As I’ve just mentioned, Mincov Law Corporation has just celebrated its first birthday.
Not only do I have tons of great friends among founders and co-founders of Vancouver tech startups, I know the challenges surrounding running a startup firsthand.
For many startups the cost of getting a trademark through a trademark agent may be prohibitive, so they end up without a trademark or with a poorly drafted trademark application.
I want to extend a helping hand and announce that throughout September of 2012 Mincov Law Corporation will be offering its most comprehensive trademark registration package valued at $3,500 + HST to any business that has been incorporated for less than 2 years in Canada for only…
Become the next , or for half the price in September!
I have been fighting against unauthorized use of other people’s music, software and movies for more than 18 years.
However, I also am very much aware of the ease with which one may download pretty much anything today – for free and often more useable compared to the legitimate copy (greetings, DVD menus and advertising).
Once you’ve been using a cracked or a ripped file without any issues, it is very difficult to force yourself to shell out hard earned money for something that would not result in any positive change in how we use the software, listen to the music or watch the films.
I also know that most people would prefer to own legitimate copies of the stuff they have on their computers if somehow miraculously they didn’t have to pay for it, at least to the extent that their user experience wouldn’t be worse off compared to what they’ve had with the file they leeched off a torrent.
Financial incentives are often more convincing than words.
This is why it is my pleasure to announce that starting September 1, 2012 every new client of Mincov Law Corporation will be receiving Anti-Piracy Reward Certificates.
The idea is simple:
1. become a client of Mincov Law Corporation;
2. receive valuable legal advice and outstanding customer service;
3. get a reward certificate;
4. buy legitimate software, music or movies;
5. receive a cheque from your lawyer.
The certificates may be regifted.
And think of it, doesn’t it sound great: “I just got my lawyer pay for my music”?
Please comment and share if you like the idea.
Today I’m happy to accept your warm wishes for my firm’s first birthday.
This day is very important for me.
Unlike my personal birthday, the birth of Mincov Law Corporation was something over which I had complete control. This makes it even more special.
Like any one-year-old, I’ve absorbed so much information and I’ve learned so many new skills during this past year, I can hardly contain my excitement going into the second year.
Now that I’ve been running my own business for 366 days, after I made hundreds of connections and helped dozens of clients, I have a much better understanding of the role that legal advice plays in the life of a startup. You allowed me to better see the value that I can provide to my clients at different stages of their businesses.
Stay tuned for two electrifying announcements that I will be making today!
The subsection simply states that, for greater clarity, the provisions of the Copyright Act dealing with secondary infringements do not apply to imported unauthorized copies of works and other subject-matter if such copies would have been excused under limitations or exceptions under the Copyright Act.
It is nothing new, since the existing Section 27(1) only applied to “a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.”
Secondary infringements, of course, include such acts as selling, renting out, distributing, offering for sale or rental, exhibiting in public, possessing for such purposes, and importing into Canada for such purposes.
The problem is that given the uncontrolled expansion of legalized infringements through fair dealing and otherwise, Canada may become a haven for unauthorized works that cannot be used anywhere outside Canada.
For example, many countries rightfully do not have an exception for parodies; most countries do not have broad exceptions with respect to educational use; most countries do not have exceptions with respect to non-commercial user-generated content. The new provision “clarifies” that not only unauthorized use of foreign works by Canadians would be excused if such use falls under one or another exception or limitation: it states that even copies that would be considered to infringe copyright in jurisdictions where such copies were made can still be lawfully used in Canada.
Again, this is nothing new, but the clarification makes it even more disturbing.
BOTTOM LINE: This is one of the few amendments that actually clarifies an existing provision of the Copyright Act. Still, this is very unfortunate that the new Section 27(2.1) makes it clearer that Canada finds it acceptable that it may become a market for laundering copies that are considered infringing in all other countries of the world.
The Copyright Modernization Act introduced some changes to Section 23 of the Copyright Act, the section about the terms of protection of neighbouring rights (the rights in respect of performances, sound recordings and broadcasts) in Canada.
I will compare my interpretations of the old and the new versions side by side. I will then provide some comments about the amendments.
|Protected right||Term of protection before amendments||Term of protection after amendments|
|Performances that have not been fixed in a sound recording||50 years after the end of the year when the performance occurs|
|Performances fixed in a sound recording||50 years after the end of the year when the performance is first fixed in a sound recording||50 years after the end of the year when the performance is first fixed in a sound recording if such fixation occurs before the copyright expires.|
OR, if the sound recording is published before the copyright expires, 50 years after the end of the year when the sound recording is published, but not longer than 99 years after the end of the calendar year in which the performance occurred.
|Sound recordings||50 years after the end of the year when the first fixation of the sound recording occurred||50 years after the end of the year when the first fixation of the sound recording occurred.|
OR, if the sound recording is published, 50 years after the end of the year when the first publication of the sound recording occurred.
|Communication signals||50 years after the end of the year of the broadcasting of the communication signal.|
My first general comment is that one arbitrary term is now replaced by a set of other arbitrary terms. Whether it’s 50, 99 or 500 years is largely immaterial. There really is no reason for it to be one way or the other. Just another compromise not based on any principles.
Secondly, the amended version has several references to a time “before the copyright expires”. Unfortunately, no clarification is given whether the reference is to copyright in the underlying work, the performance or the sound recording. If I were to venture a guess, I would say that the references in the new s. 23(1) are to the copyright in the performance while the reference in the new s. 23(1.1) is to the copyright in the sound recording. I see no other interpretation that would be logically consistent. Clarity, however, is not one of the strong points of these amendments.
The biggest problem that I have with amendments to Section 23 is the wording relating to the term of protection of performances.
Let me take you back to the definition of a performer’s performance:
”performer’s performance” means any of the following when done by a performer:
(a) a performance of an artistic work, dramatic work or musical work, whether or not the work was previously fixed in any material form, and whether or not the work’s term of copyright protection under this Act has expired,
(b) a recitation or reading of a literary work, whether or not the work’s term of copyright protection under this Act has expired, or
(c) an improvisation of a dramatic work, musical work or literary work, whether or not the improvised work is based on a pre-existing work;
Nothing in this definition suggests that a reference is to the first performance by a performer. I see no reason to read this definition as anything other than EACH performance of a performer.
Now, the next great question is – how do you fixate a performance that happened in the past?
Let’s go back to the amendments to Section 23(1). This time, I quote:
Subject to this Act, copyright in a performer’s performance subsists until the end of 50 years after the end of the calendar year in which the performance occurs. However,
(a) if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs; …
If the words “before the copyright expires” refer to the copyright in the performer’s performance, then the only way to read s. 23(1)(a) is as follows: “If the performance is fixed in a sound recording not later than 50 years after the end of the calendar year in which the performance occurs…”
So we have a performer perform an artistic work, a dramatic work, or a musical work, recite or read a literary work, or improvise a dramatic work, a musical work or a literary work, which performance is not fixed at the time when it occurs, but then somehow miraculously it becomes fixed in a sound recording some time in the future.
This makes absolutely no sense if each performance is protected separately from all previous and future performances by the same performer. However, as I mentioned before, nothing seems to suggest that only the first performance receives protection, while all others remain unprotected. Unlike sound recordings that may be reproduced, live performances are never identical.
Section 23(1)(b) makes things even worse by further modifying the term of protection of performances:
“if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the earlier of the end of 50 years after the end of the calendar year in which the first publication of the sound recording occurs and the end of 99 years after the end of the calendar year in which the performance occurs.”
So we have a performer perform a performance, which is fixed at some point, but the sound recording is not published until some time later – so far so good – so the term of protection is then linked to the year of the publication, not the year of the fixation. This is understandable. However, what follows makes no sense. Again, under which scenario would the publication of the sound recording occur before the expiration of the copyright in the performance, but the 50th anniversary of such publication would occur more than 99 years after the performance?
Let’s use an extreme example.
We have a sound recording of a performance that took place in 1963, which recording remained unpublished until 2012. It gets published in 2012 (i.e. within the 50 term of copyright for performances), and according to s. 23(1)(b) would be protected for 50 years following the publication. Thus, the protection would be extended up to the end of 2062, which also happens to be 99 years after the performance. There may be an extra year missing in my calculations because the calculations should actually take into account the remainder of the triggering year, but I cannot imagine that the purpose of the reference to 99 years was to cut off one year from the term of protection. And we just used the most extreme example when the publication happens just before the expiration of the initial term of protection for the performance.
One of the rules of legal interpretation is that our laws do not contain unnecessary language. But here are my two questions to the drafters of this masterpiece:
1. In which circumstances would a performance be fixed in a sound recording after the copyright expires?
2. In which circumstances would the 50th anniversary of the first publication of a sound recording fixating a performance that took place no more than 50 years before such publication occur more than 99 years after the performance took place?
BOTTOM LINE: Yes another piece of incomprehensible language that only muddies the water. If the goal was to extend protection for performances embodied in sound recordings published after the first fixation, that goal could have been accomplished in a much clearer way.
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Tags:CollectivismPhilosophySmall BusinessNew Copyright ActFair Dealing