On November 7, 2012, the Governor General in Council proclaimed many of the provisions of the Copyright Modernization Act into force, triggering substantial changes to the Canadian copyright regime.
Provisions Now In Force
The following is a brief overview of the significant provisions that have been proclaimed into force.
Photographs Commissioned by Others:
Photographers are now the first owner of copyright, like all other authors, unless the author is an employee.
Prior to TELUS Corporation’s (TELUS) October 17, 2012 meeting of the shareholders (the TELUS Meeting), Mason Capital Management LLC (Mason), a New York investment fund manager and TELUS’ largest shareholder, appeared to be gaining momentum in the ongoing proxy battle between the parties. At the TELUS Meeting, however, shareholders of TELUS voted overwhelmingly in favour of TELUS’ share consolidation plan; a plan Mason has been diligently trying to thwart. TELUS will ask the court to sanction its shareholder approved plan in early November.
Leading up to the TELUS Meeting the parties had been engaged in a highly publicized court battle which has brought to the forefront a troubling governance issue; the practice of “empty voting.” Empty voting is a phenomenon whereby a party with very little financial stake in a company is able to accumulate a large number of votes. Although the British Columbia Supreme Court (the BCSC) in Telus Corporation c. Mason Capital Management LLC provided compelling policy arguments against empty voting, the British Columbia Court of Appeal (BCCA) chose not to intervene in this regard, and, in doing so, affirmed that under British Columbia law, the court has no power to disenfranchise a shareholder by reason that the interest of such shareholder may not be aligned with other shareholders or the well-being of the corporation.
The decision of the Supreme Court of Canada in GlaxoSmithKline was released on October 18, 2012, upholding the decision of the Federal Court of Appeal and referring the matter back to the Tax Court of Canada for redetermination. The issue in the case was the transfer price for ranitidine, the active ingredient in Zantac, an ulcer drug produced by GlaxoSmithKline. The issue in the appeal was what circumstances are to be taken into account in determining the reasonable arm’s length price against which to compare the non-arm’s length transfer price.
The Canada Revenue Agency (“CRA”) took the position that the purchases made by generic drug companies for ranitidine were the comparable transactions that should be used to determine the amount that was reasonable in the circumstances. Thus, according to the CRA, the arm’s length price which the taxpayer ought to have paid to Adechsa was that paid by the generic companies for their ranitidine.
On June 29, 2012, Bill C-11, the Copyright Modernization Act, passed third reading in the Senate and received Royal Assent. Although not yet proclaimed into force, this Bill amends the Copyright Act, which had remained largely unchanged since 1997.
The enactment of this bill comes in the wake of several failed attempts to revise the Copyright Act, namely Bills C-60, C-61 and C-32, each of which died on the Order Paper due to the dissolution of Parliament in December 2005, September 2008, and March 2011, respectively.
Bill C-11, which was introduced in the House of Commons on September 29, 2011, adds new provisions to the Copyright Act, in part to align the Copyright Act with a number of international copyright treaties that have been signed by Canada.
On June 20, 2011, ICANN approved a plan to increase the number of Internet domain suffixes (“gTLDs”, e.g. .com) from the current number of 22 to an unlimited number. This expansion of the number of possible domain names is significant and opened up the possibility of registering almost any word in any language (and alphabet) as a gTLD.
ICANN announced on June 13, 2012 that it had received a total of 1,930 new gTLD applications (at a fee of $175,000 per application). Of these applications, 66 are geographic name applications and 116 are applications for Internationalized Domain Names (IDNs) for strings in scripts such as Arabic, Chinese and Cyrillic. Applications were received from 60 countries and territories. Many proposed gTLDs corresponded with brand names (e.g. .google, .yahoo, .bloomingdales), while others were more generic (e.g. .website, .toys, .sport). The list of new gTLDs and their respective applicants may be viewed here. Some of the interesting domains applied for include “adult”, “apple”, “attorney”, “cancerresearch”, “church”, “democrat” & “republican”, “hgtv”, “ooo”, “shopping” and “wiki”.