 Hello, this is Waylon Chao and this is Intellectual Property Part C. In this part, we will look at copyright infringement, the creative commons, and the fair-dealing exemption to copyright. A copyright infringement occurs when all or a substantial part of a copyright work is used without authorization or without a license. If you remember a number of modules ago when we were recovering contract law, in one of those modules, the lecture videos included a little snippet of your favorite song, Justin Bieber's Baby. So that little snippet was only for about 10 or so seconds, so that was not all or substantial part of that song. Because it was only a small snippet, it was not considered copyright infringement. Now if you do commit copyright infringement, let's say you illegally download a thousand songs, then the amount of damages that you could be made liable for are specifically set by the Copyright Act. And it depends on whether or not the infringement was done for a commercial purpose or a non-commercial purpose. So if it's just you downloading songs for your own personal enjoyment, that's non-commercial use. The statutory damages that you could be made liable for would be a minimum of $100 and a maximum of $5,000. So that's for all the infringements in a single proceeding. So that means that if you're sued for copyright infringement for those thousand illegally downloaded songs, so that's in one single proceeding. So even though it's 1,000 different downloads or in other words 1,000 different copyright infringements, the most that you can be made liable for is the $5,000. It's not $5,000 per song, it's $5,000 per legal proceeding. Now if you illegally downloaded those songs for commercial purposes, in other words you were reselling copies to other people. Or if you're a DJ you're using that music in doing your work as a DJ, that's commercial use. And the maximum penalty then would be $20,000 per work infringed. So that could be $20,000 per illegally downloaded song. There are other ways of infringing copyright that are in the Copyright Act. If you break a digital lock or the technical acronym is TPM, technological protection measure, if you break a digital lock then that is considered copyright infringement. So I think it used to be that when you downloaded songs off of iTunes you could not convert it into some other format like MP3 that you could play on a different non-Apple device. Now if you were able to hack it and break that digital lock to put it into a different format that would be considered copyright infringement. In terms of file sharing sites and your ISPs, they could also be made liable for copyright infringement. But only if they intentionally or knowingly allowed users to illegally access copyright material. So there has to be some intention or knowledge of the illegal copying of material before there's liability on these sites or your ISP. Let's say you like to legally download movies using BitTorrent. Under the Canadian Copyright Act, what may happen is that the copyright owners, so in this case it would be the movie company that owns the copyright for the movies that you illegally downloaded, they have technological ways of finding out the IP addresses of the people who are illegally downloading their movies. With those IP addresses, they can figure out who your internet service provider is, who your ISP is. Under Canadian Copyright Law, that copyright owner can send a notice to your ISP advising them of the copyright infringement. And then the ISP has an obligation to forward that notice to you, the customer. Now the ISP has no obligation to disclose your name to the copyright owner. So all the copyright owner really knows is your IP address. So the ISP forwards that copyright notice to you and that notice often includes a demand for some kind of settlement payment and all bunch of threats to sue you for copyright infringement. So here's a sample letter that a copyright owner would send and then your ISP would forward to you. So in this letter it explains that the ISP is forwarding to you this notice and then that your ISP account has been used to download copyright content which infringes the rights of the copyright owner. And in this particular letter it says that you could be liable for up to $150,000 per infringement in civil penalties which is blatantly untrue under Canadian Copyright Law. We just mentioned earlier that for non-commercial copyright infringement the most that you can be liable for is a maximum of $5,000. So in this letter they also kindly offer to settle it with you and they give you a link that you can click on and make an online payment and they promise not to sue you by giving you a legal release if you pay $20 per infringement. So if you legally downloaded 100 files you would be paying $2,000. And after that offer to settle they're very clear or they make a very clear threat that they will sue you or literally they say they will pursue every available remedy against you including claiming recovery of attorneys fees and costs if you don't agree to make that settlement payment. Now if you receive a notice like that or if you know a friend who might receive a notice like that what should you do is the big question. I'm not going to provide you with any legal advice on what you should do but what you can do is read this blog post by Michael Geist who's one of the leading legal experts on technology law and you can find his article at that link. An alternative to the restrictions on use placed by copyright is the creative commons. What the creative commons is is an alternative way of allowing creators to share their works without charging fees or royalties. So there are a number of different creative commons licenses that can be used. These are just six of them. These are not all of the available creative commons licenses. On the one extreme is the CC0 license which is a public domain. That means anyone can use it without paying royalty. They can do whatever they want with it. They can use it for a commercial purpose or non-commercial purpose. There are many different combinations or permutations that you can have with a creative commons license. You can restrict the use to only let's say non-commercial use and you can also require that the author of the work be attributed. Whenever the work is used by someone else, you can also have the license allow someone else to modify the work as well. So there are many different ways of designing a creative commons license as a way of sharing something that you've created without charging any royalties. The concept of fair dealing is used to help strike that important balance in intellectual property law between individual benefits and societal benefits. Fair dealing is an exemption to copyright which allows people to use copyrighted materials without having to pay any royalties. Now that use has to be for some specific purposes that are beneficial to society. There is a two-step test that is applied to qualify for fair dealing. This two-step test comes from the Supreme Court of Canada decision in CCH Canadian and the Law Society of Upper Canada which we'll look at in more detail on the next slide. This two-step test, the first step is we look at the purpose of the use of the copyrighted material. There are some specific purposes that are set out in the Copyright Act which qualify for fair dealing. Those purposes are private study, research, criticism, review, news reporting, education, parody or satire. What the Copyright Act is essentially saying is that if copyrighted material is used for any of those purposes, those purposes are viewed as being generally beneficial for our society and therefore should not be constrained by copyright. That's only the first step. It has to be one of those purposes. The second step is even if it qualifies for one of those purposes, the use or the dealing has to be considered fair. So to determine fairness we look at a number of different factors that the Supreme Court has set out. The purpose of the dealing, the character, the amount of the dealing, how much of the material are you copying. And so we look at usually a percentage of what the whole amount of the work is. The availability of alternatives to copying, the nature of the work and the effect of the dealing on the work. Let's now look in detail at the CCH and Law Society case. So this is the case in which the Supreme Court sets out the legal test for fair dealing. This case involves the Law Society of Canada, which is the body which governs the legal profession in Ontario. The Law Society maintains and operates a reference and research library called the Great Library at Osgoode Hall in downtown Toronto. One of the services that the Great Library provides is called a Custom Photocopy Service. So what that service does is that if you're a Law Society member, let's say you're a lawyer, no matter where you're located in Ontario, you can contact one of the librarians at the Great Library and they can look up something for you. Let's say it's a case or a specific article and they can photocopy that case or article and send it to you. And they can either deliver it in person, presumably if you're in the Toronto area or downtown area, or they can send it by mail or send it by fax. The various publishers that the library has materials from, including CCH Canadian, had some serious objections to the service. They took the position that the service constituted copyright infringement. So they sued the Law Society for copyright infringement. One of the legal issues that the Supreme Court considered in this case was whether the Law Society's dealings with the publishers' works were considered to be fair dealing under the Copyright Act. In setting out the applicable law here, the Supreme Court first stated that the fair dealing exception is a user's right and that in order to maintain the proper balance between the rights of a copyright owner and user's interests, that fair dealing exception should not be interpreted restrictively. Then the court more specifically set out the test that we've already explained in the previous slide where to have fair dealing. The first step is to look at the purpose of the dealing. Does it qualify for one of the purposes of research, private study, criticism, review, news reporting, education, parity or satire? And then the second step is to determine whether or not that dealing is fair. And then the court set out the six different factors in assessing whether a dealing is fair. The court then explained how these different factors are applied or what they mean. The first factor in determining fairness is the purpose of the dealing. So the purpose goes back to the purposes that are set out for fair dealing under the Copyright Act, which are namely research, private study, criticism, review or news reporting. So those were the purposes that were set out in the Copyright Act at the time of this case. Subsequently and more recently there have been a few additional fair dealing purposes added to the Copyright Act, which are education, parity or satire. But the court also provides a bit more color in terms of applying this factor of purpose of the dealing. So they made other comments such as if research is done for commercial purposes it may not be as fair as research done for charitable purposes. The second factor in determining fairness of the dealing is the character of the dealing. So the court pointed out here that if let's say multiple copies of works are made and they are widely distributed, that would likely be unfair. So in contrast, if a single copy of work is used for a specific legitimate purpose, then that's likely to be fair to be fair dealing. And if the copy of the work is destroyed after it's used for its intended purpose, that also may help lead to a finding of fairness. And in some instances looking at the custom or practice in a particular trade and industry may help to determine whether or not the dealing is fair. The third factor looks at the amount of the dealing. So usually one rule of thumb that people apply is the 10% rule is that if you are copying less than 10% of a book, let's say, that usually would qualify for a fair dealing. So the Supreme Court here says that if the amount taken from a work is trivial, then it's likely to be fair dealing. But the court also says that in some situations it may be fair to copy 100% of a work. One example is if you are writing an article to criticize or review a photograph, you would be able to fairly reproduce 100% of the photograph in your review and that would likely be considered fair. Alternatives to the dealing looks at whether or not there is a non-copyright equivalent of the work that could have been used instead of the copyrighted work. The fifth factor looks at the nature of the work. So that can be a number of different things. Some of the possibilities that the court commented on were if a work has not been published, the dealing may be considered fair in that the reproduction could lead to a wider public dissemination of the work. So in contrast, if the work is considered to be confidential, then copying the work in terms of the dealing could be considered to be unfair. The sixth and last factor is the effect of the dealing on the work. What specifically this looks at is the effect of the dealing on the market for the copyrighted work. In other words, will that copying take away sales of the legitimate sales of the copyrighted work? So when the court applied that law to the facts, they applied all five factors to determine fairness. But they first dealt with the first step of determining whether or not the purpose of the dealing fell within one of the purposes that are set out in the Copyright Act. And they concluded that the purpose here was for research and that research should be interpreted in a liberal and broad fashion so as not to unduly constrain users' rights. So specifically they said that research for the purpose of advising clients, giving opinions, arguing cases, preparing briefs, factims is nonetheless research. And it doesn't matter that lawyers are carrying on the business of law for profit in the conduct of that research. So then the court moved on to the second step of the analysis in determining whether or not the dealing was fair by applying the six different factors. In finding that the law society's dealing was fair, the court focused on the facts that the access policy that the law society operated under in providing this service states that not all requests for copying or for access to materials will be honored. And that request request does not appear to be for the purpose of research criticism review or private study copy will not be made. And that also that this access policy limits the amount of the work that will be copied. And that if the request exceeds what might typically be considered reasonable, then the librarian has the right to refuse to fulfill a request made by a law society member. The Supreme Court decision in CCH was in 2002. Since then the Supreme Court of Canada has reaffirmed its broad interpretation of fair dealing as set out in that CCH case. In July 2012, the court released five decisions, which set out again a broad interpretation of fair dealing. That series of five decisions is called the copyright pentology. In one of those decisions called So Can and Bill Canada, the court said that the purpose of research, which is one of the purposes that are allowed for fair dealing, should be interpreted broadly from the perspective of the user, not the service provider. So this case involved an online music provider providing subscribers with 30 to 90 second previews of copyright songs on its website. And the court held that those previews are not copyright infringement since they are protected by fair dealing. In another one of those cases in the copyright pentology, this one called Alberta Education and Access Copyright. The court indicated that the purpose of research, which is another fair dealing purpose, is not limited to a scholarly inquiry, but can include lifelong learning and daily information seeking. So you don't have to be a student or a scholar to engage in research. It can be a part of anyone's everyday life. And also private study does not require isolation or solitude but can occur in a classroom or as a group activity. This case involved teachers reproducing excerpts from textbooks and giving those excerpts to their students for classroom studies. And the court held that that reproduction of copyright material was protected by fair dealing. The recent advent of widely available generative artificial intelligence tools such as ChatGPT and Google Bard raises some important and serious copyright issues. One big question is, is AI generated work protected by copyright? And a related question would be, who is considered to be the author of an AI generated work? Would it be the AI itself or would it be the company or the people who developed the AI? Or would it be the human user who asked the AI a question or asked it to do something? So those are open questions, but what we do know is that under the current Copyright Act copyright owners can only be human beings. So that precludes an AI from owning a copyright. So if the author of a work is an AI, that work cannot be subject to copyright and therefore is in the public domain. As I mentioned earlier, the questions that are raised here are open questions that we don't have any definitive answers to, at least not yet. But I think we'll need to distinguish between works that are primarily created by an AI versus works created primarily by humans with the help of AI.