Wednesday, March 13, 2019

Update on Access Copyright Proposed Post-Secondary Educational Tariffs: 2011 - 2013 and 2014 - 2017


On February 19, 2019, I published a blog about how the Board was seeking comments from the “Parties” on the proposed draft tariffs sought by Access Copyright for the post-secondary sector. The Board confirmed to me that the only “Parties” were Access Copyright and Mr. Sean Maguire, a self-represented student. The Board kindly provided me a copy of the draft tariffs, which I posted on that blog.  

Then, on March 6, 2019 in the morning and just after the beginning of the final three hours of the Federal Court of Appeal (“FCA”) hearing in Access Copyright v. York University, the Copyright Board sent out the email shown below. Almost all of the addressees were the original list of objectors and interveners from 2010 in the Access Copyright post-secondary tariff. The Board’s only limit on who it will hear from now is that the comments must be from an “affected person” – which presumably would include any individual or institution concerned about copyright in the post-secondary realm in Canada, i.e. any post-secondary students, librarians, teachers, administrators, colleges, universities and the institutions that represent them. The email has been widely shared:

From: "Boisjoly-Letourneau, Karine (CB/CDA)" <Karine.Boisjoly-Letourneau@cb-cda.gc.ca>
Date: Wednesday, March 6, 2019 at 9:39 AM
To:  [XXXXXXXXXXXXXXXX]
Cc: "McDougall, Gilles (CB/CDA)" <Gilles.McDougall@cb-cda.gc.ca>, "Campanella, Nadia (CB/CDA)" <Nadia.Campanella@cb-cda.gc.ca>
Subject: Access Copyright – Post-Secondary Educational Institutions (2011-2013 and 2014-2017) - Notice [CB-CDA 2019-013]

[CB-CDA 2019-013]

NOTICE OF THE BOARD

The Board wishes to consult affected persons on issues of tariff wording before proceeding to certification.

The Board seeks comments on the two attached draft tariffs, for the periods of 2011-2014 and 2015-2017. The text of these tariffs is based, respectively, on the 2012 AUCC Model Licence (Exhibit AC-2V), and the University Three-Year Premium Licence (Exhibit AC-23N), which are attached. Affected persons shall comment on the feasibility and clarity of the terms of the tariff. Comments may be informed by the attached comments of the Parties to this proceeding: Mr. Maguire and Access Copyright.
Portions of the draft tariffs in respect of rates and interest factors have not been included in the attached versions.
 Any affected person wishing to comment on the draft tariffs may do so by no later than Friday, March 15, 2019, by sending their comments to the Board. Any comment should be no longer than 3 pages in length.
The Board will subsequently provide Parties to this proceeding with all comments received pursuant to this Notice and provide an opportunity to reply thereto in a separate notice.
 Karine Boisjoly-Létourneau
Assistant Clerk│Greffière adjointe
Copyright Board of Canada│Commission du droit d’auteur du Canada
56 Sparks, Suite│Bureau 800
Ottawa ON K1A 0C9
Telephone│Téléphone 613.948.7257

(highlight added)

For the convenience of readers who didn’t get the mail, here are links to the 2012 AUCC Model Licence (Exhibit AC-2V), and the University Three-Year Premium Licence (Exhibit AC-23N) and the comments of Access Copyright and Sean Maguire.

The above email of March 6, 2019 now appears as a Notice on the Board’s website, but without the attachments.

The Board has since advised by email dated March 11, 2019 that the deadline of March 15, 2019 has been extended to March 22, 2019. The Board has issued the following Notice, which has not yet been posted online as a Notice:

[CB-CDA 2019-014]
NOTICE OF THE BOARD
Earlier today Counsel for Universities Canada requested an extension to Wednesday, March 27, 2019, of the March 15, 2019, deadline for comments set out in Notice 2019-013. This request is partially granted.
Any affected person wishing to comment on the draft tariffs in the above-mentioned file may do so by no later than Friday, March 22, 2019, by sending their comments to the Board.

HPK

PS - the Board has now put the foregoing Notice [CB-CDA 2019-014] on its website.


Monday, March 04, 2019

Access Copyright v. York U – the Federal Court of Appeal Hearing is March 5 and 6, 2019


The long-awaited hearing in the appeal of the Federal Court’s decision in  Canadian Copyright Licensing Agency v. York University, 2017 FC 669 (CanLII), will take place on March 5 and 6, 2019.
Indeed, if a tariff is not mandatory when parties voluntarily come to the Board to “arbitrate” a dispute, it should be all the more (“a fortiori” as lawyers say) non-mandatory when parties are dragged kicking and screaming before the Copyright Board and would prefer to clear their copyright needs in other ways.

As followers of this case will know, I attempted to get leave to intervene for the Canadian Association of Research Libraries (“CARL”). Unfortunately, in my opinion, the motion for leave to intervene was dismissed and a motion for reconsideration of that decision was also dismissed.

For those who are interested, which may include the academic community in general and copyright law professors and practitioners in particular, I am posting some of the material that was filed on behalf of CARL:

[112I conclude that the statutory licensing scheme does not contemplate that licences fixed by the Board pursuant to s. 70.2 should have a mandatory binding effect against users. However, this case does not require this Court to decide whether the same is true of collective organizations. It may be that the statutory scheme’s focus on regulating the actions of collective organizations, and the case law’s focus on ensuring that such organizations do not devolve into “instruments of oppression and extortion” (Vigneux v. Canadian Performing Right Society, Ltd.1943 CanLII 38 (SCC), [1943] S.C.R. 348, at p. 354, per Duff J., quoting Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109, at p. 128) would justify finding that the Board does have the power to bind collective organizations to a licence based on the user’s preferred model — transactional or blanket — on terms that the Board finds fair in view of that model. However, this issue was not argued in this case.

[113I find that licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.
(highlight added)
By way of update, here is what I recently said about this issue in my December 10, 2018 brief to the INDU Committee in its s. 92 hearings:
2.     We need to clarify that copyright board tariffs are not mandatory for users
The elephant in the room is the issue of whether Copyright Board tariffs are mandatory. They are not. I successfully argued that case in the Supreme Court of Canada (“SCC”) three years ago[2] – but most of the copyright establishment is in denial or actively resisting. A tariff that sets the maximum for a train ticket from Ottawa to Toronto is fine – and we used to have such tariffs before deregulation. But travellers were always free to take the plane, bus, their own car, a limousine, their bicycle or use any other legal and likely unregulated means.

There is intense litigation ongoing between Access Copyright and York University – now in the appellate stage and other litigation in the Federal Court involving school boards. Unfortunately, York failed in the trial court to address the issue of whether final approved tariffs are mandatory.[3]Hopefully, the FCA and maybe the SCC if necessary will get this right in due course. But we can’t be sure, and the other side is lobbying you heavily on this issue, including with such devious and disingenuous suggestions as imposing a statutory minimum damages regime of 3 – 10 the tariff amount on the  totally inappropriate basis of symmetry with the SOCAN regime – which is the way it is for good reasons that go back more than 80 years but would be totally inappropriate for tariffs outside the performing rights regime.

I urge you to codify and clarify what the SCC has said in 2015, consistently in turn with previous SCC and other jurisprudence going back decades – that Copyright Board tariffs are mandatory only for collectives but optional for users, who remain free to choose how they can best legally clear their copyright needs.

My suggestion is that Parliament use the well know legislative drafting technique of stating “for greater certainty”. This phrase already occurs 14 times in the Copyright Act, including for example s. 13(7). which states:

(7) For greater certainty, it is deemed always
to have been the law that a grant of an exclusive
licence in a copyright constitutes the grant
of an interest in the copyright by licence.
R.S., 1985, c. C-42, s. 13; 1997, c. 24, s. 10; 2012, c. 20, s. 7.
(highlight added)

I am suggesting that Parliament should now declare that:

For greater certainty, it is deemed always to have been the law that when the Copyright Board approves or certifies a tariff, whether interim or final, the collective to which that tariff applies cannot demand higher royalties or demand more onerous related terms and conditions than those approved by the Board, but the duty to pay such royalties and comply with their related terms and condition applies only to a user who has paid or offered to pay the royalties under such a tariff. A user who has not offered to pay such royalties may nonetheless be liable for copyright infringement.
(highlight added)

2) Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57.  See paras. 101 – 113. The factum presented to the SCC as prepared by myself, Prof. Ariel Katz and Prof. David Lametti, as he then was, is available here.

HPK


“Reclaiming Fair Use” by Aufderheide & Jaszi – My Treat During Fair Use/Fair Dealing Week



I took some time during fair use/fair dealing week to belatedly look at the second edition of “Reclaiming Fair Use” by Patricia Aufderheide and Peter Jaszi published last year by the University of Chicago Press. This is an update of the first edition published in 2011 by the same authors.

The book, by its nature, is primarily about the American landscape of fair use. However, it is an important book for Canadians.

Despite the significant scholarly credentials and accomplishments of the authors, the book is written in very plain language that bridges the gap between lawyers and laypersons. Both will find it useful and appealing. There are no footnotes – but lots of references, which are now, of course, easy to track down through the obvious sources on the internet.

The book examines the culture of fair use, and the development of the doctrine in the law, the courts and above all in the real world of education, films, etc. It includes a good list of various Codes of Best Practices and a specific Statement of Best Practices for documentary film makers, a subject dear to my heart having done a still useful White Paper for the Documentary Organization of Canada back in 2006.

The book is not a legal text, as such, though I have found it useful to confirm in clear, simple and authoritative terms certain contentious points, for example to diffuse the inaccurate statement that the fourth factor in American law concerning the effect on the market has priority over the other factors. See the interesting “kerfuffle” interchange on my blog involving  me, Ariel Katz, Bill Patry, Barry Sookman and Dan Glover from 2012.

The second edition of the book does have a brief reference to Canada. The authors credit David Vaver, Michael Geist, Ariel Katz, myself and Laura Murray for having “helped to persuade the courts there [Canada] – and particularly the Supreme Court – to apply fair dealing with an emphasis on interpretive openness and technological neutrality. This approach is justified in part by the fact the Canadian judges explicitly regard fair dealing as a users’ right.” This comment is very flattering. However, one hopes that the next edition may have more about Canada – perhaps a whole chapter?

This book along with that of  Murray and Trosow (2013) and collected papers in a 2013 book edited by Michael Geist available via open access here should be on the shelf of anyone in Canada who is concerned about fair dealing or fair use and the law, culture, politics and advocacy trends that are involved. Such readers would include:
·        Copyright librarians
·        University counsel
·        Copyright lawyers
·        Copyright professors
·        Policy analysts in government
·        Researchers in intuitions where copyright is important, including many government departments, agencies, and the Copyright Board
·        Members of the INDU Committee s. 92 review and their staff
The only other reliable books of which I am aware of interest to Canadians that are written in language that both lawyers and non-lawyers can appreciate are by David Vaver – but they are out of date on the topic of fair dealing and the 2012 legislation and “pentalogy” case law.

There are also numerous posted guidelines about fair dealing in Canada from various institutions. Some of these are more reliable than others. I am admittedly partial to the guidelines I helped to draft, namely those of the University of Toronto. Readers should be aware of any approach or material that seems too arbitrary or too simple.

HPK

Friday, February 22, 2019

Piracy v. Privacy – The Federal Court Significantly Restores the Balance in Canadian Mass Copyright Litigation by Insisting on “Best Available Evidence”

https://en.wikipedia.org/wiki/Evidence

Today’s ruling by the Federal Court of Canada in ME2 Productions, Inc. v. Doe, 2019 FC 214 is a reiteration and affirmation of the landmark ruling by Judge von Finckenstein in the first of these Canadian copyright “Doe” cases 14 years ago.   That BMG decision, which was upheld by the Federal Court of Appeal, made it clear that the Court will require substantial, admissible, reliable affidavit evidence that can be cross-examined upon. Today’s ruling notes that “…the key evidence that is found in the Arheidt Declaration is hearsay which cannot be subject to cross-examination since it is simply an exhibit to the affidavits. This is exactly the type of evidence which was rejected in BMG, which remains good law.”  In today’s ruling, Judge Pentney refers several times to the need for “the best available evidence.”

The Court in BMG was then and is now still rightly concerned that hearsay evidence creates the “risk that innocent persons might have their privacy invaded and be named as defendants where it is not warranted” and such evidence will not suffice if “no grounds are provided for accepting” it. I was proud to argue the BMG case, along with Alex Cameron, on behalf of CIPPIC. Shaw and Telus also put up a very good fight for their customers privacy then and did the heavy lifting on cross-examination. Bell and Rogers were at least somewhat supportive of their customers’ privacy. Videotron supported the record companies. Here’s a still useful balanced analysis of this case by Richard Naiberg, counsel for the record companies on appeal and me.

Teksavvy is to be commended for standing up for its customers’ privacy in this instance. Unless today’s ruling is overturned on appeal, which seems unlikely, the inevitable question will be how this ruling might affect other similar copyright mass litigation “Doe” cases if they rely on similar evidence to obtain the Norwich disclosure orders.  In the battle of “piracy” v. “privacy”, it’s good that the balance in Canada has been significantly restored.

HPK

Tuesday, February 19, 2019

Access Copyright Post Secondary Tariffs - 2011-2013 & to 2014-2017 - Coming Soon to a Campus Near You?



On February 6, 2019 the Copyright Board issued the following Notice:

File / Dossier: Access Copyright    Post‐Secondary Educational Institutions (2011‐2013 and 2014‐2017) 
Access Copyright    Établissements d'enseignement postsecondaires (2011‐2013 et
2014‐2017)
February 6, 2019
[CB‐CDA 2019‐007]
NOTICE OF THE BOARD
The Board wishes to consult Parties on issues of tariff wording before proceeding to certification. 
More specifically, the Board seeks comments on the two attached draft tariffs, for the periods of 2011‐2014 and 2015‐2017. The text of these tariffs is based, respectively, on the 2012 AUCC Model Licence (Exhibit AC‐2V), and the University Three‐Year Premium Licence (Exhibit AC‐23N). 
Portions of the tariffs in respect of rates and interest factors have not been included in the attached versions. 
Parties shall comment on the feasibility and clarity of the terms of the tariff. 
Comments shall be filed by no later than Thursday, February 28, 2019.

The Board has kindly provided me with a copy of the two “draft tariffs” referred to in the Notice. The draft 2011-2014 tariff can be seen here. The draft 2015-2017 tariff can be seen here.

The only two “parties” still on the record at this point are Access Copyright and one Mr. Sean Maguire, a self-represented student who has objected to reprographic and private copying tariffs over the years. All of the parties (most notably AUCC – now Universities Canada and ACCC - now Colleges and Institutes Canada) that might have brought adequate resources and expertise to the table to make this an adequately contested hearing have long since withdrawn for whatever reasons. So, with all due respect to Mr. Maguire, this is effectively a default proceeding with potentially complex ramifications flowing from this fact, as I have discussed.

The timing is interesting. The Board’s Notice suggests that it is ready to issue a decision soon. It should be noted that this proceeding began on June 12, 2010 – almost nine years ago – when the proposed tariff was published in the Canada Gazette.

This notice comes just about a month ahead of the March 5, 2019 Federal Court of Appeal hearing of the appeal from the controversial 2017 ruling in Access Copyright v. York University case, in which the Federal Court found against York on virtually all aspects of fair dealing and York’s curiously limited argument that an interim tariff cannot be mandatory. Ariel Katz has brilliantly and frankly looked at “Why did York choose to rely only on the narrow issue of the Interim Tariff and failed to make any submission on whether final tariffs would be mandatory?” 

The “mandatory tariff” issue could – and indeed should in my view – be the main issue in this appeal. More about that, an issue, with which I’ve been very involved, in due course.

HPK

Tuesday, February 12, 2019

Blacklock’s, Spam, CRTC, and ATIP






Readers will be aware that I have been following and commenting on Blacklock’s “litany of litigation”, as I have called it, against the Federal Government and several of its agencies.

An alert reader has advised that Blacklock’s has apparently had some interaction with the CRTC regarding Canada’s anti-spam legislation. This led to an “undertaking” by Blacklock’s.  It’s brief, so I’ll quote it in full:
Undertaking: 1395804 Ontario Ltd (dba. Blacklock’s Reporter)
File No.: 9094-2018-00502
Date of undertaking (signed by all the parties): 28 September 2018
Under section 21 of the Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, C. 23 (CASL, or the Act)
Person entering into an undertaking
1395804 Ontario Limited doing business as Blacklock’s Reporter (Blacklock’s Reporter).
Acts and omissions covered by the undertaking and provisions at issue
Blacklock’s Reporter has voluntarily entered into an undertaking with a designated person of the Commission (Commission staff) concerning alleged violations of paragraphs 6(1)(a), 6(1)(b), 6(2)(b), 6(2)(c), subsection 11(1) of the Act, as well as non-compliance with paragraph 2(1)(d), subsection 2(2), and section 3 of the Electronic Commerce Protection Regulations (CRTC) SOR/2012-36 (CRTC Regulations).
Following an investigation, Commission staff alleged that commercial electronic messages (CEMs) sent by Blacklock’s Reporter between 22 December 2017 and 21 March 2018 to market and promote its subscription-based news service were sent without the recipients’ consent. In addition, Commission staff alleged that CEMs sent between 16 August 2017 and 21 March 2018 did not contain appropriate sender identification and a readily-performed unsubscribe mechanism as required by sections 6 and 11 of the Act.
Summary of conditions
Blacklock’s Reporter has agreed to put in place a compliance program to ensure that all parties sending commercial electronic messages on its behalf comply with the Act and Regulations.
The compliance program includes the review of current compliance practices, the development, and implementation of corporate policies and procedures to ensure compliance with the Act, the tracking of commercial electronic message complaints and subsequent resolution, as well as audit measures for reporting the program’s implementation to Commission staff.
Commission staff determined that there would be no incremental benefit to promote compliance by imposing a monetary payment on Blacklock’s Reporter. Instead, given the size and scope of the business, Commission staff have encouraged Blacklock’s Reporter to invest funds in developing a compliance program, including technical tools and staff training that will ensure full compliance with section 6 of CASL.
This undertaking fully settles all alleged or potential responsibility of Blacklock’s Reporter regarding all commercial electronic messages sent by the company during the period between 16 August 2017 and the date of this undertaking.
Date modified: 
2018-09-28

Ironically, given Blacklock’s reliance on the ATIP mechanism, an attempt to obtain information about spam complaints against Blacklock’s led to the following result:

A-2018-00013

All spam complaints against 1395804 Ontario Ltd between January 1, 2013 and June 14, 2018.
All exempted
0
(highlight added)

This means that no documents were provided to whoever submitted this ATIP request.

HPK

Monday, February 04, 2019

Blacklock’s Got Much of What it Wished For – For Now: Will This Be About “Be Careful What You Wish For”?


I recently blogged about Blacklock’s “mega motionof December 12, 2018 concerning its “litany of litigation”.

Blacklock’s was seeking to:
·       Amend old pleadings to add a new cause of action involving circumvention of technical protection measures. This comes more than two years after Justice Barnes ruled during the trial of the first case in 2016 that circumvention of TPMs has not been pleaded and allegations and arguments based on this would not be heard by the Court. Frankly, even if circumvention had been properly pleaded at the original trial, it’s very likely, as explained below, that it would have failed on the facts before the Court and any correct interpretation of the law;
·       Convert these “simplified actions”, which had an upward limit of $50,000 in terms of liability, into normal actions with an enormous theoretical damage potential based, inter alia, upon the assertion that “Statutory damages for circumvention of a TPM may include statutory damages for the library of works behind the TPM. The Locked Articles subject to potential statutory damages in each of the Blacklock's cases is in the 1000's.” (footnote omitted); and,
·       To seek punitive damages based upon extraordinarily unusual and even “personal allegations” and “personal attacks” (according to the Attorney General of Canada) on the Government’s lead senior counsel up to now, Alexandre Kaufman, which might have resulted in his removal from the file.

I attended most of the hearing on December 12, 2018 and, after setting out some possible outcomes, wrote that:

So, to reiterate from my previous blog, “Will this turn out for Blacklock’s to be an example of the old adage about “be careful what you wish for”?”

That seems to be what has transpired. Here is Case Management Judge (CMJ) Milczynski’s Order dated January 29, 2019.  The bottom line is that Blacklock’s will be allowed to make some of the amendments it asked for, but some may not get very far if Blacklock’s proceeds. The Court explicitly indicates that summary judgment may be available at least on the limitation period issues in several of the files.

I have written at some length about how Blacklock’s faces a very uphill battle on the issue of circumvention of technical protection measures and trying to establish liability leading to a pot of gold at the end of the rainbow based upon statutory damage for each of the hundreds or thousands of individual articles on its website.

On the most dramatic issue in the motion concerning which Blacklock’s launched an extremely unusual professional and even allegedly “personal” attack on former Attorney General of Canada (“AGC”) lawyer Alexandre Kaufman and sought to parlay these attacks into a punitive damages award, I indicated in my January 16, 2019 blog:

Blacklock’s somehow is trying to parlay these attacks into a punitive damages award. This attack, of course, could potentially backfire badly – not only against Blacklock’s but potentially even against Blacklock’s new counsel personally. The Justice lawyers gave clear notice that they may seek such a costs award.  The matter of costs will presumably be addressed after the Case Management Judge rules on Blacklock’s mega motion.

Blacklock’s was shot down unequivocally on this issue by the CMJ:

None of what transpired gives rise even to the semblance of misconduct that would warrant punitive damages, or to any cause of action. I am satisfied that it is plain and obvious and without any doubt that this claim would necessarily fail. Those amendments shall not be allowed.

It will be very interesting to see what the cost consequences of this part of the ruling may be, considering that these allegations concerning Mr. (now Master)  Kaufman consumed a major portion of the nearly 3,000 page mega motion record and much the oral submissions to the Court, even following the questioning by the Court at the outset as to whether Blacklock’s new counsel really intended to proceed on this issue.  Coincidentally just days earlier, Alexandre Kaufman had been appointed as a Master of the Superior Court of Ontario. Blacklock’s is apparently still somehow fixated on Mr. (now Master) Kaufman, as this recent February 3, 2019 tweet by Ms. Holly Doan suggests:


The bottom line is that Blacklock’s has gotten its wish to pursue some circumvention cases. It still has major potential obstacles to overcome to get to trial, including the possibility of summary judgements on the limitation period issues in several files.

It remains to be seen whether Blacklock’s should be commended or consoled for its tenacity. Time will surely tell.

HPK

Thursday, January 17, 2019

My Brief to the INDU Committee re Copyright Revision & S.92 Review


HOWARD P. KNOPF
HOUSE OF COMMONS INDU COMMITTEE
S. 92 Statutory Review of the Copyright Act Review
December 10, 2018

1.     Introduction


The following is based upon my presentation[1] on November 28, 2018 to the House of Commons INDU Committee for its s. 92 Statutory Review of the Copyright Act Review. I may take the liberty of seeking to provide further detail, modification, or clarification in the next weeks or months on some of the more technical aspects of this brief.

2.     We need to clarify that copyright board tariffs are not mandatory for users


The elephant in the room is the issue of whether Copyright Board tariffs are mandatory. They are not. I successfully argued that case in the Supreme Court of Canada (“SCC”) three years ago[2] – but most of the copyright establishment is in denial or actively resisting. A tariff that sets the maximum for a train ticket from Ottawa to Toronto is fine – and we used to have such tariffs before deregulation. But travellers were always free to take the plane, bus, their own car, a limousine, their bicycle or use any other legal and likely unregulated means.

There is intense litigation ongoing between Access Copyright and York University – now in the appellate stage and other litigation in the Federal Court involving school boards. Unfortunately, York failed in the trial court to address the issue of whether final approved tariffs are mandatory.[3] Hopefully, the FCA and maybe the SCC if necessary will get this right in due course. But we can’t be sure, and the other side is lobbying you heavily on this issue, including with such devious and disingenuous suggestions as imposing a statutory minimum damages regime of 3 – 10 the tariff amount on the  totally inappropriate basis of symmetry with the SOCAN regime – which is the way it is for good reasons that go back more than 80 years but would be totally inappropriate for tariffs outside the performing rights regime.

I urge you to codify and clarify what the SCC has said in 2015, consistently in turn with previous SCC and other jurisprudence going back decades – that Copyright Board tariffs are mandatory only for collectives but optional for users, who remain free to choose how they can best legally clear their copyright needs.

My suggestion is that Parliament use the well know legislative drafting technique of stating “for greater certainty”. This phrase already occurs 14 times in the Copyright Act, including for example s. 13(7). which states:

(7) For greater certainty, it is deemed always
to have been the law that a grant of an exclusive
licence in a copyright constitutes the grant
of an interest in the copyright by licence.
R.S., 1985, c. C-42, s. 13; 1997, c. 24, s. 10; 2012, c. 20, s. 7.
(highlight added)

I am suggesting that Parliament should now declare that:

For greater certainty, it is deemed always to have been the law that when the Copyright Board approves or certifies a tariff, whether interim or final, the collective to which that tariff applies cannot demand higher royalties or demand more onerous related terms and conditions than those approved by the Board, but the duty to pay such royalties and comply with their related terms and condition applies only to a user who has paid or offered to pay the royalties under such a tariff. A user who has not offered to pay such royalties may nonetheless be liable for copyright infringement.
(highlight added)


      3. We need to keep current fair dealing purposes in s. 29 and include the words “such as”

The SCC had already included the concept of education in fair dealing before the 2012 amendment kicked in. For 42 years, The USA has allowed for fair use “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use)”.  (emphasis and highlight added). I ask you to ignore siren calls urging you to delete the word “education” from s. 29 and urge you to add the two little words “such as”. This works in the USA and will work here too.

4.     We Need to Ensure that fair dealing rights cannot be overridden by contract


The SCC has said in Royal Trust v. Potash, [1986] 2 SCR 351, 1986 CanLII 34 (SCC)) that consumers cannot lose their statutory rights by contracting out or waiver in the case of, for example, paying off a mortgage after 5 years. We need to clarify and codify a similar principle that fair dealing rights and other important exceptions cannot be lost by contracting out or by waiver.
      5. We need to explicitly make technical protection measures (“TPM”) provisions subject to fair dealing

We need to clarify “for greater certainty” that users’ fair dealing rights apply to circumvention of technical protection measures – at least for fair dealing purposes in s. 29 and for many if not all of other exceptions provided in the legislation as appropriate. This could be done by inserting a new section 41.1(5) (based upon current numbering) along the following lines:
For greater certainty, it is deemed always to have been the law that s. 41.1(1) does not apply to any acts permitted by sections 29, 29.1 and 29.2.[4]
      6. We need mitigation for the nation

We need to mitigate the damage done by copyright term extension under both the Harper government (as deeply buried in an omnibus budget bill) and by this Government in the USMCA. These concessions could cost Canada hundreds of millions a year – and must be given now to the EU and all our other WTO TRIPs treaty partners because of the most favoured nation and national treatment principles to which Canada is bound. One small but useful mitigation measure might be the imposition of renewal requirements and fees for those extra years of protection that are NOT required by the Berne Convention.[5]

      7. We need to look carefully at enforcement issues

I know you are under immense pressure from some very well-funded and powerful lobbyists and lawyers on website blocking. I am not convinced that we need any new legislation on this issue, but I am looking into it carefully and may perhaps write about this issue further in another forum, and, if so, will provide you a copy of whatever I may publish. In the meantime, you should be looking at the existing (not the controversial proposed) provisions in s. 115A of the Australian Copyright Act and UK case law.
The existing provision in s. 115A of the Australian Copyright Act has been considered by the Federal Court of Australia in Television Broadcasts Limited v Telstra Corporation Limited [2018] FCA 1434[6].
The Committee may also wish to look at recent UK jurisprudence concerning website blocking, which is based upon s. 97A of the Copyright, Designs and Patents Act 1988 of the UK.[7]
The Australian and UK jurisprudence are important reference points because they feature the involvement of superior court common law judges using statutes that ultimately derive from the same legislative DNA as Canada’s Copyright Act, namely the UK Copyright Act of 1911. This jurisprudence shows evident concern for the rule of law and natural justice, which was plainly lacking in FairPlay’s proposal to the CRTC that was rightly rejected on jurisdictional grounds. The injunctions are limited in scope and duration. They show concern for such issues as they “primary purpose” of the website(s) in question.
It is far from clear that Canada needs special legislation to address website blocking. The controversial decision of the SCC in Google Inc. v. Equustek Solutions Inc., [2017] 1 SCR 824, 2017 SCC 34  if anything already goes further than necessary to protect IP owners, including copyright owners and confirms the jurisdiction of superior courts to issue worldwide deindexing orders. This case was launched by a presumably relatively small business. The litigants pursuing worldwide website blocking orders and the backers of FairPlay are in many cases very large vertically integrated corporations that can well afford to litigate in the normal manner with full regard for due process and the rule of law. Sweeping injunctions – especially those with an extraterritorial reach – are very exceptional and must not be dispensed routinely and certainly never by an administrative tribunal (including the Copyright Board) or anyone other than a superior court judge.
Parliament may need to somehow address the issue of mass litigation against thousands of ordinary Canadians who happen to “associated with an IP address that is the subject of a notice under s. 41.26(1)(a)” and who are alleged to have infringed a movie that could be streamed or downloaded for a few dollars.[8] This litigation is not “akin to a parking ticket”.[9] There are systematic efforts to extract “settlements” of thousands of dollars from terrified internet account holders who may never have heard of BitTorrent until they get that dreaded registered mail letter. These efforts may succeed in many cases because access to justice is very difficult in these circumstances. If the government would only do its job on the notice and notice regulations, that might be a good start.

8.     We need to repeal the blank media levy scheme


We need to get rid of the zombie-like levy scheme Part VIII of the Copyright Act and stop listening to the big three multinational record companies who continually conjure new kinds of taxes on digital devices, ISPs, internet users, the cloud, and whatever else looks lucrative. Even the USA doesn’t entertain such fantasies.  

9.     We need to stop this five years review ritual


We have had two major and two medium scale revisions to Canadian law in the last 100 years a few more focused ones in between. There is no need for periodic copyright policy review. It is lucrative for lobbyists and lawyers but is a waste of time – including Parliament’s time. Reacting reflexively and prematurely to new technology is usually very dangerous. If we had listened to the whining of the film industry in the early 80’s, the VCR would have become illegal and Hollywood as we know it might have committed economic suicide. Who of us of a certain age can forget the words of Jack Valenti, the famous Hollywood lobbyist, who told Congress “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”
Particular issues can be addressed as needed, which is the way most other countries cope with copyright.
***



[1] In my own capacity and not on behalf of any client interest.
[2] Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57.  See paras. 101 – 113. The factum presented to the SCC as prepared by myself, Prof. Ariel Katz and Prof. David Lametti, as he then was, is available here.
[4] The Committee may wish to recommend inclusion in the suggested provision of some or all of the additional “users’ rights” provisions included in ss. 29.21 to 30.04 of the current legislation.
[5] Gangjee, Dev S., Copyright Formalities: A Return to Registration? (July 30, 2016). In R Giblin and K Weatherall (eds), What if We Could Reimagine Copyright? (ANU Press, 2017) 213.. Available at SSRN: https://ssrn.com/abstract=2923897
[8] See    Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38 paras. 35, 41.
[9] See  also Howard Knopf, Voltage Pictures and the Massive Mass Litigation Mess in Canada, October 19, 2018 blog, http://excesscopyright.blogspot.com/2018/10/voltage-pictures-and-mass-litigation.html