A Modern Copyright Framework for the Internet of Things (IoT): Intellectual Property Scholars' Joint Submission to the Canadian Government Consultation

15 Pages Posted: 24 Jun 2022

See all articles by Pascale Chapdelaine

Pascale Chapdelaine

University of Windsor, Faculty of Law

Anthony D Rosborough

European University Institute

Aaron Perzanowski

University of Michigan Law School

Bita Amani

Queen's University - Faculty of Law

Sara Bannerman

McMaster University Department of Communication Studies and Multimedia

Carys J. Craig

Osgoode Hall Law School, York University, Toronto

Lucie Guibault

Schulich School of Law

Cameron J. Hutchison

University of Alberta - Faculty of Law

Ariel Katz

University of Toronto - Faculty of Law

Alexandra Mogyoros

Lincoln Alexander School of Law at Toronto Metropolitan University; University of Oxford, Faculty of Law

Graham J. Reynolds

University of British Columbia (UBC), Faculty of Law

Teresa Scassa

University of Ottawa - Common Law Section

Myra Tawfik

University of Windsor - Faculty of Law; CIGI

Date Written: September 26, 2021

Abstract

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and the Internet of Things (IoT). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian, US, and international intellectual property law.

In what follows, we explain:

•The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights and interests in Canada’s copyright system, within the broader framework of the Constitution;

•That the modernization of the Copyright Act requires a careful examination of the copyright framework within larger observable trends of dominant positions in the marketplace and anti-competitive practices, of the extraction of big (personal) data, and of market and legal infrastructures’ heavy reliance on non-negotiated standard form contracts;

-That the growing prevalence of the IoT shows more clearly than ever before why Technological Protection Measures (TPMs) need to be recalibrated in keeping with the objectives of copyright, the Constitution, property rights, and of promoting competitive markets.

As such, we recommend:

-To narrow the scope of the TPM prohibitions under the Copyright Act, whereby the circumvention of access controls or copy controls for non-copyright-infringing purposes would be lawful, with a non-exhaustive list of such purposes to provide greater legal certainty. The same treatment would apply to the dealing in TPM circumvention technology enabling the exercise of non-copyright-infringing purposes.

In the alternative, the Copyright Act should be amended to:

-Introduce a new exception that would confirm that the TPM provisions (and other relevant exclusive rights in the Copyright Act) do not apply to the right to repair, including for maintenance and diagnostics purposes.

-Introduce a new exception to encourage follow-on innovation.

-Additionally, just as copyright holders should not be allowed to contract out of exceptions to copyright infringement through non-negotiated standard form agreements, neither should they be allowed to opt out of exceptions to TPM prohibitions by contract.

Keywords: Copyright, Canadian Copyright Reform, Intellectual Property, Internet of Things, IoT, Technological Protection Measure, TPM, Right to Repair, Personal Property, Follow-on innovation

Suggested Citation

Chapdelaine, Pascale and Rosborough, Anthony D and Perzanowski, Aaron and Amani, Bita and Bannerman, Sara and Craig, Carys J. and Guibault, L. and Hutchison, Cameron J. and Katz, Ariel and Mogyoros, Alexandra and Reynolds, Graham J. and Scassa, Teresa and Tawfik, Myra, A Modern Copyright Framework for the Internet of Things (IoT): Intellectual Property Scholars' Joint Submission to the Canadian Government Consultation (September 26, 2021). Queen's University Legal Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4140440

Pascale Chapdelaine (Contact Author)

University of Windsor, Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

Anthony D Rosborough

European University Institute ( email )

Via Boccaccio 121 (Villa Schifanoia)
Firenze
Italy

Aaron Perzanowski

University of Michigan Law School ( email )

United States

Bita Amani

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6
Canada

Sara Bannerman

McMaster University Department of Communication Studies and Multimedia ( email )

1280 Main St. W.
Hamilton, Ontario
Canada

Carys J. Craig

Osgoode Hall Law School, York University, Toronto ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
416 736 5189 (Phone)
416 736 5736 (Fax)

HOME PAGE: http://www.osgoode.yorku.ca

L. Guibault

Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

Cameron J. Hutchison

University of Alberta - Faculty of Law ( email )

Law Centre (111 - 89 Ave)
Edmonton, Alberta T6G 2H5
Canada

Ariel Katz

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-8892 (Phone)
416-978-2648 (Fax)

HOME PAGE: http://www.law.utoronto.ca/faculty/katz

Alexandra Mogyoros

Lincoln Alexander School of Law at Toronto Metropolitan University ( email )

350 Victoria St
Toronto, ON M5B 2K3
Canada

HOME PAGE: http://torontomu.ca/law

University of Oxford, Faculty of Law ( email )

Oxford
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/people/alexandra-mogyoros

Graham J. Reynolds

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

Teresa Scassa

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
6135625800x3872 (Phone)
6135645124 (Fax)

Myra Tawfik

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

CIGI ( email )

57 Erb Street West
Waterloo, Ontario N2L 6C2
Canada

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