Canadian Lawyer

June 2020

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40 www.canadianlawyermag.com LEGAL REPORT INTELLECTUAL PROPERTY the boundaries of copyright, partly because the copyright system was developed out of the relationship between creators of copyright work, intermediaries whose function was to disseminate them," she says, adding that those intermediators were quite powerful and had the most influence over legislative changes. Now, the creator can engage directly with the end user to bypass the intermedi- aries. "This led to a different kind of inter- mediary, the internet service provider. So, the law has had to adapt to kind of manage the relationship and include the internet service provider." Another aspect Tawfik considers important is the ability of creators or copyright holders to use technology to limit access to their work through approaches such as paywalls and digital management software. Embedding copy control into the access mechanisms of digitized material to prevent copyright infringement also makes an important excep- tion to copyright almost impossible, she explains, because it stops fair users, such as learners, from having access. The purpose of the fair dealing excep- tion to copyright law is to allow access for learning and to accommodate people with difficulties to allow them access to knowl- edge. That could include reformatting a text for the visually impaired without requiring permission or payment. "The first modern copyright act was passed in 1710 in England and it's adapted and met the challenges and new technologies. . . . It was an Old World body of law that came to the New World and it adapted to New World conditions in Canada and the United States," says Tawfik. There is another challenge in this flatter, wired world, observes intellectual prop- erty lawyer Athar Malik, a partner at Clark Wilson LLP in Vancouver, and that is the blurring of geographic boundaries. Enforcing and protecting the work of the constant producer or copyright owner might require a wide lens, he says. So, instead of going to every country to enforce copyright, the creator may just pick the larger market areas for a co-ordinated action. The website blocking remedy that came out of the Bell Media Inc. v. GoldTV.Biz deci- sion will help in keeping some abuse in check, no matter where the offender is located. But, he adds, "It's not a perfect solution because, at the end of the day, the Canadian content companies can't get damages from the actual pirate. But it's at least a way of mitigating the impact of the piracy occurring." More similarities in the laws of different jurisdictions will help, he adds, pointing to the recent U.S./Canada trade agreement, which includes that both countries will have copyright extended to the life of the producer plus 70 years, instead of the current 50. Lovrics says copyright concerns may well come to the fore following social isolation and distancing during the COVID-19 crisis, which prompted an increased consumption of entertainment streaming. "These pirate services might get a bit of a boon as a result of people having time and being at home. So, I think copyright owners will find a need in the next little while to very closely monitor what's happening online and taking action to prevent content from being illegally distributed." "I do think that the digital age has actually been really transformative and really it tested the boundaries of copyright . . . " Myra Tawfik, University of Windsor EARLY HISTORY OF COPYRIGHT LAW 1832 The first Canadian copyright statute, An Act for the protection of Copy Rights/Acte pour protéger la proprieté litteraire was passed in Lower Canada (Quebec) 1841 The Copyright Act of the Province of Canada was replicated from the first Lower Canadian Act 1868 That was adopted by the Dominion of Canada Courtesy of Myra Tawfik

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