
July 21: Calgary - Round Table
July 29: Gatineau - Round Table
July 30: Montreal - Town Hall
August 5: Winnipeg - Round Table
August 27: Toronto - Town Hall

Follow the hyperlinks here to register for the town hall meetings in Toronto or Montreal, or alternatively, log in to the webcasts of the events.

Many readers will recall that the most recent attempt at updating the legislation (the controversial Bill C-61) died with the call of the 2008 election.  Nevertheless, and in view of the rather truncated and summer season efforts to consult on the current initiative, it seems likely that the previous consultation with the public and stakeholders and subsequent public debate throughout that process is likely to inform much of the direction for the current initiative.

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In an interesting development to an earlier story, Facebook Inc. has announced that users of the company’s popular social networking site will have what may well be an unprecedented role in determining the Terms of Use policies governing the site. 

In a seemingly direct response to the negative backlash from Facebook users following the company’s recent attempts to revise its website policies and in an effort to promote a democratic and transparent process for developing new terms of use, company founder and CEO Mark Zuckerberg today announced that two Facebook Groups have been created by Facebook Inc. to enable a "town-hall" forum to permit users to offer feedback on two proposed policies:

1. The Facebook Principles, which define user rights while utilizing the social networking service and which will serve as the underlying policy prior to the implementation of  further applications, policies, etc. by the Company; and
2. The Statement of Rights and Responsibilities, which will replace the existing Terms of Use

Each of these documents will be posted for a month-long comment period closing at 12:01 am PDT on March 29 within which time Facebook Inc. Subsequent to that date, Facebook has indicated that they will republish the two policies along with revisions and comments in response to user feedback. 

Anyone utilizing the website or simply interested in the issues of privacy, copyright and technology law  in the context of user-generated online social networking sites is encouraged to visit the Facebook blog.

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*

A recent Internet controversy concerning the successful social networking site Facebook highlights the challenges in amending website Terms and Conditions following changes to the web site's Terms of Service have resulted in numerous challenges, questions, and protest groups users over the ownership of user-generated content. 

In a story which broke on the consumer rights advocacy blog, Consumerist.com , Facebook Inc. attempted to clarify its Terms of of Service resulting in confusion concerning the legal implications for the new provisions, particularly where users elect to close or otherwise inactivate a user account.  Whereas both documents essentially provide for a grant of license from a user to Facebook for the use of user-generated content (i.e. photos, videos, posts, applications, etc.), the new agreement deletes a prior clause which read:

You may remove your User Content from the Site at any time.  If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.  [emphasis added]

Effectively, the changes appeared to suggest that Facebook Inc. intended to assert ownership of user content or, at the very least a non-exclusive, perpetual license to continue to use, post and distribute such content even if a user account is closed. 

In an effort to resolve concerns over the issue, Facebook Inc.'s founder and CEO Mark Zuckerberg announced a re-introduction of the earlier agreement while stating on the corporate blog that  "[o]ur philosophy is that people own their own information and control who they share it with... When people share information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they've asked us to share it with."

Generally speaking, the ownership of user-generated content will be governed by copyright protections and thus such materials are owned by their originating author unless transferred to a third party by way of assignment.  In Canada and many other countries, such a transfer must also include a waiver of moral rights which refer to rights to attribution and rights to protect the integrity of the work.  

This story certainly serves as a cautionary warning to businesses utilizing customer or user-generated content and the challenges which may result when introducing new contractual terms to an existing relationship - particularly one with a wide and online following.  For users of social networking websites this story highlights the need to closely reviewTerms of Use/Service and Privacy Policies in order to gain a full appreciation for the impact of such provisions on your existing legal rights.

 *Facebook and the Facebook Logo are trademarks of Facebook Inc.

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The Government of Saskatchewan recently introduced Bill 68 to provide legislative protection for artists and their intellectual property.  Significantly, the legislation, entitled The Arts Professions Act, affirms and recognizes:

• the important contribution of artists to the cultural, social, economic, and educational enrichment of Saskatchewan;
• the value of artistic creativity in advancing Saskatchewan's cultural, social, economic and educational life;
• the valuable contribution of artists to Saskatchewan's cultural heritage and development; and
• the importance of professional artists of being fairly compensated for the creation and use of their artistic works.

Notably, the Act requires the execution of written agreements when engaging qualifying "Professional Artists" for goods and services including clauses addressing the financial consideration due, the terms of payment, dispute resolution mechanisms, copyright waivers (if applicable), the transferability/assignability of the agreement, etc.  It is anticipated that once the Act comes into force June 1, 2010, the certainty provided by the legislation will formalize and standardize contracting between Professional Artists and engagers thereby mitigating against prolonged disputes over the terms of sale or transferability of artistic goods and services and the underlying intellectual property rights relating thereto. 

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Apple Inc. has once again made a splash at the annual Macworld Expo trade show announcing that is has reached agreement with several major and independent record labels to distribute digital music from the iTunes store without copy protection software known as digital-rights management or DRM. 

In addition to permitting new purchases of DRM-free music, Apple Inc. is allowing customers to "upgrade" their current music library to DRM-free copies for a premium.  As an added bonus, DRM-free music purchases will be available from iTunes in high quality 256 kps encoding in contrast to competitors offering DRM-free purchases in mp3 format.

The announcement does, however, come with a trade-off:  whereas iTunes customers had previously enjoyed flat-rate pricing ($0.99), variable pricing will now be introduced depending on song/artist popularity, date of release, etc.

DRM software, intended to inhibit illegal file sharing, also prevented iTunes customers from sharing purchased music among multiple devices and equipment thereby requiring additional music purchases for use on upgraded, replacement or alternate music devices.  It remains to be seen whether this development is tied to the December 18, 2008 announcement by the Recording Industry Association of America to end the strategy of suing computer users engaging in file swapping and uploading.  

Changes to DRM policies and enforcement practices in the United States will undoubtedly add further complications to the development and introduction of copyright reform legislation in Canada which has been the subject of ongoing negotiation and debate over the appropriate balance between the interests of artists, recording labels and the consuming public amidst tremendous technological advancements and their impact upon the conventional sales and distribution models of the entertainment industry.

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