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Conflict of the Canadian legislation and case law on fair dealing for educational purposes with the international norms, in particular with the three-step test
2018-07-17
By Dr. Mihaly J. Ficsor
In 2000, within about four months, two WTO panels interpreted the three-step test – as provided in Article 13 (for copyright) and in Article 30 (for patent rights) of the TRIPs Agreement – in accordance with the provisions of the Vienna Convention on the Law of Treaties (which also binds Canada); the first panel, where the author of this paper was a member, in a patent case between the European Communities and Canada and then a second one in a copyright case between the European Communities and the United States of America. The two panels agreed on the basic aspects of interpretation; inter alia, on that the three conditions apply on a cumulative basis; thus, failure to comply with any of them results in an exception being disallowed. As the copyright panel has confirmed it, “Article 13 cannot have more than a narrow or limited operation. Its tenor… discloses that it was not intended to provide for exceptions or limitations except for those of a limited nature.” In contrast with the WTO panels, the Supreme Court of Canada (SCC) has not analyzed the provisions of the treaties at all; it has only based its „user rights” doctrine (for the application of fair dealing) on certain comments in a book of a Canadian academic quoting two US academics. The Court has interpreted the doctrine – in the CCH case – in a special way combining it with three elements: (i) the understanding that „user rights” does not only mean that the performance of certain acts are permitted, it also means that those “rights” are at least on an equal level but rather even superior to author’s rights; (ii) the principle of „large and liberal” interpretation of fair dealing and other exceptions (although the adjectives „large” and „liberal” are just the antonyms of the criteria of the three-step test according to which exceptions may only be applied in limited, confined, special cases); (iii) six factors to be taken into account to find fair dealing, all suggesting the superiority of „user rights” (among them the impact of fair dealing on the market (normal exploitations) of works, which also is only to be taken into account; a conflict with such exploitations – in contrast with the three-step text – is not supposed to be an obstacle to find fair dealing). The paper discusses in detail why and how the Canadian copyright law has got into conflict with the international treaties due to this pro-user case law – which became particularly conspicuous when applied in the Alberta (Education) case. By the 2012 Copyright Modernization Act, amending the Canadian Copyright Act (CCA), adopted nearly in parallel with Alberta (Education), the allowable fair dealing purposes have been extended to education in general without any specification whatsoever. This differs from the provisions of the international treaties (in particular Article 10(2) of the Berne Convention) and the national laws of Canada’s main trading partners where educational exceptions are limited to special cases, and – combined with the principle of „large and liberal” interpretation of fair dealing – has the potential of getting into even more serious conflict with the three-step test. The York decision of the Federal Court has raised the hope for reestablishing the concordance of the Canadian copyright law with the international treaties. It seems, however, that for this it would also be necessary to amend the CCA by limiting the application of educational fair dealing to special cases in accordance with the three-step test. The copyright laws of Canada’s key trading partners offer appropriate examples how this may be achieved.
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Comments to the Marrakesh Treaty on accesssible format copies for the visually impaired
2018-07-12
By Dr. Mihaly J. Ficsor
The Introduction to the Commentary points out that the limitations and exceptions foreseen in the Treaty – as also proved by the WIPO-Unesco Model Provisions adopted in 1982 (under the chairmanship of the author of the Commentary ) – may also be applied (and, in many countries, are applied) on the basis of the existing copyright treaties in accordance with the three-step test. The Treaty is historical, but not because it would be the first treaty to make the application of such limitations and exceptions possible. It is historical from the viewpoint of persons with visually impairment since it expresses full solidarity of the international community by offering an adequate legal and organizational framework for international cooperation to ensure more efficient availability of accessible format copies. It is also historical in a broader sense since it – together with the Beijing Treaty on Audiovisual Performances (BTAP) adopted a year earlier – seems to have put an end to a quite troubled period (more or less the last decade) in the international copyright relations by contributing to a well-balanced international regulation of copyright and, at the same time, rejecting a badly informed campaign against certain indispensable elements of the existing copyright norms (in particular the three-step test and TPM protection). The Introduction also discusses the reasons for which the Marrakesh Treaty has rightly be characterized as exceptional and unique and for which it cannot be regarded as a model for any treaties on other limitations and exceptions (not needed because those limitations and exceptions may be duly applied on the basis of the existing international norms). Namely, that it is a special-format treaty, a treaty on special-format copies for the visually impaired. The Commentary contains detailed paragraph-by-paragraph comments and an Annex added to it offering a thorough analysis of the key issues of the three-step test (of which a summary is included in the comment to Article 11 of the Treaty on the test).
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The WIPO "Internet Treaties" and copyright in the "Cloud"
2018-07-12
By Dr. Mihaly J. Ficsor
The paper has been presented as a keynote speech at the ALAI Congress organized in Kyoto, Japan, from October 16 to 18. It analyses how the rights provided in the WIPO "Internet Treaties" - in particular, the rights of reproduction, distribution and makig available to the public - are applicable in the "cloud" environement. It also reviews the relevant case law (rulings of both national courts and of the CJEU) concerning both those services which began functioning already before the "conceptualization" of the "Cloud" (such as "virtual video recorders," social networks, UGC platforms, etc.) and the "cloud-native" services (such as "cyberlockers" and cloud-based distribution systems) along with case law concerning hosting services (since cloud services, in general, are qualified as such). The paper also discusses the application of exceptions and limitation and the question of exhaustion of rights in the "Cloud," as well as the role of DRM systems in support of legal cloud-based services.
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The hurried idea of the "European Copyright Code" in the light of the EU's (desirable) cultural and copyright policy
2018-07-12
By Dr. Mihaly J. Ficsor
Certain documents published by the European Commission have referred to the possibility of preparing a "European Copyright Code" and establishing a "unitary copyright title." The paper (a partly modified and updated version of the paper presented at the 2012 Forham IP Conference) discusses the reasons for which the idea of such a "Code" does not seem to be timely (in particular, not in the form presented by the Wittem Group) and for which the creation of a separate "European title" is both unncessary and unjustified. The paper contains detailed comments on the so-called "European Copyright Code" published by the Wittem Group pointing out that (i) it would result in a decrease of the level of copyright protection which would not be the interest of the EU and its Member States; (ii) some of the draft provisions suggested in it are not in accordance the existing acquis and certain international norms; and (iii) some of them would not necessarily lead to harmonization but rather to disharmonization.
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Comments on the UGC provisions in the Canadian Bill C-32
2018-07-12
By Dr. Mihaly J. Ficsor
The paper was prepared in October 2010 in the middle of the debates on Bill C-32 to amend the Canadian Copyright Act. At that time, it was not published. The reason for its present publication is that recently certain documents of the European Commission have raised the idea of a possible amendment to the acquis with the purpose of facilitating the creation and use of adaptations of works protected by copyright in the form of "user generated content" (UGC), and the new Canadian legislation (the amendments have been adopted in the meantime) has been referred to as a possible model. The paper may be useful to point out to what kinds of unintended negative consequences - and potential problems with certain international norms - the Canadian model might lead. It reflects the position that it is only in respect of the freedom of creating and using parodies where there may be truly a need for legislative clarification but that the new provision of the Bill on parody would have been sufficient to address and settle the issue. It goes without saying that the author's position is the same in respect of the acquis; in view of Article 5(3)(k) of the Information Society (Copyright) Directive on an exception for the purpose of charicature, parody or pastiche it is quite doubtful that a specific "UGC exception" might be necessary and justified.
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