Canadian Lawyer

June 2020

The most widely read magazine for Canadian lawyers

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Page 39 of 51

38 LEGAL REPORT AS COPYRIGHT LAW evolves into the digital domain, courts and lawmakers are being asked to continue to find an equitable balance between the rights of creators and users. The approaches being used are a mix of readapting tested tools and the introduction of new ones. In several recent decisions, federal and provincial courts have reinforced the themes of proportionality and fairness, along with balancing interests, says Stewart McKelvey's Halifax partner Daniela Bassan, who is chair- woman of the firm's intellectual property practice group. "There is kind of an ethos that Canadians sometimes talk about, whether it's INTELLECTUAL PROPERTY Digital age brings new copyright lens Courts continue to grapple with how to balance the rights of creators and consumers in the digital age part of our culture, whether it's part of our discourse or whether it's part of our jurispru- dence; I think this concept of proportionality, balance, fairness comes through in many different areas of the law. "Even though it may be a private commer- cial interest at its core, there is a public element," such as access to and freedom of information or encouraging people to create work, she says. "I do think it is unique to Canada because it does come up quite a bit, over and over." What she sees emerging in the digital age is a new approach to the old cease and desist order, re-employment of Norwich orders for disclosure of the identities of accused copyright offenders and de-indexing of sites that infringe copyright by preventing them from turning up in search results. In addi- tion, last year's decision in Bell Media Inc. v. GoldTV.Biz introduced the concept of website blocking — a first for Canada, although it's been used previously in British courts. The success of the blocking argument turned on the principle of whether the injunctive remedy of using an "innocent third party," inevitably an internet service provider, to block access to an offending website would be just and convenient. Its significance, says Bassan, is that it goes beyond the disclosure of information about websites to prevent access to content on certain websites. In that decision, the Federal Court established a three-part test to be applied to a blocking order: Show that there's a serious issue; show irreparable harm will occur without the blocking order; and that the balance of convenience lies in the applicant's favour. COPYRIGHT DECISIONS FOCUSING ON INTERNET Blocking out pirates Bell Media Inc. v. GoldTV.Biz Norwich order revisited Voltage Pictures, LLC v. Salna Pirates in the afterlife Thomson v. Afterlife Network Inc.

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