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After filing their June applications to appeal the April 2020 FCA decision to the Supreme Court of Canada, both York University and Access Copyright responded to each other's applications and replied to those responses in September. We now await the Supreme Court's decision on whether or not it will grant leave to one or both parties to appeal.

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Federal Court rules on whether use of a lawfully acquired password circumvents the Copyright Act's technological protection measures

On May 31, 2024, the Federal Court of Canada delivered its decision in 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General). Blacklock's, a subscription-based news service, alleged Parks Canada infringed its copyright by purchasing a subscription to particular Blacklock's news articles and sharing the password to those articles with several Parks Canada employees. Representing Parks Canada, the Attorney General counterclaimed that use of the articles constituted fair dealing, and did not breach the Copyright Act's prohibition against circumvention of technological protection measures (TPMs). After noting that a TPM "must be a technology, device or component that must be effective in controlling access to the work or restricting the doing of some act," the Court said it was " satisfied that the use made of the articles accessed through the validly obtained password constituted, on the facts in this record, fair dealing according to section 29 of the Act." The Court further observed that "fair dealing has been found by authorities binding on this Court to be an integral part of a scheme, not a mere exception to the scheme or a defence to an infringement. It must be accounted for in considering the TPM provisions." On the issue of whether use of a password can constitute circumvention of a TPM, the Court said, "The ability of copyright owners to protect against the distribution of their works, which is made so much more broad scale in the digital world, is now a reality. But that cannot be if the cost is to negative fair dealing." The Court thus ruled that, in order to maintain the Act's careful balance between the private and public interests in the scheme of copyright, "the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act." ...

Federal Court decision in Alberta v. Canadian Copyright Licensing Agency (Access Copyright)

On February 22, 2024 the Federal Court of Canada delivered its decision in a 2018 suit launched by 10 provincial and territorial K-12 education ministries and all Ontario school boards (the Consortium), who sought a refund from Access Copyright (AC) for royalty over-payments. The Consortium's over-payments, totalling more than $25 million, were made in the period 2010 to 2012 during which Consortium members were licensees under a continuation of the terms of the 2005-2009 tariff while the Copyright Board reviewed AC's tariff proposals for the 2010 to 2015 period. AC did not dispute the over-payment amount. However, AC counterclaimed that a refund was not required because, among other things, it claimed the Consortium continued to be licensees from 2013 to 2015 but paid no licensing fees. The central questions before the Court included whether the Consortium members were licensees after 2012, and if not, whether AC is entitled to keep the Consortium's over-payment of licensing fees. On both of these issues the Court ruled in favour of the Consortium: that its members were not licensees during the disputed time frame and AC may not retain the over-payment amount. ...

Government of Canada consultation on copyright and generative AI

On October 12, 2023, the Government of Canada launched at consultation period in which it invites public comment on whether copyright law amendments are needed to facilitate the development of generative AI. Other recent governmental consultations on aspects of copyright law accepted written briefs from interested parties (e.g., the 2021 Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things). This time, however, participation in the Consultation on Copyright in the Age of Generative Artificial Intelligence is only available by filling out an online form. The deadline for submitting input is December 4, 2023. *Update: On December 1, 2023, the consultation period was extended to January 15, 2024. ...

On November 17, 2022 an Order in Council was signed that sets December 30, 2022 as the date on which Division 16 of the Budget Implementation Act, 2022, No. 1 comes into force. Division 16 comprises amendments to the Copyright Act, including extension of the general term of copyright from 50 to 70 years after the life of an author. All original works by authors and creators who died in 1971 or earlier are in the public domain in Canada. Due to the December 30, 2022 amendment to the general term of copyright, however, no additional works will enter the public domain in Canada until January 1, 2043. ...

York and Access Copyright file responses and replies to Supreme Court leave to appeal applications

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York and Access Copyright file responses and replies to Supreme Court leave to appeal applications

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