In fax transmissions were not held to be a communication the CCH, “to public” (although court left open possibility that a series of repeated transmissions might be) Held Streams constitute communications of the works The on communications model is still broadcasting to the public demand “pull” because the works are available in a catalogue to everyone it is available to an – aggregate of members of the public Any member of public can purchase Business model depends on large number of sales WIPO Art 8 of authorizing any communication to the “right public…including (now included in our act) making available Distinguish from CCH: library has ability to accept or refuse any copy Right to Reproduce or Substantially Reproduce Ladbroke Test for infringe repro1) origin work in whole qualify CR? 2) substant repro in quality? Holistic consideration of the full work, considering: Whether it is an original work: does it qualify for copyright? as a whole wrong to ask whether the part taken by itself is protected i.e. cannot dissect the work Whether it was substantially reproduced and quantity in quality Takes into account the A-C-F type of factors at this stage of the test (the of what was taken) (Delrina v Triolet) “quality” involves quality as well as quantity “substantial” This is often the most difficult determination Make sure to do a holistic examination of the substantiality of the reproduction Can look to whether what was taken is novel or striking, or merely commonplace Do not dissect the work As a short cut, can ask if the part taken would itself be the subject of copyright, but this is only a shortcut Cinar Corp 2013 holistic substantial reproduction analysis quality and quantity – – Cinar Corp v Robinson (2013 SCC) Holistic analysis “substantial reproduction” Facts Copying of TV show idea with similar characters, environment, protagonist, and clear influence on side-kicks; not a direct copy but clear resemblance Protagonist wears a straw hat and similar glasses Substantial Reproduction Analysis Act does not protect every of a ‘particle work’ substantiality determined by quality, not quantity; flexible standard Ladbroke: A part that represents a substantial portion of the skill and author’s expressed therein judgment A substantial part in relation to the originality of the work
In CCH, fax transmissions were not held to be a communication “to the public” (although court left open possibility that a series of repeated transmissions might be) Held Streams constitute communications of the works The on demand “pull” communications model is still broadcasting to the public because the works are available in a catalogue to everyone – it is available to an aggregate of members of the public Any member of public can purchase Business model depends on large number of sales WIPO Art 8 “right of authorizing any communication to the public…including making available (now included in our act) Distinguish from CCH: library has ability to accept or refuse any copy Right to Reproduce or Substantially Reproduce Ladbroke Test for infringe repro1) origin work in whole qualify CR? 2) substant repro in quality? Holistic consideration of the full work, considering: Whether it is an original work: does it as a whole qualify for copyright? wrong to ask whether the part taken by itself is protected i.e. cannot dissect the work Whether it was substantially reproduced in quality and quantity Takes into account the A-C-F type of factors at this stage of the test (the “quality” of what was taken) (Delrina v Triolet) “substantial” involves quality as well as quantity This is often the most difficult determination Make sure to do a holistic examination of the substantiality of the reproduction Can look to whether what was taken is novel or striking, or merely commonplace Do not dissect the work As a short cut, can ask if the part taken would itself be the subject of copyright, but this is only a shortcut Cinar Corp 2013 – holistic substantial reproduction analysis – quality and quantity Cinar Corp v Robinson (2013 SCC) Holistic “substantial reproduction” analysis Facts Copying of TV show idea with similar characters, environment, protagonist, and clear influence on side-kicks; not a direct copy but clear resemblance Protagonist wears a straw hat and similar glasses Substantial Reproduction Analysis Act does not protect every ‘particle of a work’ Ladbroke: substantiality determined by quality, not quantity; flexible standard A part that represents a substantial portion of the author’s skill and judgment expressed therein A substantial part in relation to the originality of the work