Copyright...copy — of a work, sound recording or fixation of a performer’s performance or of a...

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca

McCarthy Tétrault Advance™ Building Capabilities for Growth

Barry B. Sookman [email protected] 416-601-7949 January 22, 2015

LSUC: The Year in Review 2014: Copyright

14066455 [Full Version]

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 14066455

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Legislative Developments

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WIPO Internet Treaties ratification ¬ WPPT and WIPO ratification August 13, 2014

¬ WPPT Notification No. 86 Ratification by Canada ¬ WCT Notification No. 81, WIPO Copyright Treaty Ratification by Canada

¬ Making available right (MAR) for foreign sound recordings in effect on August 13, 2014

¬ Statement Limiting the Right to Equitable Remuneration of Certain Rome Convention or WPPT Countries, SOR/2014-181 July 14, 2014 ¬ Certain limitations to right to collect equitable remuneration for sound

recordings for makers of following countries: Barbados, Bolivia, Cabo Verde, Congo, Costa Rica, Japan, Lebanon, Lesotho, Monaco, People’s Republic of China (including Hong Kong and Macao), Singapore, United States, and Vietnam

¬ U.S., radio broadcasts of terrestrial radio stations, (excluding transmissions by Internet, satellite, and mobile devices), background music for businesses (subject to restrictions), pre-1972 sound recordings.

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Notice and notice

¬ Order Fixing the Day that is Six Months after the Day on which this Order is published as the Day on which Certain Provisions of the Copyright Act Come into Force, P.C. 2014-675 June 12, 2014

¬ Explanatory Note: ¬ “The notice and notice regime will legally require Internet intermediaries,

such as Internet Service Providers (ISPs), hosts and search engines, to take action upon receiving a notice of alleged infringement from a copyright owner…

¬ the Government is bringing into force these provisions after determining that the regime will function without regulations, as the elements in the legislation are sufficient…

¬ To provide Internet intermediaries the time needed to implement or modify their systems before the provisions are in force, the provisions will come into force six months after the publication of this Order in Council.” (January 2, 2015)

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Combating Counterfeit Products Act ¬ Bill C-8, Combating Counterfeit Products Act received royal assent, December 9, 2014.

In force, December 9 2014 effective on royal assent, (copyright related) Sections 27(2.11), (2.12), 42(e-g), 59(1)(d.1).

¬ Civil: S.27 (2.11) It is an infringement of copyright for any person, for the purpose of doing anything referred to in paragraphs (2)(a) to (c), to export or attempt to export a copy — of a work, sound recording or fixation of a performer’s performance or of a communication signal — that the person knows or should have known was made without the consent of the owner of the copyright in the country where the copy was made.

¬ Criminal: Section 42 (e) and (g) “possesses, for sale, rental, distribution for the purpose of trade or exhibition in public by way of trade, an infringing copy of a work or other subject-matter in which copyright subsists;” and “(g) exports or attempts to export, for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists.”

¬ Criminal Code; 59. (1) The definition “offence” in section 183 of the Criminal Code is amended by adding “(d.1) section 42 (offences related to infringement of copyright of the Copyright Act’, to enable police to seek judicial authorization to intercept private communications in investigations relating to those offences. See, Legislative Summary of Bill C-8.

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Combating Counterfeit Products Act ¬ Order Fixing January 1, 2015 as the Day on which Certain Provisions of the

Act Come into Force, P.C. 2014-1451 December 12, 2014 ¬ Fixed January 1, 2015 as the day on which sections 2, 5 and 6, subsection

7(6) and sections 43, 44 and 60 of that Act come into force. ¬ “The Act enacts new border enforcement measures, which will include the

creation of a request for assistance (RFA) system and the enabling of customs officers to detain goods suspected of infringing copyright or trademark rights. The Act also amends subsection 107(5) of the Customs Act to allow customs officers to share certain information relating to the detained goods with rights owners. These new border measures will further support the civil enforcement of these intellectual property rights by giving the rights owners the information and assistance necessary to pursue a remedy in civil court or to reach an out-of-court settlement with importers and exporters of infringing goods.”

¬ Note, not all parts of Bill C-8 are in force.

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Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42

¬ Whether artists’ associations are precluded from bargaining minimum fees for use of existing artistic works in agreements negotiated under Status of the Artist Act as being a conflict with the Copyright Act.

¬ “The collective bargaining conducted by artists’ associations such as CARFAC/RAAV under the SAA in respect of scale agreements covering existing artistic works does not contradict any provision of the Copyright Act. Artists’ associations are simply bargaining agents. They have not taken or granted, and do not purport to have taken or granted, any assignment or exclusive licence, or any property interest, in any artist’s copyright.”

¬ “Artists therefore have two options when dealing with federal governmental producers for the use of their existing works. One option is to assign or license their copyright to a collective society or appoint that society as their authorized agent. In that case, tariffs set under the Copyright Act, and not the SAA and any scale agreements for their sector, will apply to the works. The other option is to deal directly with the producer, in which case they will be bound by any applicable SAA scale agreements. Within this option, artists may either accept the minimum fees, terms and conditions set out in the scale agreements and model contracts, or they can attempt to negotiate higher fees or more favourable terms.”

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Subsistence, Authorship and Ownership

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Geophysical Service Incorporated v. Canada-Nova-Scotia Offshore Petroleum Board, 2014 FC 450

¬ Was GSI’s processed seismic data in SEG-Y format infringed by a seismic line published by the Board where 8.5% of the data was derived from GSI’s data?

¬ “No copyright can subsist in geophysical data or seismic data. The copyright must exist in the compilations analysis thereof…

¬ “I think …there remains at least a serious issue over copyright ownership given all the facts that otherwise demonstrate GSI’s ownership of the data and major role in its collection and compilation.”

¬ “However, I agree with the respondent that there appears to be no serious issue about the alleged infringement…given the lack of any objective similarity between the infringing work and the copyrighted work, or at least a substantial part thereof, for Figure 5.5 to be described as a copy, reproduction or adaptation of the latter….

¬ Given the limited contribution of the applicant’s data to Figure 5.5 and its extensive manipulation and reworking by the Board, with the overwhelming majority of the data being provided from other sources, I do not find that Figure 5.5 constitutes a reproduction or adaptation such as to constitute an infringement of GSI’s copyright.”

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Denturist Group of Ontario v. Denturist Association of Canada, 2014 FC 989

¬ Does copyright subsist in the five-digit numerical codes and corresponding description of denturist services contained within the DAC Procedures Codes and DAC fee Guides?

¬ “There is no question that the five-digit codes are functional… Further, the descriptions of the services associated with the codes are primarily functional in nature as well. Moreover, the five-digit codes and associated service descriptions are required by third party insurers and service providers in order for all denturists in Ontario to be paid for services rendered to patients. The codes, in their modified forms over time, have continuously been used since the 1970’s until the present date by denturists as required, regardless of whether they are members of the DAC or the DAO. The insurance companies will only accept one set of codes to render payment to denturists, making the five-digit codes a professional standard and a necessity for denturists to be reimbursed by insurance companies and third party service providers.

¬ I do not find that there is sufficient originality or skill and judgment to justify copyright subsisting in mere five-digit numerical codes and/or the functional descriptions of the denturist services associated with those codes.”

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Sports Data Pty Ltd v Prozone Sports Australia Pty Ltd [2014] FCA 595

¬ Does copyright subsist in input criteria to provide statistical analysis of rugby matches?

¬ “It is no doubt because Sports Data appreciates the difficulties involved in establishing the requisite originality or authorship of individual event descriptions that it claims copyright only in the compilation. Sports Data does not point to the originality of expression in the event descriptions themselves. Rather it claims that the relevant database tables are a compilation or compilations. In that circumstance, copyright protects the particular form of expression that is, the compilation itself. This includes the selection, structure and arrangement of the event descriptions…

¬ Whilst the question is not easy, in my opinion Sports Data has at least an arguable case that copyright subsists in the compilation of event descriptions that is found within fields in the specified tables extracted from the NRLHistory database. Whilst it might seem somewhat bizarre to describe the compilation in the database table as a literary work, that expression is specifically defined in the Act. In my opinion, there is evidence to a prima facie standard that the compilation of event descriptions and their selection and arrangement involves sufficient originality and involved sufficient effort and exertion on the part of the authors to support the conclusion that copyright subsists.”

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Sports Data Pty Ltd v Prozone Sports Australia Pty Ltd [2014] FCA 595

¬ Is it infringement to copy portions of the compilation for a competing statistical analysis service?

¬ “There are parts of the two works that are the same or similar, but in my opinion they are not substantial parts. That is particularly the case when the comparison is approached on the basis that Sports Data’s work is said to be a compilation. It is not to the point that some individual event descriptions are the same. Sports Data would need to demonstrate substantial identity of selection, structure and arrangement. In my opinion it has not done so…

¬ The second difficulty for Sports Data is that it has failed to make out a prima facie case of causation.

¬ The difficulty for Sports Data is that the only available inference is that at some stage during Prozone’s consultations with the NRL and NRL Clubs, Prozone received some information which included event descriptions that had been used by Sports Data. As already indicated, however, there is no evidence, and it cannot necessarily be inferred, that Prozone received all or a substantial part of Sports Data’s copyright work. Moreover...It unquestionably involved independent work and effort on the part of Prozone. It did not necessarily involve copying, let alone substantial copying, of the selection, structure or arrangement of input criteria in Sports Data’s copyright work. In my opinion, at least at this stage, no such inference is available.”

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Animal Welfare International Inc. v. W3 International Media Ltd., 2014 BCSC 1839

¬ Is a web site a work in which copyright subsists? ¬ “AWI submits that based on the considerations relevant to determining originality,

as outlined in the jurisprudence, the originality of the website is reflected in its general look and feel, which encompass the products selected to appear on the homepage, the size of the product photos, the size of the price text, the selection of an image to function as a logo for the website, the location of the logo, and the general location of images, text, and icons on the webpage…

¬ There is no evidence the website was created using standard form templates or standard colour and icon schema. The atypical placement of icons, varied icon sizing, decisions as to where top selling products would be listed, if prices would be listed on the homepage, how often the products on the homepage changed, and the overall website layout and colour scheme are all indicative of CVT being an original creation…

¬ I am satisfied that AWI has made out its claim that the CVT website was an original work, that AWI was the owner of the copyright, and that W3infringed its copyright by substantial reproduction of the CVT website without the owner’s permission as required by the CA.”

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Tremblay v. Plourde, 2014 QCCS 201

¬ Is copying text from pages of a website infringement? ¬ “There is evidence that the defendant, to build his site, has largely cottoned

his texts from the web page, the plaintiff property. It is not denied. ¬ This webpage covered under the Copyright Act is the property of the plaintiff. ¬ Indeed, the Copyright Act provides in Article 2 that the computer program is

a literary work… ¬ the defendant unlawfully appropriate text, fruit of the efforts and toil

developed over many years. The court will arbitrate a sum of $ 15,000 can understand that all these efforts when copied and duplicated have both a direct and indirect impact on theft of intellectual property, which is both shocking because of the hard work and vexing on the intellectual effort of conception. This amount includes both an amount related to the cost of development, the applicant has determined a value of $ 218,000 to its financial statements, and another on the aspect of the violation.” (Google Translate)

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I.J. v. J.A.M., 2014 BCSC 89

¬ Is an idea for a computer architecture a work? ¬ “The “Work” is a business system using the computers of DC at SCMI and

is not capable of protection under the Act. The Work is not a work in which copyright may subsist within the meaning of the Act…

¬ The fact that the Act does not protect ideas means that there is no copyright in any arrangement, system, scheme or method for doing a particular thing or process: Delrina Corp. (c.o.b. Carolian Systems) v. Triolet Systems Inc. (2002), 58 O.R. (3d) 339 (C.A.) at para. 35.

¬ While the Amended Notice of Civil Claim describes the “Work” as an “architectural design”, it is clear that the “Work” does not meet the definition of “architectural work”. It is not a building or structure or model thereof. At best, the Plaintiff and her team implemented an idea as to how to reshape the nature of the order tracking and shipping system that was in place at SCMI.”

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Bank of Montreal v Rogozinsky, 2014 ABQB 771

¬ Is there a “common law” copyright in a name? ¬ “Ms. Rogozinsky’s November 14, 2014 affidavit included a document entitled

“Common law Copyright Notice”…In brief, this is another foisted unilateral agreement that claims if someone uses Ms. Rogozinsky’s name without her permission then she can bill them $1 million. This is the alleged basis for $6 million of Ms. Rogozinsky’s counterclaim.

¬ One of the alleged occasions where the Bank breached Ms. Rogozinsky’s “Common law Copyright” in her name was that her name was used, without authorization, on the Bank’s statement of claim.”

¬ “Meads provides a thorough rebuttal to this entire concept: there is no such thing as a “common law” copyright or trade-mark as both property interests are the result of legislation (paras 501, 503), copyright cannot subsist in a personal name (para 502).”

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Oracle America, Inc. v Google Inc. 750 F.3d. 1339 (CAFC May 9, 2014)

“It is undisputed that the Java programming language is open and free for anyone to use… it is also undisputed that Google could have written its own API packages using the Java language. Google chose not to do that. Instead, it is undisputed that Google copied 7,000 lines of declaring code and generally replicated the overall structure, sequence, and organization of Oracle's 37 Java API packages. The central question before us is whether these elements of the Java platform are entitled to copyright protection. The district court concluded that they are not, and Oracle challenges that determination on appeal. Oracle also argues that the district court should have dismissed Google's fair use defense as a matter of law.”

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“Because we conclude that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection, we reverse the district court’s copyrightability determination with instructions to reinstate the jury’s infringement finding as to the 37 Java packages. Because the jury deadlocked on fair use, we remand for further consideration of Google’s fair use defense in light of this decision.”

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¬ Are APis inherently not protectable by copyright as being a “method of operation”?

¬ Are APis inherently non-protectable where they must be copied for compatibility purposes?

¬ If an API becomes widely known and popular e.g. an industry standard, does it lose copyright protection?

¬ Do the doctrines of merger, scenes a fair, or short phrases prevent APIs from being protected by copyright?

¬ Does copyright protection for APIs extend only to declaring code and implementation code or does it also include the structure of API packages e.g. packages containing classes containing methods (or functions) and related interfaces?

¬ Is it a fair use to copy APIs?

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Flo & Eddie, Inc. v. Sirius XM Radio, Inc. 2014 WL 6670201 (S.D.N.Y., Nov. 14, 2014)

¬ Does U.S. common law copyright provide a performance right in pre-1972 sound recordings?

¬ “In short, general principles of common law copyright dictate that public performance rights in pre–1972 sound recordings do exist. New York has always protected public performance rights in works other than sound recordings that enjoy the protection of common law copyright. Sirius suggests no reason why New York—a state traditionally protective of performers and performance rights—would treat sound recordings differently.”

¬ See, also, Flo & Eddie, Inc. v. Sirius XM Radio, Inc. 2014 WL 7178134 (S.D.N.Y., Dec. 12, 2014) denying motion for reconsideration; Flo & Eddie, Inc. v. Sirius XM Radio, Inc. (C.D.Cal., Sep. 22, 2014) also finding a common law performance right in pre-1972 sound recordings; Capital Records, LLC v Sirius XM Radio, Inc (Sup.Ct.Cal. Oct. 14, 2014) recognizing a public performance right in sound recordings in California.

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Garcia v. Google, Inc., 766 F. 3d 929 (9th.Cir. July 11, 2014), (rehearing en banc ordered)

¬ Does the performer Garcia have a copyright in her performance in Innocence of Muslims?

¬ “Garcia may assert a copyright interest only in the portion of "Innocence of Muslims" that represents her individual creativity, but even if her contribution is relatively minor, it isn't de minimis. See Feist, 499 U.S. at 359, 363, 111 S.Ct. 1282. We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail based on the record and arguments before us.”

¬ See also, Conrad v. AM COMMUNITY CREDIT UNION (7th. Cir. April 14, 2014), (The “Banana Lady” did not have a copyright in performing singing telegrams. “The performance itself was not copyrighted or even copyrightable, not being "fixed in any tangible medium of expression…To comply with the requirement of fixity she would have had either to have recorded the performance or to have created a written "dance notation" of it.”

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Klinger v. Conan Doyle Estate, Ltd., 755 F. 3d 496 (7th. Cir. June 16, 2014)

¬ “We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements — including characters covered by the expired copyright — become fair game for follow-on authors… The copyrights on the derivative works, corresponding to the copyrights on the ten last Sherlock Holmes stories, were not extended by virtue of the incremental additions of originality in the derivative works.

¬ And so it is in our case. The ten Holmes-Watson stories in which copyright persists are derivative from the earlier stories, so only original elements added in the later stories remain protected. Id. at 49-50. The "freedom to make new works based on public domain materials ends where the resulting derivative work comes into conflict with a valid copyright," Warner Bros. Entertainment, Inc. v. X One X Productions, 644 F.3d 584, 596 (8th Cir. 2011) - as Klinger acknowledges. But there is no such conflict in this case.”

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Atlantic Canada Regional Council of Carpenters, Millwrights, and Allied Workers v. Maritime Environmental Training Institute Ltd., 2014 NSSC 64

¬ Is a person that commissions a work (a training manual) a joint author? ¬ “Although it is not required that joint authors make an equal contribution, the

joint author must made a substantial contribution to the expression of the ideas.”

¬ “I have carefully read the affidavit evidence of Gus Doyle. The applicants have failed to convince me, on the civil standard of the balance of probabilities, that the scaffolding manual was a work of joint authorship. His affidavit evidence does not establish in any manner, the applicants’ contribution to the creation of this work. His affidavit consists of bare assertions as to ownership of the work. It appears to me to be a commissioned work written by the unknown UK company. I am persuaded that the UK company was the original author of the manual in whom the copyright would have vested in 1991. Clearly there was no assignment of the copyright by the UK company.”

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Flansberry (Kapture Design) c. 6548890 Canada inc. (Turbo Marketing), 2014 QCCQ 10963

¬ Does a person that commissions a graphic design own the design? ¬ “Counsel for the Plaintiff has devoted much effort in argument, to draw a

parallel between the modern role of the graphic designer and he once played by the photographer who manipulated boards and negative. This approach would favor his client giving it the role of the one who commands a work to a photographer against compensation as provided for in Article 13 (2) CA.

¬ With respect, the Tribunal can not assimilate the work involved in photography. The provisions relating to photography controlled by a third party, are an exception to Article 13 (1) CA in favor of the creator. This exceptional regime must be interpreted restrictively…

¬ the absence of written assignment is fatal to the one who wants to own the work of another that he is the artistic creator of the work under copyright.” 24

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Prolite inc. c. Lasanté, 2014 QCCS 4727

¬ Does a person that hires an independent contractor to develop a website own the site in the absence of a written agreement?

¬ “The outcome of the dispute lies in the contractual relationship of the parties in late 2003 and early 2004, and not in the interpretation of the Copyright Act …

¬ The Court notes that at the time of Internet knowledge was limited and Lasanté was much more experienced than James…

¬ The Tribunal accepts the testimony of James to the effect that in receiving regular bills Lasanté or business, it has always understood that the website belonged to the plaintiff…

¬ James may be a specialist in manufacturing caravans but he is not a specialist in Internet and interpretation of the Copyright Act .The Tribunal accepts that at all relevant times, until the events of 2013, James was convinced that his company plaintiff owned websites have paid for the website design, various maintenance and updates to over the years.

¬ The Court concludes that the websites are the property of the plaintiff and the company is entitled to claim the access passwords and codes.”

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Lachance c. Productions Marie Eykel inc., 2014 QCCA 158

¬ Does an employee own copyright in a work created in the course of employment if there is a significant amount of creativity expended in creating the work?

¬ “Without necessarily share all the reasons for the trial judge, the Court is of the opinion that in this case it has properly applied the conditions necessary for the application of Article 13 (3) in view of the evidence adduced. Indeed, the employer owns the copyright in the work of his employee when the following conditions are met: 1) a work is created under an employment contract; 2) such a work is created by an employee in the course of employment; and 3) there is no stipulation to the contrary…

¬ Finally, contrary to what the appellant contends, the application of this article is not attenuated by the degree of creativity that he was able to show in the performance of its tasks, nor by destination of the work. In short, creativity or destination is not among the conditions for the application of Article 13(3).” (Google Translate)

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Mejia v. LaSalle College International Vancouver Inc., 2014 BCSC 1559

¬ Whether a photo taken by a teacher of students in a classroom depicting a student’s project were made “in the course of employment” under s13(3)?

¬ “In Grayson v. Wellington Insurance Co. (1997), 1997 CanLII 4112 (BC CA), 37 B.C.L.R. (3d) 49… I note that Newbury J.A., at para. 26, commented generally on the meaning of the phrase “in the course of employment” in a different context, as follows:

¬ The phrase "in the course of employment" has long been construed widely enough to include work done by an employee while he is "proceeding generally about his master's affairs and not off-duty entirely”…and it has been held that "in the course of" is wider than the word "during“…I also note the recent decision of the Federal Court of Appeal in Blanchard v. Canada [1995] 2 C.T.C. 262, where Linden J.A. reasoned that by using the phrases "in the course of" and "by virtue of" in addition to the phrase "in respect of employment" in s. 6(1)(a) of the Income Tax Act, Parliament had intended to "emphasize that only the smallest connection to employment is required to trigger the operation of the section."”

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Mejia v. LaSalle College International Vancouver Inc., 2014 BCSC 1559

¬ “The plaintiff was hired by LaSalle as an instructor and not as a photographer. While an instructor “proceeding generally about his master's affairs” could possibly be engaging in a wide variety of activities, whether paid or unpaid, I do not view the taking of photographs to be an example of such an activity. In the circumstances of this case, the taking of photographs was not an activity that was generally considered to be within the duties of the plaintiff instructor, and there was no contractual agreement that he do so. Though the photograph is connected with the employer LaSalle by virtue of its subject and the location in which it was taken, I do not view it as being connected with the plaintiff’s employment.

¬ I find, therefore, that the photograph was not made in the course of the plaintiff’s employment with LaSalle and, as such, s. 13(3) of the Copyright Act does not apply. I find, pursuant to s. 13(1) of the Copyright Act, that the plaintiff is the first owner of the copyright of the photograph in question.”

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Kennedy v. Ruminski, 2014 FC 526

¬ What is an agreement to the contrary in s13(3)? ¬ “The parties agree that they have all made contributions to LoL (Law of

the Lan) Project and Product (in final development), and wish to establish the share in the IP (Intellectual Property) that accrues to each of the parties.

¬ Mike Kennedy (Product Conception & Project Financing) 80% ¬ Val Ruminski (Database Design & Programming) 20%”

¬ “The Memorandum purports to create “shares of IP” and/or “interests in IP”. This is inconsistent with complete ownership of copyright in the works created during the course of the employment relationship belonging to either party.”

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Innomax Group Inc. c. Rouma Homes Inc., 2014 QCCS 1790

¬ Does a nunc pro tunc assignment permit actions for infringement before the date it was signed?

¬ [W]e are faced with conflicting jurisprudence: on one hand, decisions Bradale Distribution Enterprises Inc . and Harmony Consulting Ltd. , giving rise, in some circumstances, the reconnaissance contracts nunc pro tunc assignment copyright and the other side, the decision JL . De Ball Canada Inc ., oust action brought by the assignee, based on violations of law earlier author on the date of signing of the sale nunc pro tunc …

¬ given the conflicting case law on copyright assignments nunc pro tunc, it would be premature to end the use IM at this point, without allowing him to provide evidence the circumstances surrounding the alleged verbal assignment in June 2009 and as to the intentions of the transferor, Management Innomax Ltd., on that date.” (Google Translate).

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Wanless v. Mayfair Music Publications Inc., 2014 ONSC 4806

¬ Does an agreement to sell copies of a work have to be in writing under s13(4)?

¬ “Counsel for Mr. Loweth contends that it is pointless to grant Ms. Wanless’ motion to amend her statement of claim, given that, by virtue of section 13(4) of the Copyright Act (“the Act”), the agreement between Ms. Wanless and the late John Loweth had to be in writing in order to be valid.

¬ I disagree. Section 13(4) of the Act indicates that any assignment of a copyright must be in writing to be valid. The section does not state that an agreement between two persons in which one gives the other the right to sell copyrighted material must be in writing. To that extent, Ms. Wanless’ oral contract with John Loweth is not invalid.”

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Cultural Industries Development Corporation (SODEC) c. Canadian Broadcasting Corporation (CBC), 2014 QCCS 951

¬ Does an exclusive license to produce and televise a French-language program transfer a property interest in the copyright?

¬ Under French law, a license, even exclusive, does not transfer property rights in copyright.

¬ A sublicense construed under Ontario cannot be used to give more rights to the sub-licensee (CBC) as the licensee (Distraction) received under the license.

¬ [T]he Supreme Court of Canada in 2007 in the case Euro-Excellence inc . c. Kraft Canada inc. confirms that there is a distinction and that the distinction between assignments and exclusive licenses is important and significant…

¬ the Supreme Court confirmed that it is not for nothing that Article 2.7 of the Copyright Act defines the exclusive license as "permission granted to the licensee to perform act covered by copyright exclusively, whether granted by the copyright owner or by a person who already holds an exclusive license ...” (Google translate).

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Planification-Organisation-Publications Système (POPS) Ltée v. 9054-8181 Québec Inc., 2014 FCA 185 ¬ Did the trial judge err by granting an implied license to use and make

adaptations to source codes where the plaintiffs had asked for a right to use computer programs?

¬ “The respondents’ argument to the effect that the user licence sought necessarily included access to the source code is in no way supported by the evidence adduced at the hearing. The respondents concede in their memorandum that the judge did not indicate in his reasons that such access was a condition of the implicit user licence or that such access was necessary for the use requested….

¬ However, neither the judge nor this Court can award more that what was sought in the proceeding by the respondents…

¬ I therefore find it necessary to reformulate the judgment to limit the scope of the licence to the use of all versions of Ceres, Omega, Epsilon and Comex existing at the end of the collaboration…It is also necessary, in my view, to remove the reference to the source code from paragraph viii) of the judgment and to amend it so that it requires that only the versions described above be provided.”

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Planification-Organisation-Publications Système (POPS) Ltée v. 9054-8181 Québec Inc., 2014 FCA 185 ¬ Did the trial judge err by finding that a non-exclusive license was perpetual and

not revocable for cause? ¬ “In my opinion, there is no generally applicable rule of law that would preclude a

non-exclusive user licence from being non-revocable when the licensee has provided consideration. Neither the law nor the Act restrict the parties’ contractual freedom in this regard. In every case, it is for the trial judge to determine the terms that are implicit in the contract in light of all of the relevant contextual elements in civil law.

¬ This is exactly what the judge did in this case and the appellants have not established the existence of any palpable or overriding error in this regard. Naturally, and as the appellants argue, the expression “non-revocable” must not be understood in its strictly narrow sense. It certainly means, as the judge indicated, that the appellants cannot repudiate the licence unilaterally or wantonly. It is not necessary to attempt to define the situations in which such a licence could be repudiated because in this case and for the reasons that follow I am satisfied that the appellants had no such right, whether the licence was revocable for misconduct or non-revocable.” 34

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Exclusive Rights

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Canadian Broadcasting Corporation v. Sodrac 2003 Inc 2014 FCA 84

¬ Do broadcasters have to pay for the right to make ephemeral copies of musical works synced in programming under Bishop v Stevens or was that decision overruled in ESA?

¬ “In my view, this passage [from ESA] reaffirms the fundamental distinction between reproduction and performance (communication to the public by telecommunication) that the Court articulated in Bishop v. Stevens. Nothing in this passage, or elsewhere in ESA, would authorize the Board to create a category of reproductions or copies which, by their association with broadcasting, would cease to be protected by the Act. ESA did not explicitly, or by necessary implication, overrule Bishop v. Stevens.

¬ As a result, I am unable to accept the Broadcasters’ argument that the comments about technological neutrality in ESA have changed the legal landscape to the point where the Board erred in finding that incidental copies are protected by copyright. The Broadcasters’ argument with respect to technological neutrality fails.”

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Canadian Broadcasting Corporation v SODRAC 2003 Inc. Supreme Court file 35918

“Intellectual property law — Judicial review — Copyright — Licenses — Licensing societies — Royalties — Ephemeral copies — Application by broadcaster for review of licenses issued by Copyright Board allowed in part — Collective society imposing royalties on producers of content and broadcasters — Licences allow collective society to collect royalties for copies incidental to use of new broadcast technologies — Whether the Court of Appeal erred in refusing to apply the principle of technological neutrality in its interpretation and application of the Copyright Act, R.S.C. 1985, c. C-42 — Whether the Court of Appeal erred by adopting a non-technologically neutral interpretation of the Copyright Act that fails to achieve the correct balance between the rights of copyright holders and users, as well as the public interest in fostering innovation — Whether the Court of Appeal erred by departing from this Court’s jurisprudence on the grounds that they provide insufficient guidance.” (emphasis added)

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Labrecque (O Sauna) c. Trudel (bellaza Centre GP), 2014 QCCQ 2595

¬ Does posting a photo retrieved using Google Image search on the web infringe?

¬ “The fact that the defendants were able to get their hands on that photograph through the Google search engine on the Internet it comes then change the right enjoyed by Ms. Labrecque?

¬ It would probably be at first tempted to think given the democratization of the Internet qu'amène information.

¬ There are indeed a huge amount of data including images, which for the most part, do not indicate be protected by any right of author.

¬ In the Tribunal's view, the effect would have to think so much easier to be able to circumvent legislation on this subject, so that as soon as a work is available on the Internet, it falls outside the legal field of property intellectual.” (Google Translate)

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Labrecque (O Sauna) c. Trudel (bellaza Centre GP), 2014 QCCQ 2595 ¬ “The author Stéphane Gilter then lying on the subject, also came to the same conclusion

that says: ¬ The functioning of the Internet, the constant exchange of digital files, is to facilitate

copying and probably contributes to trivialize it. The fact remains that the rules of copyright apply in the digital environment, the Act even enshrining the principle of technological neutrality. Thus, an author does not lose his rights merely because a work is dematerialized and used or distributed without physical media. As expressed by the Chief Justice McLachlin, on behalf of the Supreme Court:

¬ The subsection 3 (1) of the Copyright Act reflects the principle of media neutrality, recognizing a right to produce or reproduce a work "in any material form." Media neutrality means that the Copyright Act continues to apply despite the use of different media, including those that rely on more advanced technology. However, it does not mean that after his conversion to electronic data, a work can be used anyhow. The final work remains subject to the Copyright Act . The principle of media neutrality does not rule out the rights of authors - it was established to protect the rights of authors and others as technology evolves.

¬ Whether to respect the neutrality of the support, it follows that the rules we have previously described and briefly apply fully to digital environments…” (Google Translate)

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Leuthold v. Canadian Broadcasting Corporation, 2014 FCA 173 ¬ Does par 2.4(1)(c) make a person who transmits programming to BDUs as part of a network

liable for a single network wide communication or for each communication made by each BDU?

¬ “I am of the view that paragraph 2.4(1)(c), properly interpreted, has the effect of making a network transmission of cable programming material to the public via BDUs a single infringement of a copyright holder’s rights if the network has not properly cleared the rights with respect to that transmission.”

¬ “This reading of paragraph 2.4(1)(c) of the Act moves in the direction of technological neutrality in that the number of infringing acts does not vary according to the number of intermediaries in the transmission chain. This is consistent with the goal of technological neutrality which the Supreme Court articulated in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34…

¬ Paragraph 2.4(1)(c) serves to distinguish this case from Bishop v. Stevens where, as noted, each unauthorized reproduction was found to be a violation of the copyright holder’s rights. While that may have been the case for unauthorized communications to the public by telecommunication prior to the passage of paragraph 2.4(1)(c) and its companion disposition subsection 31(2) of the Act, it is no longer the case now.”

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Leuthold v. Canadian Broadcasting Corporation, Supreme Court (leave application) file 36030

Statement of issue: ¬ “Pursuant to Paragraph 2.4(1)(c) of the Act, does a

transmission of an unlicensed work protected by copyright by a production undertaking to more than one distribution undertaking result in more than one transmission for which the production undertaking and each of those distribution undertakings are jointly and severally liable?”

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SOCAN Tariffs 22.D.1 – Audiovisual webcasts and 22.D.2 – Audiovisual user-generated content for the years 2007 to 2013, Copyright Board July 18, 2014

¬ “Netflix argued that royalties on free trials are a violation of the Supreme Court principle of technological neutrality established in ESA. We do not agree.

¬ The principle of technological neutrality is that, since only the reproduction right is triggered when a CD is sold in a store, only the reproduction right should be triggered when a digital album is sold online. The CD is an alternative technology to the digital download. There is no alternative- technology equivalent to a Netflix free trial. Video stores never offered a free month’s membership with the right to rent as many videos as the customer wanted for no additional charge. Thus, there is no issue with technological neutrality.”

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SOCAN Tariffs 22.D.1 – Audiovisual webcasts and 22.D.2 – Audiovisual user-generated content for the years 2007 to 2013, Copyright Board July 18, 2014

¬ “The decision of the Supreme Court of Canada in ESA v. SOCAN meant that SOCAN no longer had the right to collect royalties for permanent downloads and limited downloads. This was reflected in the Board’s recent decision on online music services which had been structured the same way. As a result, neither agreement filed by SOCAN makes reference to downloads.”

¬ See also, Re:Sound No. Tariff 8 – Non-interactive and semi-interactive webcasts, 2009-2012, Copyright Board, May 14, 2014 “since the decision of the Supreme Court of Canada in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, downloads of musical works or other subject-matter do not engage the right of communication to the public by telecommunication but only the reproduction right. Therefore, the distinction between a communication and a transmission, when referring to copyright-protected content, is now very important. A communication is a type of transmission but not all transmissions are communications.”

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John Kaldor Fabricmaker UK Ltd v Lee Ann Fashions Ltd [2014] EWHC 3779 (IPEC) (21 November 2014)

¬ (1) The first stage is to consider whether the claimant has established a prima facie inference of direct or indirect copying by reason of the similarities between the copyright work and the defendant's work.

¬ (2) Similarities which constitute the expression of ideas that have no connection with the literary, dramatic, musical or artistic nature of the work are to be disregarded.

¬ (3) Similarities not thus excluded but which are shown to be commonplace give rise to little or no inference of copying; the nearer a similarity approaches the strikingly original end of the spectrum, the greater weight it carries in supporting an inference of copying.

¬ (4) If the claimant establishes a prima facie case of inferred copying, this may be rebutted by the defendant's evidence of independent design. The stronger the prima facie case, the more cogent the defendant's evidence must be to rebut the inference. the two works.

¬ (5) If there is no finding of copying, there is no infringement. If there is a finding of fact that there has been copying, the next stage is to consider whether copying was done either in relation to the copyright work as a whole or any substantial part of it.

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John Kaldor Fabricmaker UK Ltd v Lee Ann Fashions Ltd [2014] EWHC 3779 (IPEC) (21 November 2014)

¬ (6) Designers Guild sanctions two alternative approaches to the question of substantial part. They are alternatives because neither was expressly endorsed by a majority. The first is to disregard the defendant's work and to assess whether the similarities from which an inference of copying was drawn constitute a substantial part of the copyright work. This is a qualitative, not a quantitative assessment. The second, which applies only in an instance of altered copying, is to determine whether the infringer has incorporated a substantial part of the intellectual creation of the author of the work. In many cases the difference between the two approaches to an allegation of altered copying may be limited.

¬ (7) To the extent that it has not already been excluded under step (3), a commonplace similarity can in any event make no contribution to any substantial part of the copyright work alleged to have been copied since it is not capable of attracting copyright protection.

¬ (8) Assessment of whether there has been copying of a substantial part of the copyright work is a necessary and distinct step in the determination of whether the defendant has infringed. However, where copying has been established, on the facts it may be that this will almost inevitably lead to the conclusion that a substantial part of the copyright work has been copied. This may be influenced by the degree to which the finding of copying depended on the similarities between the two works.

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Geophysical Service Incorporated v Nwest Energy Corp 2014 ABQB 205

¬ Does a person who merely receives a copy of seismic data protected by copyright liable for infringement?

¬ “In regards to copyright, the claim is in essence that if a person obtains a pirated copy of copyright material and performs it, or shows it to others, or plays it on the radio, then the viewer, reader or listener is liable to the owner of the copyright for infringement merely by virtue of having seen or heard it. The Copyright Act (Canada) goes to great lengths to define what constitutes infringement of copyright, but I have been unable to find in any of the definitions and exceptions to definitions that merely receiving, reading, or hearing a copyright work constitutes infringement, even if the recipient knew that the work is a pirated copy.”

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Hayward Industries inc. c. Pool equipment Carvin inc. , 2014 QCCS 2400

¬ Is copying a training manual for use in a chlorinator infringement?

¬ “Hayward argues that this latest version is 70% identical to its manual…

¬ According to Carvin , an instruction manual for the use of a chlorinator is a document that helps a consumer to use the product. In the case of similar products in the same industry, it argues that it is not surprising that textbooks are the same, given the lack of originality and inherent creativity.

¬ In this regard and by analogy, it refers to an Ontario decision [Kilvingston Bros. Ltd . v. Herbert Goldberg et al ., (1957) 16 Fox Pat., p. 164-168] citing Judson J. of the Supreme Court of Ontario:

¬ The similarities are plain to be seen purpose They do not enable me to draw an inference of copying. Tombstone workers were working task of this kind are working with common ideas and with only a limited field for the expression of those ideas. It is not surprising que la results are similar.

¬ In other words, the information contained in textbooks of the two parties of a "common source" or, in this case, the operation of salt chlorinator pool, so that the ideas to be expressed in textbooks are common.” (Google Translate)

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American Broadcasting v. Aereo, Inc., 134 S. Ct. 2498

¬ “We do not see how the fact that Aereo transmits via personal copies of programs could make a difference. The Act applies to transmissions "by means of any device or process." Ibid. And retransmitting a television program using user-specific copies is a "process" of transmitting a performance. A "cop[y]" of a work is simply a "material objec[t] ... in which a work is fixed ... and from which the work can be perceived, reproduced, or otherwise communicated." Ibid. So whether Aereo transmits from the same or separate copies, it performs the same work; it shows the same images and makes audible the same sounds. Therefore, when Aereo streams the same television program to multiple subscribers, it "transmit[s] ... a performance" to all of them.”

¬ “Finally, we note that Aereo's subscribers may receive the same programs at different times and locations. This fact does not help Aereo, however, for the Transmit Clause expressly provides that an entity may perform publicly "whether the members of the public capable of receiving the performance ... receive it in the same place or in separate places and at the same time or at different times." Ibid. In other words, "the public" need not be situated together, spatially or temporally.”

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UPC Telekabel Wien (Judgment of the Court) [2014] EUECJ C-314/12 (27 March 2014)

¬ Does a website that makes streams and downloads of infringing copies movies and TV programming infringe the making available right even without proof of any access?

¬ “… rightholders have the exclusive right to authorise or prohibit any act of making available to the public, it must be stated that an act of making protected subject-matter available to the public on a website without the rightholders’ consent infringes copyright and related rights…

¬ …holders of a copyright or of a related right may act without having to prove that the customers of an internet service provider actually access the protected subject-matter made available to the public without their agreement.

¬ That is all the more so since the existence of an act of making a work available to the public presupposes only that the work was made available to the public; it is not decisive that persons who make up that public have actually had access to that work or not (see, to that effect, Case C-306/05 SGAE [2006] ECR I-11519, paragraph 43).”

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Svensson v Retriever Sverige AB, (13 February 2014) CJEU, Case C-466/12 (13 February 2014)

¬ Does a person infringe the communication right by providing hyperlink to a work?

¬ A work that is posted on a website is communicated to the public by virtue of its being made available to the public.

¬ An ordinary clickable hyperlink to a work can make it available to the public, whether the work is accessed through the link or not.

¬ Whether a link makes a work available to the to the public depends on a number of factors. It must be made available to the same public as the public for the work at the location to which it was made freely available by the rights holder. If the work at the original site is protected by a technical measure, has been taken down, is otherwise inaccessible, or if the link otherwise makes the work available to a public other than the public for whom the work is made available at the original site, the link to the file would make it available to the public and would be an infringing act.

¬ A link that makes available a work in a frame would appear to be assessed using the same principles.

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BestWater International (Order) [2014] EUECJ C-348 / 13_CO (21 October 2014)

¬ Does the act of framing to a non-infringing copy of a work made freely available on the Internet infringe the communication to the public right?

¬ “The mere fact that a protected work, freely available on an internet site, is inserted into another internet site by means of a link using the ‘framing’ technique, such as that used in the case in the main proceedings, cannot classified as ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society since the work at issue is not transmitted to a new public or communicated a specific technical method different from that of the original communication.”

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Paramount Home Entertainment & Anor v British Sky Broadcasting & Ors [2014] EWHC 937 (Ch) (18 February 2014)

¬ Do websites that offer streaming of movies and TV programming using an embedded player to infringing copies make available and communicate the works to the public so as to enable a court to make a blocking order against ISPs?

¬ Svensson ”is…of some interest because it establishes more clearly than previous authority had done that the mere provision of access by means of a hyperlink will normally amount to a communication within the meaning of Article 3(1). Furthermore, it will normally amount to a "communication to the public" within the meaning of that Article.”

¬ For present purposes, I need only refer to paragraph 32 of Paramount v BSB where Arnold J…took the view that the operators were intervening in a highly material way to make the copyright works available to a new audience. I respectfully agree, and I see no reason to come to any different conclusion in the circumstances of the present case.”

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1967 Ltd & Ors v British Sky Broadcasting Ltd & Ors [2014] EWHC 3444 (Ch) (23 October 2014)

¬ Do users of BitTorrent sites communicate musical works to the public? ¬ “In Svensson the CJEU ruled that the provision on a website of clickable links to

works freely available on another website does not constitute an act of communication to the public within Article 3(1) of the Information Society Directive. It held at [17]-[20] that there was an act of communication, but it held at [21]-[31] that the communication was not to the public since it was not to a new public, that is to say, a public which had not been taken into account by the copyright owners when they authorised the initial communication to the public. The reason for this was that all internet users could freely access the works on the other website to which the works had been communicated with the authorisation of the copyright owners…

¬ Accordingly, I remain of the view that, where UK users of a Bittorrent website upload recordings as part of a swarm, all three questions fall to be answered in the affirmative: see EMI v Sky at [39]-[41]. It follows that UK users of the Target Websites infringe in this way as well. It is immaterial that 13 of the Target Websites do not permit uploading of torrent files.”

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¬ Do operators of BitTorrent sites communicate musical works to the public?

¬ “In my judgment, the operators of the Target Websites do communicate Members' recordings to the public for the following reasons.

¬ First, the operators of the Target Websites communicate the recordings by electronic transmission. Their role is by no means passive. On the contrary, they intervene in an active and highly material way so as to enable users to access and to download recordings content in an easy and convenient way. This is true not only of the eight Target Websites which allow their users to upload torrent files, but also of the 13 Target Websites which only aggregate links to torrent files on other websites…

¬ Secondly, the communication is to the public. In at least eight cases, this is because the communication uses a different technical means to that of the previous communication. Even if the communication is not by a different technical means to that of the previous communication in the case of the 13 Target Websites that use crawlers, as to which I shall refrain from expressing a view, it is a communication to a new public, which is to say a public which was not considered by the rightholders concerned when they authorised the original communication or other act of dissemination of the recordings.”

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OSA – Ochranný svaz autorský pro práva k dílům hudebním o.s. v Léčebné lázně Mariánské Lázně a.s., CJEU, Case C-351/12, February 27, 2014

¬ Does the operator of a spa communicate works when it transmits works through TVs and radios to rooms?

¬ “First of all, the concept of ‘communication’ must be construed as referring to any transmission of the protected works, irrespective of the technical means or process used…

¬ Therefore, the operator of a spa establishment carries out a communication when it deliberately transmits protected works, by intentionally distributing a signal through television or radio sets, in the rooms of the patients of that establishment…

¬ As regards that last criterion specifically, the cumulative effect of making the works available to potential recipients should be taken into account. It is in particular relevant in that respect to ascertain the number of persons who have access to the same work at the same time and successively…

¬ As the Advocate General noted in point 28 of her Opinion, a spa establishment is likely to accommodate, both at the same time and successively, an indeterminate but fairly large number of people who can receive broadcasts in their rooms.”

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Jurisdiction

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Davydiuk v. Internet Archive Canada, 2014 FC 944

¬ Does the Federal Court have jurisdiction over the Internet Archive for copyright infringement by archiving materials on a Canadian website on servers in the US?

¬ “Both parties agree that the Prothonotary correctly used SOCAN to establish jurisdiction as the test for “real and substantial” connection…

¬ I find that Internet Archive did reach into Canada to the Intercan website when they requested the web pages. Whether it was automated or not does not affect my finding. The action of “following a link” or “requesting pages” as described by Internet Archive requires Internet Archive to reach out to the Canadian servers that subsequently transmit back to the United States. The request and return transmission is not done with permission or on consent. The Canadian public can access the webpage and have it transmitted back to Canada. This is exactly the evidence Daniel Davydiuk provided the Court…

¬ In reference to a trademark matter, in HomeAway.com, Inc v Hrdlicka, 2012 FC 1467 (CanLII) at para 22, Justice Roger T. Hughes found that a trademark simply appearing on a computer screen in Canada constituted use and advertising in Canada. I would apply the same rationale that two people accessing a website in Canada constitutes access in Canada.”

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Paramount Home Entertainment & Anor v British Sky Broadcasting & Ors [2014] EWHC 937 (Ch) (18 February 2014)

¬ Does the UK copyright statute apply to foreign websites that offer streaming of movies and TV programming to UK users?

¬ “Earlier cases, including in particular EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), list the factors which have in the past led the court to conclude that the acts of communication were targeted at the UK. They include such matters as the number of users of the relevant websites in the UK, the inclusion on the websites of large numbers of recordings by UK artists which were otherwise in demand in the UK, the fact that the default language of the websites was English, and the presence of advertisements with prices in sterling.

¬ In the context of the present case, which of course involves films and TV programmes rather than musical recordings, these and similar factors are clearly established on the evidence. There is evidence, for example, about the degree of popularity of the websites in the UK, about advertisements published on them which are clearly aimed at the UK market, and that English is the default language of each website. In short, I am fully satisfied that this particular requirement is fulfilled.”

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¬ Does the UK copyright statute apply to foreign BitTorrent websites that offer services to UK users?

¬ “…the Target Websites' acts of communication to the public are targeted at the public in the UK: (a) the Target Websites are all in the English language (albeit that three of them offer alternative languages); (b) a large number of visitors to the websites (and a significant proportion of their total number of visitors) are from the UK; (c) a substantial proportion of the albums on the UK Top 40 albums chart were available on the websites on inspection, and (d) the advertising on the Target Websites, and certain additional features of the sites, are targeted in many instances at the UK.”

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Omnibill (Pty) Ltd v Egpsxxx Ltd & Anor [2014] EWHC 3762 (IPEC) (17 November 2014)

¬ Does posting photos on a website hosted in South Africa infringe copyright in the UK where the photos are available from the South African sub-domain and site targets South African, UK and other users?

¬ “Looking at the Escortgps site as a whole and the sub-domains, it is not correct to analyse them as a series of separate national sites. In truth, this is a single global offering with national elements. One can infer from the content of the site that the operators intend that, for example, visitors from the UK will visit the South African sub-domain…

¬ I recognise that there is a significant local element to the content of the South African sub-domain. Mr Heald is right to emphasise that the services offered by the escorts are obviously located in South Africa and the prices are in Rand and so on. However, although part of the way in which this website raises revenue is through selling premium advertising services to the escorts themselves, another important way in which the operators of the Escortgps website earn revenue is by generating traffic to the site and earning money from advertising. That traffic can be from anywhere in the world. It is therefore in the interests of the operators of the website that, for example, visitors from the UK will visit the South African sub-domain albeit that those visitors may only be doing that for the purposes of titillation…”

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Omnibill (Pty) Ltd v Egpsxxx Ltd & Anor [2014] EWHC 3762 (IPEC) (17 November 2014)

¬ “It was common ground that mere accessibility on the internet is not enough to show infringement, otherwise every website would be potentially amenable to the jurisdiction of every country in the world. However, as Mr Ward submitted, a finding that this site is at least in part targeted to the UK is consistent with the purpose of that concept in copyright law. The way the site is constructed with a global front page will clearly attract users from many countries. The operators of the website intend that to be the case. There is nothing surprising about the fact that a substantial proportion of the visitors to the South African sub-domain are from the UK.

¬ I find that the first defendant's Escortgps website and the sub-domain at www.southafrica.escortgps.xxx were communicating reproductions of the claimant's artistic works to the public in the UK.”

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Martin Blomqvist v Rolex SA, [2014] EUECJ C-98/13 (06 February 2014)

¬ Is a pirated good distributed for copyright purposes in a member State when it is purchased online from a non-member State and shipped from another non-member State?

¬ “…goods coming from a non - member State which are...copies of goods protected in the European Union by copyright…can be classified as… ‘pirated goods’ where it is proven that they are intended to be put on sale in the European Union, such proof being provided, in

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