Law Times

Page 12 July 25, 2016 • law Times www.lawtimesnews.com As podcasting grows, so does legal work BY YAMRI TADDESE Law Times E ntertainment lawyers ex- pect the rise and populari- ty of podcasting will create fodder for legal work in the years to come as a domain once left for amateurs becomes more formal and commercialized. "Probably up until a couple years ago, [podcasting] wasn't really a revenue-generating kind of business. That certainly has started to change," says enter- tainment lawyer Danny Webber of Hall Webber LLP. "People are making money doing it and it's become a little bit more formal, so I think it does have a potential to grow into an area that we will participate in." Until recently, podcasting meant largely informational content with people talking about their own perspectives, Webber adds, but as the medium grows in popularity and array of genre, the future holds promise for more legal input. "It's sort of like the phenom- enon of YouTube videos [where, at first,] people would just throw up amateur videos on YouTube and hope that people would find them," Webber says, adding that's now becoming more formal with the creation of channels aggregat- ing specific content that's promot- ed and easier to find. "I think it will be similar for podcasting. As opposed to some- one sitting in their basement and putting it on the Internet and hoping someone finds it, it's now [likely] that it will be licensed to particular platforms where pod- casts are promoted and aggregat- ed into categories," Webber says. "Once that becomes more formalized, it's certainly going to lead to licensing agreements between the content creators and platforms and channels," which creates room for legal ad- vice, Webber adds. When it comes to issues of copyright, podcasters have likely gotten away with infringement because they've so far been f ly- ing under the radar, according to Webber, but as the platform becomes more popular and or- ganized, the risk of liability will be greater. Kathleen Simmons, copy- right lawyer at Van Loon Sim- mons PC, says the transition of content to the online environ- ment is already generating a lot of work for lawyers practising in the copyright area. But apply- ing copyright laws to podcasting isn't a clear-cut endeavour. "Podcasting is one of those areas where it's kind of in a grey zone in terms of how the copy- right framework applies to it," says Simmons, whose clients in- clude commercial broadcasters and digital media companies. "Our experience has been trying to figure out whether and to what extent the existing copy- right tariffs are applicable [to podcasting]. There's not a lot of consistency in the definition of what certain kinds of activities are online," she says. For example, The Society of Composers, Authors and Music Publishers of Canada's tariff 22, which deals with the use of mu- sical work online, has various categories of licences. "It's some- times hard to tell what category a podcast would fall into," Sim- mons says. "That's part of the challenge for lawyers working in the copyright world." Podcasts could attract copy- right liabilities for both repro- duction and streaming, says David Fewer, director of the Ca- nadian Internet Policy & Public Interest Clinic. "You can download a pod- cast, in which case you have a reproduction happening, or you can play it just like you'd play the radio live," Fewer says. In 2007, Simmons and another lawyer, Andy Kaplan-Myrth, wrote a legal guide to Canadian podcasters. In the preface guide- line, University of Ottawa profes- sor Michael Geist said Canada's growing podcasting community deserves support and attention. "While accessible and easy- to-use technology has removed many technological barriers for would-be podcasters, the legal challenges can be daunting. Pod- casting touches on several legal areas, including copyright, trade- mark, and personality rights, each of which brings its own complex- ities and uncertainties," he wrote. "Conventional broadcasters typ- ically enjoy the benefit of internal legal resources; however, until now, most individual podcasters have been forced to confront legal questions on their own." The guide, called Podcast- ing Legal Guide for Canada, addressed issues of copyright, trademark, and fair dealing. But Kaplan-Myrth tells Law Times there have been major changes to the copyright act since the legal guide was written. "I'm not sure anybody has updated it since then," Kaplan-Myrth says. "So that would be an interesting project." When people subscribe to podcasts on their phones, the terms and conditions of use are largely unclear, according to Sunny Handa, partner at Blake Cassels & Graydon LLP. "Folks listen to podcasts in very different ways. Some people sit on their computer and listen to them. Others, who are like me, would have an app on their phone," says Handa, who listens to six to seven podcasts regular- ly. When he subscribed to those podcasts, he didn't accept any licensing terms and conditions, he says. The role of legal advice for podcasters extends beyond copyright and licensing issues, Fewer says. Part of the charm of podcasts may be that they're generally informal conversa- tions rather than scripts. But if defamation, personality rights, trade slander, and product en- dorsement are problems for TV, they're problems for podcast- ers, too, Fewer adds. Fewer says some of his favourite podcasters apologize for off-the-cuff re- marks in previous episodes. "As any particular podcast gains an audience, it becomes more of a target for redress should a legal wrong occur," he says. LT FOCUS SKIMMING THE SURFACE IS FINE UNTIL A DEEPER DIVE IS REQUIRED. Start with Practical Law Canada. Whether you need a surface view or a deeper understanding of a legal issue, Practical Law Canada offers up-to-date, straightforward how-to guides, annotated standard documents, checklists, and more. Our expert lawyer-editors have significant practice experience. They create and maintain hundreds of practical resources to match the needs of practitioners in the following practice areas: • Capital Markets & Securities • Corporate and M&A • Commercial Transactions • Employment • Competition • Finance • Corporate & Commercial Litigation • Personal Injury Litigation For more information or to sign up for a free trial, visit www.practicallaw.ca © 2016 Thomson Reuters Canada Limited 00234QL-A53139-NK Carswell-53139_LT_May16_16.indd 1 2016-07-15 11:58 AM Kathleen Simmons says applying copy- right laws to podcasting isn't a clear-cut endeavour.

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