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Author Topic: Canada and Copyright Trolls  (Read 6306 times)

lucia

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Canada and Copyright Trolls
« on: July 08, 2014, 02:52:10 PM »
From time to time, Canadians stop by asking information on copyright in Canada. We have no one here with particular expertise on Canada. However, I dredged up a site from the University of Ottawa Canadian Internet Policy and Public Interest Clinic.  This is their page discussing Trolls: 

https://cippic.ca/en/FAQ/Copyright_Trolls

Interstingly, that site mentions the same actors we discuss at ELI
Quote
So far, trolls have mostly targeted works that can be easily identified in online searches, such as stock images and news articles. In Canada, Getty Images and Masterfile are the most active companies engaged in this scheme. Increasingly, film production companies, especially in the adult entertainment industry, target movies downloaded using peer-to-peer software such as BitTorrent clients. While trolls in this area are most active in the United States, one company issued demand letters in Canada before dismissing its claim.

It's interesting to note that sites advice to Canadians includes  list of options when negotiating with Trolls.
 
Quote
    Accept & pay the fee demanded.
    Negotiate for a lower fee.
    Offer a fee in line with what the company could expect for statutory damages (in Canada, $500 per work).
    If you qualify as an innocent infringer, offer the company $200 per work as an equitable settlement offer.
    Tell the company that the work has been removed and say that ends the matter (and risk being sued).
    Ignore the company (and risk being sued).



There are lots of other interesting tid bits. But as I don't know enough to put then in context of any Canadian rulings, I'll just let people read the site themselves.   For what it's worth, I found this site through a Canadian BLAWG. That site indicated one of the attorney's associated with the clinic was interested in collecting together information on demands from Getty; that was written in 2008. I've emailed the attorney to learn whether he remains interested. If he is, I will post his email so Canadians who come here can learn of the resource.


stinger

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Re: Canada and Copyright Trolls
« Reply #1 on: July 08, 2014, 03:36:07 PM »
Excellent find, Lucia!

Greg Troy (KeepFighting)

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Re: Canada and Copyright Trolls
« Reply #2 on: July 09, 2014, 12:26:36 AM »
Great job Lucia!
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

Robert Krausankas (BuddhaPi)

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Re: Canada and Copyright Trolls
« Reply #3 on: July 09, 2014, 07:55:26 AM »
CIPPIC and David Fewer have been previously mentioned back in 2012, it went nowhere, and If I remember correctly, there were some wonky statements made by him somewhere.. search for cippic in the search bar at the top of the page, there is a bunch of results.
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

lucia

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Re: Canada and Copyright Trolls
« Reply #4 on: July 09, 2014, 10:46:04 AM »
David Fewer responded to my email.  Most importantly to ELI, he is interested in hearing about any Getty Letters sent to Canadians. His interest is to work at the  legislative level not to negotiate settlements. That means those sending him details can't hope for specific help on their cases. However: I think it is useful for those who get letter to send them to David Fewer as changes at the legislative level will help future Canadian recipients.  That is all to the good and we need to all recognize that individuals need to budget their time. My guess is that either Mr. Fewer can spend time working to change law over all or he could spend time working on settlements but he cannot do both without collapsing from exhaustion.   

In that vein: I think Canadian letter recipients should be encouraged to assist Mr. Fewer where they can.  My current advise is that in addition to other things a Canadian might do, those receiving demand letters should send copies to
David Fewer <dfewer@uottawa.ca>


I'm going to hashtag this hoping that helps canadians find this.
#Canada #copyright

testycal

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Re: Canada and Copyright Trolls
« Reply #5 on: September 16, 2014, 02:49:06 PM »
I am a Canadian lawyer who posts on this site from time to time.  I have  passing interest in intellectual property and trademark infringement. I was approached by an  acquaintance who received a demand letter from one of the Canadian photo repositories.  I have used this blog extensively to educate myself along with traditional legal sources to respond to the demands.  The matter is  ongoing.  However, generally speaking I have focused on the following issues which I have found interesting in challenging the demands made

license agreement itself and language used - consider whether agreement uses proper language that allows rights to be asserted - some of the older agreements do not and there is case law in Canada that  requires the agreement  to be clear in its language especially where the agreement purportedly relied upon is drafted by the party asserting the right

whether dual copyright exists - interesting issue of whether two legal entities can claim the same copyright - this site references situations where the lead repository sub licenses to a third party and both claim copyright of the same image with actual copyright claims on the image

quantum of damages - note that the repository often provides discounts that call into question what the value of  the alleged loss actually is - an arguable point
limitation period - I find it odd that the repository has access to webcrawler software that identifies alleged infringers and the demand is often made into alleged infringement  year 3 - is the repository sitting on the claim for 3 years to  maximize the demand? there may be an argument  made that the repository must act upon knowledge and not allow time to run before claiming

check the federal court dockets in Canada and determine infringement suits that are being filed - there are not many

it is possible to file suit in provincial and supreme courts in each province but again there are not many

copyright law recently changed in the last year that softened the blow of an infringement where done without intention vis a vis available damages such that a repository may not be inclined to pursue minor infringements

more interesting is how to deal with court costs issues even where an unintentional infringement is made out - there are few reported decisions that  I have been able to find - if the repository bullies an alleged infringer into court who makes a reasonable offer on an unintentional infringement but which offer is refused, how would a court view the matter?  costs are always discretionary and my gut feeling is that the repository is  not going to receive much sympathy in pursuing minor infringements in court

Mulligan

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Re: Canada and Copyright Trolls
« Reply #6 on: September 17, 2014, 10:12:06 AM »
These are very interesting points, and I'm sure folks in Canada who get hit with a Getty letter will find them quite useful. Thanks for sharing them.

 

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