I had the opportunity to present an “Animal Law Update” on October 21, 2016 at the New Jersey Association for Biomedical Research’s 23rd Annual IACUC Conference – the region’s premier training conference for professionals in laboratory animal research field.  Among this year’s 110 participants were key institution decision makers, Animal Care and Use Committee members, lab animal veterinarians, animal welfare compliance specialists and other lab animal research team members from the pharmaceutical industry, contract research organizations, academic research institutions, and government officials from USDA and NIH.

 

During my presentation I discussed the legal issues affecting animal-related industries, including the biomedical research community and analyzed activist activities that can help the research community predict, prepare for, and defend against such challenges.   I was also re-elected to the Board of Directors of the New Jersey Association for Biomedical Research during the annual meeting, held at the beginning of this conference.

 

Dr. William Stokes, Assistant Director, Animal Welfare Operations, USDA, APHIS, Animal Care provided an informative USDA Regulatory Update and Insights.  Dr. Stokes shared USDA Animal Care’s “5-year Strategic Plan” including the mission and vision of the agency, also available on its website:

New to the agency is the introduction of the term “critical noncompliant items” (“NCI’s) which includes all “direct noncompliant items” and certain “indirect noncompliant items.”  Dr. Stokes explained that this term was not really new, and had been used in practical effect, by the agency for a long time.

Dr. Stokes also provided important data from USDA’s inspections authorized by the Animal Welfare Act including:

  • There were over 10,000 unannounced inspections in FY16 of research facilities, breeders, dealers, exhibitors, transporters and intermediate handlers;
  • There were about 1350 inspections of the 1050 registered research facilities;
  • 76% of these inspections had no NCI’s;
  • Of the 561 NCI’s in research facilities, 38% of those were related to activities and conduct of Institutional Animal Care and Use Committees, and specifically related to the semi-annual reports that are required by the AWA.

Dr. Stokes  informed the attendees about the updated public search engine that serves as the database for USDA licensees and related inspection reports, known as the Animal Care Information System (ACIS3).  USDA  sent a bulletin on  09/22/2016 to stakeholders titled “New Terms Will Appear on USDA Inspection Reports.” As Dr. Stokes explained, there are two new terms that will appear on reports and in search results:

  • Focused inspections
  • Critical noncompliant items.

Dr. Stokes ended his presentation reminding all attendees that the goal of USDA and its licensees is to “optimize welfare.”

 

 

The Animal Welfare Act (AWA) has been disemboweled by local jurisdictions around the country that have banned sales to pet shops from USDA licensees and those specifically exempted from licensure, which shops rely upon to provide healthy puppies to people choosing to purchase a specially-bred puppy with specific physical and behavioral traits best suited to that pet owner’s particular needs.

Beginning around 2008, animal rights organizations began persuading lawmakers to implement decades-long campaigns to eliminate commercial dog breeding by banning sales of puppies in pet shops that they claim are sourced from “puppy mills,” a pejorative term used for any dog breeder, licensed or not. At their urging, lawmakers in many jurisdictions have limited pet shops to sales of animals sourced from shelters and rescues, which are largely unregulated entities that transfer ownership of randomly sourced dogs that have an unacceptably high prevalence of infectious diseases and other disorders.

While the AWA permits local jurisdictions to adopt more rigorous standards of care than the law prescribes, the bans have gone too far—in many cases sales are banned from USDA licensees based solely on the existence of validly held licenses. Sourcing bans that are not based on the standards of care licensees provide to animals should be considered pre-empted by the AWA. Reliance on the mere citation of a violation of the AWA on an inspection report as the basis for such bans is not legally sound. Congress established the mechanisms for licensure and loss thereof, which these local laws ignore.

Through the adoption of as over 150 laws across the country, the animal health and welfare requirements set forth by Congress in the AWA to protect animals and people have been effectively removed. If such laws are not enjoined, they will cumulatively render the federal regulation superfluous to the local sales bans or, at best, be subject to a labyrinthine patchwork of local regulation. This is precisely the situation the Framers of the Constitution sought to avoid through the Supremacy Clause.

Under the false banner of humane care and consumer protection, these bans will harm animals, their owners, and create a public health risk through the introduction of infectious diseases, which, like rabies, are fatal. If these local laws are not enjoined, they will eliminate the market that Congress has sought to regulate through the AWA. This cannot be a proper result.

This is the time of year that nonprofit organizations hope for contributions from those who have the means and interest to support these organizations.

This year, I encourage you to consider supporting curiousSCIENCEwriters.

curiousSCIENCEwriters (cSw) is an innovative, independent steAm initiative that trains creative high school communicators to bring complex science to the general public through the power of story. Science and technology are advancing exponentially, yet fewer than 7% of American adults are scientifically literate. With growing medical, environmental and social issues facing us all, it is essential that the next generation of communicators be prepared to help people make sense of emerging science that affects their personal health and well-being, as well that of the world around them. Whether scientists, journalists or citizen scientists, they will require critical thinking and technical skills to fight science illiteracy that has reached historic levels.

How does it work?

“Each year, curiousSCIENCEwriters selects a group of high school students through a highly competitive application process to participate in an intensive extracurricular training program. A key element includes mentoring by scientists and science communications professionals through remote and onsite sessions. This collaborative process, which involves teams of student writers, editors, and graphic designers, results in credible, engaging science stories that the student staffers help disseminate through a variety of traditional and trending media outlets.”

Jayne Mackta, a colleague, supporter and friend, is the founder and creative director of curiousSCIENCEwriters.

Jayne has devoted her adult life to advocating for families affected by genetic disorders and promoting public understanding of biomedical research. Since her first job out of college with the Encyclopedia Americana where she reduced lengthy articles to single paragraphs, she has searched for the secret of saying more in fewer words. A fierce enemy of jargon, Jayne delights in coaching young editors in the art of deleting words that obscure meaning.

cSw, a program of States United for Biomedical Research (SUBR), relies exclusively on tax-deductible donations from citizens like you, concerned about the toll science illiteracy is taking on the health and welfare of our world.

Click here to read some of the fascinating stories written by cSw student staffers.

Consider this innovative and important program if you are donating this year. You can donate online by clicking here.

 

On Monday, November 14, 2016, the Assembly Environment and Solid Waste Committee will consider the Assembly version (A2338) of Senator Lesniak’s amendments to the Pet Purchase Protection Act (S63).  The problems with these amendments were previously discussed here.

Anyone interested in testifying should attend the Committee meeting at 2:00 PM Committee Room 9, 3rd Floor, State House Annex, Trenton, NJ.

A bill (A3899) prohibiting veterinary declawing procedures in New Jersey will be considered by the Assembly Agriculture and Natural Resources Committee on Monday, November 14, 2016.

This bill would create civil and criminal liabilities for any person who shall:

Perform, or cause to be performed, an onychectomy (declawing) or flexor tendonectomy procedure on a cat or other animal in violation of section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill).

As summarized in the bill statement:

This bill would prohibit a person from performing, or causing to be performed, an onychectomy (declawing) or flexor tendonectomy procedure by any means on a cat or other animal, unless the procedure is deemed necessary for a therapeutic purpose by a licensed veterinarian. Any person who violates this provision would be guilty of a disorderly persons offense, which is punishable by a fine of up to $1,000, a term of imprisonment of up to six months, or both. A violator would also be subject to a civil penalty of between $500 and $2,000.

Section 1(a) contains the same language that was included in an ordinance banning this procedure that passed in West Hollywood on April 21, 2003.

1.    (New section) a. No person shall perform, or cause to be performed, an onychectomy (declawing) or flexor tendonectomy procedure by any means on a cat or other animal, unless the procedure is deemed necessary for a therapeutic purpose by a licensed veterinarian.  A person who violates this provision shall be guilty of a disorderly persons offense.

This ordinance was upheld in court as constitutional when challenged by veterinary associations. Veterinary Med. Ass’n v. City of W. Hollywood, 61 Cal. Rptr. 3d 318 (Cal. Ct. App. 2007).

Section 1(b) requiring veterinarians to “prepare and file a written statement with the Department of Health setting forth the purpose for performing the procedure and providing the name and address of the owner or keeper of the animal, and provide a copy of that statement to the owner of the animal” impermissibly restricts the veterinary license that is granted by the Division of Consumer Affairs, not the Department of Health.  Furthermore, the disclosure of the names and addresses of pet owners and their veterinarian present a public safety and privacy concern, and violates the state law mandating that veterinarians provide for the confidentiality of all medical records. N.J.A.C. 13:44-4.9(b).

The sad fact is that there are cat owners who will give up their cats because they are destroying furniture who would otherwise keep them as pets if they had this procedure.  Unlike dogs, there are too many cats in shelters, and living in feral populations, and this will only contribute to those numbers.

As reported in a literature review prepared by the AVMA’s Animal Welfare Division, “Welfare Implications of Declawing of Domestic Cats,” published on Feb. 16, 2016, the benefits of the procedure were discussed.

In some cases declawing may be an alternative to relinquishment, outdoor housing or euthanasia. For example, in a 1991 survey of Ontario veterinarians, respondents indicated that approximately 50% of their clients would no longer own their cat if it had not been declawed. Following aggression, a survey of veterinarians reported scratching as the behavioral problem most frequently associated with abandonment of cats in Brazil. Unacceptable behaviors such as daily scratching increase the risk of relinquishment of an animal to a shelter, and declawing decreased the risk of relinquishment. As approximately 72% of cats relinquished to animal shelters are euthanatized, owners may feel they are faced with the choice of declawing their pet cat or potentially condemning it to death. Because outdoor cats are exposed to predators, street traffic, inclement weather, and diseases (e.g., feline leukemia, feline infectious peritonitis), owners may not consider keeping a scratching cat outside to be a viable alternative. Thus declawing may sometimes be necessary to ensure that a pet cat keeps its home. (Citations omitted).

The article also reviews the risks, including welfare concerns related to this veterinary procedure.

Veterinarians cannot perform this surgery, or any other, without obtaining informed consent from their patient’s owner.

The AVMA explains, in its position statement on this topic:

The decision to declaw a cat should be made by the owners in consultation with their veterinarian. Declawing of domestic cats should be considered only after attempts have been made to prevent the cat from using its claws destructively or when its clawing presents an above normal health risk for its owner(s).

Anyone interested in testifying on Monday should attend the hearing at 2:00 pm in Committee Room 15, 4th floor, State House Annex in Trenton.

NJDEP adopted a regulation in 2015 that “permits use of enclosed foothold traps to capture small fur-bearing animals, such as raccoons and opossums.”  N.J.A.C. 7:25-5.12 (g).

As set forth in the 2015-16 New Jersey Game Code, the use of the enclosed foothold traps is expressly permitted while the use of steel-jaw leghold traps is prohibited:

(g) Enclosed foothold traps may be used to harvest furbearing animals during the prescribed
open seasons and shall be subject to the following requirements:
1. All triggering and restraining mechanisms shall be enclosed by a housing;
2. The triggering and restraining mechanism is accessible only by a single opening when the
trap is set;
3. The access opening does not exceed two inches in diameter or when measured diagonally;
4. The triggering mechanism can be activated only by a pulling force; and
5. The trap has a swivel-mounted anchoring system.

(e) Steel-jaw leghold type trap:
1. Effective October 27, 1985, and thereafter, no person in this State shall:
i. Manufacture, sell, offer for sale, possess, import or transport an animal trap of the steel-jaw
leghold type;
ii. Take or attempt to take any animal by means of a trap of the steel-jaw leghold type; or
iii. Use a steel-jaw leghold type trap.

Rejecting a challenge by several state and federal animal rights organizations that the New Jersey Fish and Game Council exceeded their authority by permitting the use of the enclosed foothold traps, the Appellate Division panel of the Superior Court of New Jersey upheld the regulation and the found no deficiencies in the process used to promulgate the rule.

Specifically, the Court found there was statutory authorization for “the Council to promulgate regulations such as the one at issues here, which prescribed the manner and means of taking fur-bearing animals through authorization of enclosed foothold traps as an alternative to the banned steel-jaw leghold type traps, subject to certain conditions.”

Citing to New Jersey Society for the Prevention of Cruelty to Animals v. N.J. Dep’t of Agric., 196 N.J. 366 (2008) the Court agreed with the holding by the state Supreme Court, that the process used by the Council was sound, stating:

In New Jersey Society for the Prevention of Cruelty, our Supreme Court held that because the regulations fell within the agency’s area of technical expertise [humane care of livestock], it ‘would need to discern an inherent flaw in the very process by which they were drafted and adopted . . .’ to invalidate the regulations . . . The Court determined that the ‘extensive record and careful response of the Department to the overwhelming number of comments’ did not warrant such a conclusion . . .The same could be said here.  (internal citations omitted).

The extensive record and careful response of the Department, defending the humane standards of care of livestock referenced was my responsibility as the Director of the Division of Animal Health at the time, with great assistance from DAG Nancy Costello-Miller.  In that case, the appellate division upheld the regulations, but the activists appealed to the Supreme Court.

Here, an appeal is also likely.  What is clear is that the Senate Concurrent Resolution and its sister Assembly version 25 that would have determined “that Fish and Game Council’s proposal to allow use of enclosed foothold traps is inconsistent with plain language and legislative intent of 1984 law banning animal traps of steel-jaw leghold type” is now moot.  However, a bill to ban the foothold traps is likely to be introduced.

A note about rabies, a nearly 100% fatal zoonotic disease that has been endemic in New Jersey since individuals relocated infected raccoons from the south to New Jersey. The NJ Department of Health reports on rabies testing each year and results each year.  The latest report is available here.

As recently reported by Stephanie Strom in the NY Times (Business Section, Oct. 21, 2016), hens housed in aviaries have been observed to suffer higher morbidity and mortality rates, compared to hens housed in cages.  As egg farmers, veterinarians  and scientists previously warned, concerns about the welfare of hens housed in aviaries results from the well-known cannibalistic behavior of hens.  That behavior historically lead to the husbandry practice known as beak trimming, a practice activists consider a “mutilation.”

As discussed previously, the husbandry and housing techniques used to protect of animals raised for food or fiber has developed over time, informed by animal scientists researching and testing different methods that provide for the health of the animals, their welfare, the safety of their caretakers, and to minimize negative impacts on the environment.

In “A Comparison of Cage and Non-Cage Systems for Housing Laying Hens,” as reported by the AVMA, there are many factors that must be considered:

contributing to the hens’ welfare, including whether hens are free to move; whether the system allows them to engage in behaviors that are normal for hens; whether they are protected from disease, injury, and predators; whether food and water are available in the appropriate amounts and type, and are of high quality; and whether the hens are handled properly.

 For example, sows, known as the “mixing vessels” of avian influenza, are often raised in enclosed structures to prevent the spread of infectious diseases from wild animals and insect vectors.  Their enclosures also protect them from exposure to parasites and protect the environment from their destructive rooting behavior and fecal contamination.  

However, similar to public concerns about hen caged housing, bans on the use of gestation stalls for sows have been enacted throughout the country.  Unfortunately, where these stalls are banned, hog farmers cannot provide updated sow housing techniques and equipment that allow sows a choice-protection in their stalls from aggressive animals or the ability to move around in the group-housing area.

 As the AVMA has repeatedly pointed out, like for hens, there are pros and cons to every type of housing for sows.  In a literature review and analysis, titled “Welfare Implications of Gestation Sow Housing” published on Nov. 19, 2015, the AVMA concluded: 

Gestation sow housing systems vary in their advantages and disadvantages regarding the welfare of the sow. When comparing housing systems for pregnant sows, making a definitive welfare judgment requires assigning weights to an array of contributing welfare indicators including, but not limited to, type, severity and incidence of injuries; behavioral and social opportunities; and exposure to parasites, disease, and harmful or aversive stimuli. As no universally accepted weighting system exists, there is no clear consensus as to which is the superior system across all situations. However, the public is generally more critical of gestation stall housing than other systems, which has led to voluntary and mandatory transition to alternative housing systems by some producers. As such there is an ongoing need to develop an array of housing systems that suit local conditions, effectively provide enhanced opportunities for the sows to move and interact socially, and avoid an unacceptable increase in negative outcomes such as injury associated with aggression or exposure to environmental hazards.

Absolute bans on husbandry and housing techniques should be carefully considered, and informed by animal scientists, veterinarians, and the farmers who know the most about the needs of their animals.

New Jersey Assemblyman Troy Singleton, sponsor of “Moose’s Law,” an animal abuse registry law which I have discussed several times, has proposed another animal cruelty-related bill.  This time, in Assembly Bill No. 4313, Singleton proposes to add to the list of possible civil animal cruelty offenses conduct that “[p]uts a domestic companion animal in danger of injury or imminent harm.”

Notably, the amendment is not based on actual injury or imminent harm, but conduct that “puts a domestic animal” in such danger.  If a professional, government-authorized agency were responsible for making such determination, with the requisite training and background to do so, this amendment might be reasonable and warranted .  Unfortunately, in New Jersey, the animal cruelty statutes are enforced by quasi-governmental agencies (State and/or County Societies for the Protection of Cruelty to Animals) which have been repeatedly criticized in statewide public investigations as being corrupt, ineffective, self-interested, and unable to fulfill their duties without violating the state and federal constitutional rights of New Jersey citizens.  (See, e.g., SCI and Animal Welfare Task Force Reports).

Even if the problem of law enforcement were resolved, for example, as has occurred in New York City, since the ASPCA relinquished its law enforcement authority to the NYCPD,

Singleton’s proposed amendment suffers from the quintessential issue that a law is void for vagueness and therefore unenforceable.

What conduct would constitute placing a domestic animal in “actual injury or imminent harm” that is not already included in the statutory provisions of the State’s animal cruelty statutes?

How does this proposed amendment provide any additional protection to animals that are not already specified in the existing statute related to civil violations, provided below?

Before additional enforcement authority is provided to enforcers of the animal cruelty statutes in New Jersey, measures must be taken to ensure that the enforcing agencies are properly trained law enforcement professionals—not State and County SPCA’s.

The following conduct is currently prohibited by the State’s animal cruelty civil statutes:

4:22-26. Acts constituting cruelty in general; penalty:

A person who shall:

Overdrive, Overdrive, overload, drive when overloaded, overwork, deprive of necessary sustenance, abuse, or needlessly kill a living animal or creature, or cause or procure any such acts to be done;

Torment, torture, maim, hang, poison, unnecessarily or cruelly beat or needessly mutilate a living animal or creature; or cause or procure any such acts to be done-

Cruelly kill, or cause or procure the cruel killing of, a living animal or creature, or otherwise cause or procure the death of a living animal or creature from commission of any act described in paragraph (2) of this subsection;

Inflict unnecessary cruelty upon a living animal or creature, or unnecessarily fail to provide a living animal or creature of which the person has charge either as an owner or otherwise with proper food, drink, shelter or protection from the weather, or leave it unattended in a vehicle under inhumane conditions adverse to the health or welfare of the living animal or creature-

Receive or offer for sale a horse that is suffering from abuse or neglect, or which by reason of disability, disease, abuse or lameness, or any other cause, could not be worked, ridden or otherwise used for show, exhibition or recreational purposes, or kept as a domestic pet without violating the provisions of this article;

Keep, use, be connected with or interested in the management of, or receive money or other consideration for the admission of a person to a place kept or used for the purpose of fighting or baiting a living animal or creature;

Be present and witness, pay admission to, encourage, aid or assist in an activity enumerated in subsection e. of this section;

Permit or suffer a place owned or controlled by him to be used as provided in subsection e. of this section;

Carry, or cause to be carried, a living animal or creature in or upon a vehicle or otherwise, in a cruel or inhumane manner;

Use a dog or dogs for the purpose of drawing or helping to draw a vehicle for business purposes;

Impound or confine or cause to be impounded or confined in a pound or other place a living animal or creature, and shall fail to supply it during such confinement with a sufficient quantity of good and wholesome food and water;

Abandon a maimed, sick, infirm or disabled animal or creature to die in a public place;

Willfully sell, or offer to sell, use, expose, or cause or permit to be sold or offered for sale, used or exposed, a horse or other animal having the disease known as glanders or farcy, or other contagious or infectious disease dangerous to the health or life of human beings or animals, or who shall, when any such disease is beyond recovery, refuse, upon demand, to deprive the animal of life;

Own, operate, manage or conduct a roadside stand or market for the sale of merchandise along a public street or highway; or a shopping mall, or a part of the premises thereof, and keep a living animal or creature confined, or allowed to roam in an area whether or not the area is enclosed, on these premises as an exhibit; except that this subsection shall not be applicable to: a pet shop licensed pursuant to P.L.1941, c.151 (C.4:19-15.1 et. seq.); a person who keeps an animal , in a humane manner, for the purpose of the protection of the premises; or a recognized breeders association, a 4-H club, an educational agricultural program, an equestrian team, a humane society or other similar charitable or nonprofit organization conducting an exhibition, show or performance;

Keep or exhibit a wild animal at a roadside stand or market located along a public street or highway of this State; a gasoline station; or a shopping mall, or a part of the premises thereof;

Sell, offer for sale, barter or give away or display live baby chicks, ducklings or other fowl or rabbits, turtles or chameleons which have been dyed or artificially colored or otherwise treated so as to impart to them an artificial color.

Use any animal, reptile or fowl for the purpose of soliciting any alms, collections, contributions, subscriptions, donations, or payment of money except in connection with exhibitions, shows or performances conducted in a bona fide manner by recognized breeders’ associations, 4-H clubs or other similar bona fide organizations;

Sell or offer for sale, barter or give away living rabbits, turtles, baby chicks, ducklings or other fowl under two months of age, for use as household or domestic pets;

Sell, offer for sale, barter or give away living baby chicks, duckling or other fowl, or rabbits, turtles or chameleons under two months of age for any purpose not prohibited by subsection q. of this section and who shall fail to provide proper facilities for the care of such animals;

Artificially mark sheep or cattle, or cause them to be marked, by cropping or cutting off both ears, cropping or cutting either ear more than one inch from the tip enf thereof, or half cropping or cutting both ears or either ear more than one inch from the tip end thereof, or who shall have or keep in the person’s possession sheep or cattle, which the person claims to own, marked contrary to this subsection unless they were bought in market or of a stranger;

Abandon a domesticated animal;

For amusement or gain, cause, allow, or permit the fighting or baiting of a living animal or creature;

Own, possess, keep, train, promote, purchase or knowingly sell a living animal or creature for the purpose of fighting or baiting that animal or creature;

Gamble on the outcome of a fight involving a living animal or creature;

Knowingly sell or barter or offer for sale or barter, at wholesale or retail, the fur or hair of a domestic dog or cat or any product made in whole or in part from the fur or hair of a domestic dog or cat, unless such fur or hair for sale or barter is from a commercial grooming establishment or a veterinary office or clinic or is for use for scientific research;

Knowingly sell or barter or offer for sale or barter, at wholesale or retail, for human consumption, the flesh of a domestic dog or cat or any product made in whole or in part from the flesh of a domestic dog or cat;

Surgically debark or silence a dog in violation of section 1 or 2 of P.L.2002, c. 102 (C:4:19-38 or C.4:19-39);

Use a live pigeon, fowl or other bird for the purpose of a target, or to be shot at either for amusement or as a test of skill in marksmanship, except that this subsection and subsections bb. And cc. shall not apply to the shooting of game;

Shoot as a bird used as described in subsection aa. of this section, or is a party to such shooting; or cc. Lease a building, room, field or premises, or knowingly permit the use thereof for the purposes of subsection aa. Or bb. Of this section- Shall forfeit and pay a sum according to the following schedule, to be sued for and discovered, with costs, in a civil action by any person in the name of the New Jersey Society for the Prevention of Cruelty to Animals;

The Vancouver Aquarium filed suit against documentary filmmakers for alleged copyright infringement and breach of contract regarding at least some portions of a video entitled Vancouver Aquarium Uncovered, which purportedly exposes “the truth about whales and dolphins in captivity” at the Aquarium. In “Oral Reasons for Judgment” the Honorable Madam Justice Watchuk described the factual background of the case, in relevant part, as follows:

The Aquarium’s civil complaint alleged that the video contains some of the plaintiff’s copyrighted works, including from the aquarium website, the aquarium blog, and the aquarium’s posts on YouTube.

The Aquarium also submits that the use of film taken by the defendants at the aquarium was in breach of terms of a contract between it and the defendants dated April 24, 2015.

As to the copyright infringement claims, “the defendants submit that it is clear that the fair dealing provisions of the [Canadian] Copyright Act” provide a defense for their conduct,” which they claim was a non-commercial purpose for research and education or for criticism and review, citing the following provisions of the Act:

Research, private study, etc.

29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

Criticism or review

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a)the source; and

(b)if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal.

Non-commercial user-generated content

29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for noncommercial purposes;

(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and

(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

The Court held that fair use and fair dealing were issues of fact to be determined by the trial court.

On the question of injunctive relief, the Court held that all 15 contested segments were to be removed from the video during the pendency of the trial, because their continued publication could not be remedied by damages, and would cause the Aquarium irreparable harm.

 

 

For at least the third year in a row, United Poultry Concerns (UPC) the animal rights nonprofit “promoting the compassionate and respectful treatment of domestic fowl,” filed a lawsuit to ban the religious practice called Kaporos, where a chicken is used in a religious ritual and then slaughtered during the high holy days.

UPC’s lawsuit was brought in California as a “private attorney general action under California Business and Professions Code § 17200 (the ‘Unfair Competition Law’or ‘UCL’). Plaintiff seeks an injunction to require compliance with California Penal Code (‘PC’) section 597(a), which prohibits intentional killing of an animal and does not contain an exception for religious sacrifice. Defendants [allegedly] engage in business practices for profit in which they charge a fee to kill and discard animals in direct violation of PC 597(a).” United Poultry Concerns v. Chabad of Irvine, et al., Case No. 8:16-cv-01810-AB-GJS (C.D. Cal. Sept. 29, 2016).

The Court had initially granted Plaintiff’s Temporary Restraining Order (Id., Dkt. No. 18), but on Oct. 11, 2016, in a “Telephonic conference re: Defendants’ Motion to Dissolve Temporary Restraining Order; Opposition to Plaintiff’s Preliminary Injunction Motion; and Motion to Strike the Complaint,” Hon. André Birotte Jr., U.S.D.J. dissolved the Temporary Restraining Order and ordered that the “parties shall meet and confer to set briefing deadlines and a proposed date for the Preliminary Injunction hearing.” Id., Dkt. No. 29.

In the past, lawsuits were filed in New York City.

According to the Alliance to End Chickens Kaporos’ (the Alliance) website, Karen Davis, founder of UPC also founded the Alliance in 2010.

As explained on its website:

The Alliance to End Chickens as Kaporos is an association of groups and individuals who seek to replace the use of chickens in Kaporos ceremonies with money or other non-animal symbols of atonement. The Alliance does not oppose Kaporos per se, only the cruel and unnecessary use of chickens in the ceremony.

More to come on this case.