Re: Harpsichordist (Was: web-publishing & copyright...)

John Sankey <bf250[_at_]freenet.carleton.ca> wrote:
>
> First, an 'underlying content' concept would not, I am told,
> apply to this matter in Canada given the nature of the
> copying. I would need solely to provide a preponderance of
> evidence that his material was 'derived from' my published
> recordings, as opposed to his having listened to my recordings
> then learned how to play the music himself. My counsel feels
> that, as a foreigner in an American court against an American
> citizen who has followed American procedures, I would have to
> establish my case well beyond that.
>
> Second, on winning in Canada, I am entitled to statutory
> damages. Canada has implemented the Berne moral rights in
> creative work, which apply even if I give my recordings away,
> as in fact I do. (If my actual loss were greater, I would have
> to establish that to claim it, as in the USA.)
>
> Third, on winning in any convincing way in Canada, I would be
> awarded my costs.
>
> However, contingency fees are not permitted in Canada - I would
> have to pay all the costs up front, then recover them in an
> independent action (in the USA in this case).

Are you sure? The law in this matter has been developing in recent times and there are certainly recentish Australian precedents which suggest that uplift contingency fees are legal. These may be followed in Canada. Percentage contingency fees are most definitely not legal.

I seem to recall some experimentation in Canada with contingency fees in particular types of cases when I researched this issue 4-5 years ago. You might want to contact your local lawyer's professional body to discover what it is that they regard as illegal (as they would be recommending prosecution if there was any question).

Even if there is no possibility of contingency fee you may still find a lawyer prepared to take on the case.

Tim Arnold-Moore, LL.B. (Melb)        | Multimedia Database Systems, RMIT  |
tja[_at_]mds.rmit.edu.au  B.Sc.(Hons Melb) | 723 Swanston St    -----------------
Tel: +61 3 9282 2487   Fax: ..2490    | Carlton 3053       |  simul iustus 
    http://www.mds.rmit.edu.au/People/Tja/tja.html         |   et peccator