Sunday, April 12, 2015

Canada, Fair Dealing, and #FordhamIP 23rd Annual Conference at Cambridge University

I'm very proud of these tweets from the 23rd annual  #FordhamIP conference held this year once again at Cambridge University.

I do my best each year to tell it like it is regarding Canadian copyright law at this the leading international IP conference by far....which it has been for 23 years and going strong....

The news from Canada has not always been good but overall we have much to be proud of. Right now, the USA and the EU would be wise to look very carefully at Canada's statute and jurisprudence on fair dealing. I've done my little bit to contribute to this, along with Ariel Katz - as you can see reflected in the Province of Alberta decision from Canada's Supreme Court

It's surprising that they are so unaware - and sad for them that they do not realize the potential that they could achieve if they simply read our statute and our Supreme Court of Canada cases.

And they should ignore Canadian lobbyists who have tried unconvincingly and without success to discredit these achievements on irrelevant and inapplicable grounds. 

Of course, if Canada is offside internationally, then we would be in very good company with the USA and its Section 107 of the USA Copyright Act, which has never been challenged and almost certainly never will be - and if it is, will almost certainly emerge unscathed. 

This is very important for #TPP and #ISDS.


Thursday, April 09, 2015

Canada's Best Kept Fair Dealing Secrets Revealed at #FordhamIP Conference

I got in a good shot from the floor about Canada's excellent statutory and judicially considered views of fair dealing - of which some very important people in USA, UK and EU are sadly and surprisingly unaware.

I am proud to be a part of this picture, along with Ariel Katz in the Province of Alberta case in the #SCC in 2012.

Canada has the best of  both possible worlds in many ways between the USA and  UK...

Pity for them both that neither of them quite get it!

We'll keep out secret for ourselves!

Hopefully, we won't abandon this advantage in the #TPP due to misguided, inaccurate and misleading references to the three-step test, etc. coming from Canadian and American sources ...


Wednesday, April 08, 2015

Canadian Copyright Update - 23rd Fordham Conference 2015 at Cambridge University

This year, the #FordhamIP conference was held at Cambridge University, a magical place. This was the 23rd Fordham Conference and the second at Cambridge.

Here's my presentation entitled Canadian Copyright Update, in which I dealt with:

Canada’s Copyright Board at the Cross Roads
A pending Supreme Court of Canada case re:
 technological neutrality
whether tariffs can be “mandatory”
A recent decision from the Supreme Court of Canada on what constitutes “substantial similarity” and the role of expert evidence in copyright infringement cases
The Status of Copyright “Trolling” in Canada – the Aronovitch decision re costs of taking the position to take “no position”
Notice and notice, Bill S-4 & Privacy
Bill C-8: Anti-counterfeiting legislation

The moderator of this panel was Nathalie Theberge from Canadian Heritage and the  Panelist (commentator) was Justice Roger Hughes from Canada’s Federal Court.

There was a lot of interest in what is happening in Canada.


Friday, April 03, 2015

Voltage, TekSavvy and The Cost of Taking a Position to Take “No Position” - "Nice Work If You Can Get It"?

The long awaited decision by Prothonotary Roza Aronovitch of the Federal Court regarding TekSavvy’s claim to entitlement to $346,480.68  “on a full indemnity basis to make it whole for the costs it says it incurred as a result of Voltage’s motion” has now been released. Spoiler alert – TekSavvy got only $21,557.50 – about 6% of what it asked for overall. And of that, only $4,500 was for legal costs, which were sought in the amount of $178,820.98.  That’s 2.5% of what was asked for in legal costs. Further spoiler alert: both Voltage and TekSavvy are appealing Prothonotary Aronovitch's ruling. Here’s the docket and here’s the notice of motion for the TekSavvy appeal dated March 27, 2015. I’ve been waiting on this posting partly because I didn’t want to say anything prior to the appeal deadline. And since it is now being appealed by both sides and the appeal has not yet been heard, I will say less about this case at this time than I might otherwise. In any event, I’ve had lots to say about this case in the past.  However, I should at least bring readers up to date.

It will be recalled that TekSavvy took the position that it “took no position” on the Voltage disclosure motion. This appears to have been a key factor in the Federal Court’s refusal to reward TekSavvy and its counsel with almost $180,000 in legal fees.

Ironically, if TekSavvy had actually opposed Voltage’s motion, it may well have been in a much better position to successfully seek costs.  Prothonotary Aronovitch cites Justice von Finckenstein’s ruling on costs in a similar case where two the ISPs actively opposed the disclosure motion:
[44] Justice von Finckenstein goes on as follows at para 35:
[35] Clearly the process that is sought to be imposed on the ISPs
would be costly and would divert their resources from other tasks.
Given that the ISPs are in no way involved in any alleged
infringement, they would need to be reimbursed for their
reasonable costs for furnishing the names of account holders, as
well as the legal costs of responding to this motion.
[Emphasis added]
[45] In that case, the Court ultimately denied the motion but awarded the costs of the motionto the third party ISPs who had opposed it.
(emphasis added)
I must respectfully and explicitly disagree, which I rarely do, with Prof. Michael Geist; however, I must do so about this case. He has been very supportive of TekSavvy throughout. He had a blog the other day entitled “Defending Privacy Doesn’t Pay”.  In my view, it would be more accurate to say that defending privacy can and does pay if done vigorously and out of principle – both in terms of legal costs and subscriber good will. Moreover, full indemnity legal costs are very rarely recovered in Canadian litigation. Responsible ISPs should expect to incur some non-recoverable legal costs for defending their customers’ privacy as part of their “cost of doing business”. Indeed, speaking generally and not necessarily about this case, it’s arguable that ISPs have a positive duty to actually oppose ill-founded motions for disclosure and that failing to do so could expose them to liability - but that’s another topic for another day.
There is also the explicit suggestion in Prothonotary Aronovitch ruling that TekSavvy should have put its cards on the table regarding TekSavvy’s costs much earlier:
[73] Whatever the reason, the parties’ failure to address the costs of the motion is an oversight that cannot now be remedied by subsuming them within the legal costs of abiding by the Order. This applies equally to the legal costs claimed on account of TekSavvy’s attendances at the motion to intervene and the various motions to adjourn. In that connection, counsel for TekSavvy conceded at the hearing of this motion that the costs of appearing before Justice Mandamin for a further adjournment could not be claimed as Justice Mandamin explicitly determined that no costs should be awarded in respect of the adjournment.

Prothonotary Aronovitch was rather obviously displeased with both sides, as her conclusion on costs of the costs motion reveals:
[129] …It may be said that success is divided and that costs should therefore not be awarded. Rather, no costs of the assessment will be awarded because neither party should be rewarded for its conduct: TekSavvy, without justification, has greatly exaggerated its claim, while Voltage has unreasonably sought to trivialize it based on unreliable and largely irrelevant evidence.

TekSavvy’s position of taking “no position” effectively meant that it did virtually nothing to protect its subscribers’ privacy other than to play for time to send out an arguably unnecessary notice to its potentially affected customers and attend for adjournments in order to let a law school clinic, CIPPIC, seek leave to and eventually intervene in the case. TekSavvy may not be Bell or Rogers but it is a very successful commercial entity with about $5- $10 million a month in estimated cash flow.  As to the notices, Prothonotary Aronovitch commented:
[64] While the Court has the discretion to order a party to give notice, the Rules do not require TekSavvy to have provided notice of the motion to its affected clients. TekSavvy acted voluntarily and on its own initiative. Whether it acted out of altruism or self-interest is irrelevant.

I have been insistent, persistent and consistent in the past in challenging TekSavvy’s “no position” position.  Indeed, it may have been arguable that the evidence in this case was no better and perhaps even worse than the evidence in the BMG case  (in which I was counsel for CIPPIC) over a decade ago, where Shaw, Telus and CIPPIC were successful in stopping the plaintiff American record companies in in their tracks because their evidence was essentially all hearsay and unreliable. The plaintiffs then were unable or unwilling to provide reliable non-hearsay evidence sufficient to justify piercing the privacy rights of the ISPs subscribers. The roadmap in the current case was perfectly clear based on the BMG case. Indeed, the landmark ruling of Justice Von Finckenstein was upheld in all essential respects by the Federal Court of Appeal. Here’s a balanced discussion of the rulings.

In the end, TekSavvy did nothing in the current case to challenge the adequacy of Voltage’s arguably inadequate evidence and to stop the disclosure motion from proceeding. It did not cross-examine on Voltage’s affidavit material in connection with the actual disclosure motion. Instead, TekSavvy chose to vigorously cross-examine to recover its alleged costs of $346,480.68 – for legal and other technical costs resulting from having taken no position and complying with the order.

Defending privacy is not remotely equivalent to supporting piracy. It is an ISP’s job under PIPEDA to ensure that disclosure in situations such as this happens only pursuant to a court order. As I said earlier, if that order is not warranted, for example because the evidence may be clearly inadequate, it is arguably the ISPs job to oppose the motion. Anyway, it can’t be “CIPPIC to the rescue” every time there’s a mass litigation attempt and it’s absurd to expect one or more individual subscribers to shoulder this responsibility of fighting for the privacy of themselves and thousands of others. They pay good money to their ISPs to do that, and ISPs generally do very well indeed finically in Canada.

CIPPIC ended up doing a good job on the policy side about the negative aspects of trolling and speculative invoicing. However, although it did mention the “hearsay” issue in its Memorandum, it is unclear to what extent if any “hearsay” was raised by CIPPIC during the oral hearing before Prothonotary Aalto. It is not even mentioned by CIPPIC, at least according to the unofficial” transcript of the oral argument on CIPPIC’s website. However, I have no way of knowing how complete or accurate that transcript may be and there are several references in it to the microphone being off for various periods of time. Ironically, hearsay was briefly mentioned by Voltage’s lawyer according to this unofficial transcript.

In any event, Prothonotary Aalto’s learned and lengthy decision following CIPPIC’s intervention and TekSavvy’s “no position” appearance does not mention the word “hearsay”. The rule against hearsay evidence (i.e. where the witness has personal knowledge and relies on statements from others) might have been Voltage’s potential “Achilles Heel”, but nobody seemed interested in going for that kind of victory. Arguably, if a victory is just, it should be taken where it can be found.

TekSavvy clearly went to great lengths, including extensive cross-examination, to pursue its alleged entitlement to “reasonable costs” in the amount of $346,480.68. Arguably, for much less expense, it might have instead stopped the arguably deficient and hearsay-based Voltage application from going forward at all. And as the Court pointed out, as noted above, TekSavvy would have been in a better position to recover costs.

It’s very difficult to predict what will happen now. Voltage may have already invested a lot of money on this case, unless there is a contingency arrangement with its consultants and/or its counsel – which would hardly be surprising. The small 6% fractional recovery by TekSavvy of its claim for costs is no doubt a victory for Voltage, but the costs of proceeding any further may still be very high. This case is still under Court supervision – and the Court has strongly indicated in the original decision from Prothonotary Aalto that it won’t allow the names and addresses of TekSavvy’s customers to be used simply as a database for uncontrolled speculative invoicing. Indeed, the Court must approve any proposed demand letter to be sent by Voltage to subscribers and is clearly contemplating that any actions commenced must be “separate” actions to be case managed by the Court. But will TekSavvy and/or CIPPIC step up to the plate to follow through on the possibly complicated and time-consuming future steps? If not, are TekSavvy’s customers going to be on their own and out there all alone?

According to an article published on April 2, 2015, it seems that Voltage’s lawyer now has a theory that he can sue for actual damages that will be greater than the statutory damages limit of $5,000 in cases of non-commercial infringement. The article is not entirely clear on what this theory is based but this is what it says:
Zibarras explained that plaintiffs in piracy cases can opt for statutory damages or actual damages. The former are awarded automatically once it’s been proven in court the defendant actually did download the movie. The latter, actual damages, take into account how much money the production company may have lost due to the downloading and subsequent distribution.

However, assuming that Mr. Zibarras’ theory is being stated accurately, that is just not the way things work. Statutory damages for non-commercial infringement (if proven) could be as much as $5,000 but also as little as $100. It’s up to the Judge. True, a plaintiff need not elect statutory damages and can go for “actual damages”. However, it’s a real stretch and “extremely far-fetched”, as I was quoted in the article, to suggest that a typical “ non-commercial” Bittorent user could be liable for any losses supposedly resulting from subsequent distribution via a Bittorent "swarm" of hosts “that upload to/download from each other simultaneously”, if that is indeed Voltage’s current theory.

To use such theory to ratchet up “actual damages” for downloading one movie (which might have cost $10 or so from iTunes or Amazon and from which Voltage would receive even less) to actual damages of more than $5,000 is “extremely far-fetched” indeed from every factual and legal standpoint, and that’s an understatement. Clearly, there would be immense if not insurmountable difficulty in proving how many,  if any, actual “lost sales” were the results of a particular customer’s individual infringement (if proven) by downloading and what damages, if any can be proven. Clearly too, a typical downloader has no “profits” for which to account.

If I understand this theory correctly, it is rather reminiscent of and perhaps even more “far-fetched” than Catherine Leuthold’s extremely longshot and so far very unsuccessful attempt to parlay a $19,200 claim into a $22,000,000 claim by trying to hold the CBC liable for separate acts of infringements for transmissions from each of the CBC’s 800 or so participating affiliated stations and Broadcasting Distribution Undertakings [BDUs].  An application for leave to appal her case is pending in the  Supreme Court of Canada and the result is expected shortly. It would be surprising if leave to appeal were to be granted.

It will also be very interesting indeed to see what happens with respect to Voltage’s presumptive obligation as a non-resident of Canada to post “security for costs” pursuant to the Federal Court Rules, and who – if anyone – will raise that issue and when. If Voltage gets around to actually suing anyone and doing so in separate lawsuits,  which is the Court’s clear expectation, that may be the first thing that knowledgeable counsel would address. And in this case, the security for costs motion may prove to be anything but routine.

If Voltage’s strategy is to avoid actual litigation, it may find itself in some trouble with the Court – because Prothonotary Aalto at para. 40 of his reasons  and the Federal Court of Appeal before him have made it very clear that the essential “bona fide” threshold requirement for disclosure means “that they really do intend to bring an action for infringement of copyright based upon the information they obtain”.

In one sense at least, the fact that the hearsay issue was not even mentioned in the proceedings to date is good news. This means that, in the future, another ISP may well challenge a disclosure motion the way that Shaw and Telus did in BMG, if the evidence is based upon hearsay or is otherwise inadequate. Indeed, another Canadian indie ISP, Distributel recently stood up to a plaintiff successfully, as I have pointed out, and stopped the disclosure motion even before it went forward.

So, we still have an uncertain future with respect to trolling and speculative invoicing in Canada. But one thing is certain – which is that door is now appears to be a little bit more open than it was before TekSavvy took the position that it would take “no position”.

And we also now have a potentially “perfect storm” about to hit Canada in the form of Bill S-4, which if enacted, could effectively take away the need for court approval of a disclosure motion. I wrote about this at length almost a year ago, and the timing and other coincidences with the Voltage case, TekSavvy’s “no position” response to it, and the coming into force, without regulations, of the problematic notice and notice regime. It’s a perfect storm of immense magnitude for those who care about privacy. All of this may also be a perfectly appealing opportunity for those entities who wish to engage in speculative invoicing and trolling, and lawyers who may wish to engage in pursuing this type of activity. And it may not even be too cynical a stretch to think that some ISPs in this new regime could be tempted to monetize the private information they have concerning their customers’ potentially infringing activities, along with their names and contact information – all without the bother of worrying about a court order.

But in the meantime and unless there’s a successful appeal by TekSavvy’s concerning its alleged entitlement to full indemnity costs, including legal fees, for a total of $346,480.68 for "for the costs it says it incurred as a result of Voltage’s motion" and for taking “no position” on the motion, TekSavvy’s “no position” position  would have been  Nice work if you can get itHowever, up until now TekSavvy didn’t get it and about 2,000 or so of its subscribers could soon be getting into a lot of trouble by being thrown into an uncertain but almost certainly unsettling settlement demand process.


Tuesday, March 31, 2015

Video of CBC v SODRAC oral arguments in Supreme Court of Canada now Available

The video of the oral arguments in the recent Supreme Court of Canada hearing in CBC v. SODRAC is now finally available here

My submission re the "mandatory tariff" theory on behalf of the McGill Centre for Intellectual Property Policy and Ariel Katz starts at at ~ the 152.00 mark.

Here are the factums.

I'm not sure why this was not webcast live on March 16, 2015 when it was heard.  Apparently, some underlying material was designated as "confidential" by the Copyright Board, which happens all too frequently in Board cases - notwithstanding the fundamental principle of open courts in Canada. In any event, we now have the video.


Monday, March 30, 2015

Some Comparative Observations & Stats on the Copyright Board, Selected Canadian Tribunals & the Supreme Court of Canada

Some lobbyists and interested members of the copyright bar have been actively endorsing the Copyright Board’s longstanding campaign for more resources to supposedly solve the extraordinary delay problems at the Board. Here’s another very recent effusive example. There is a persistent but unexplained expectation that more resources will somehow speed up the frequently four year delay before a hearing even takes place and the now seemingly new normal delay of two years or more after the hearing for a decision to be rendered.  Assuming that members of the Copyright Board have expertise in their subject matter, and that they are actively engaged in writing their decisions, it is hard to see how more resources alone will have any positive effect in solving the delay problem. Federal Court judges routinely issue numerous – even dozens – of substantive and significant decisions every year in six months or usually much less time after hearing with no more “resources” other than one clerk just barely out of law school. Many of these cases are far more complex both factually and legally and sometimes in terms of public law importance than most at the Copyright Board. Even the less complex ones – for example routine immigration cases – are very important to the parties involved and require great care and judicial consideration.

The Canadian Judicial Council has recently stated that it should never take more than six months for a judge to render a decision, except in the most complex of cases. Indeed, the CJC said that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances.” It is difficult to find any examples of cases at the Board that would warrant an exception to this benchmark.

Ironically, even after these uniquely lengthy delays, the Board’s decisions in turn are regularly challenged in the Courts and sometimes dramatically reversed. Moreover, in two recent instances and after long delays, the Board has even felt compelled itself to issue quick “mea culpa” corrections, which have in in turn led to even more complications.

In this light, consider the following:
  • There is an old adage attributed to Benjamin Franklin that “if you want something done, ask a busy person”.
  • Canada’s Copyright Board is already by far the largest specialized copyright tribunal of its kind anywhere in the world.
  • The Copyright Board process involves extensive use of an onerous interrogatory process that yields relatively little useful evidence at a hearing, but consumes enormous amounts of time (and money for lawyers) and has on several occasions driven away well-intentioned objectors.
  • The interrogatory problem is exacerbated because the Copyright Board process never requires the tariff applicant to put forward the facts and legal arguments on which it intends to rely at the outset – which is contrary to virtually any other tribunal or court process that I have ever heard of. The result is that some tariff applicants simply go fishing in the interrogatory process – often in a drift net fashion – and thereby sometimes simply drive their opponents away. Whether this result is intentional and strategic doesn’t really matter. It happens because the Board lets it happen and some objectors’ counsel have arguably not taken all available steps to curtail this excess.
  • The Copyright Board hears again and again from the same perennial “experts” who sometimes have little if any independence from those who ultimately pay their bills and whose “evidence” would almost certainly never be allowed in a normal court, especially  in view of recent jurisprudence in the IP context from the Supreme Court of Canada. 
  • Even if these “experts” were sufficiently “independent”, it is highly questionable in many cases whether their testimony is even really “necessary”. The Supreme Court has made it clear that if the “expert” evidence is not “necessary”, it should not be admitted. The Board members themselves are assumed to have some expertise in copyright and economic regulation and the Supreme Court has said quite clearly that experts are both unnecessary and undesirable when the “common sense” of the decision maker should suffice.
  • There are seldom any complex legal issues involved in Copyright Board hearings, and when they do arise, the Board is often reversed by the Federal Court of Appeal (at least once in a “brusque” manner according to retired Chairman Vancise – and yes, I was involved) and lately and clearly by the Supreme Court of Canada in the “pentalogy”. 
  • Every specialized tribunal suffers from the inherent risk of “regulatory capture”. It is well known that can be an unseemly amount of lobbying when it comes to Copyright Board appointments. See Simon Doyle’s recent tightly pay walled but important piece in the Globe and Mail.  Adding more resources can only exacerbate any possible potential problems in this respect.
  • There is much to be said for considering the American model of “consent decrees” overseen by truly independent and expert federal judges. Indeed, Canada has a Competition Tribunal with a lean and efficient support infrastructure and several Federal Court judges with expertise and experience in economic regulation and even intellectual property issues in place at any given time. Since the Copyright Board was born out of concern about “super monopolies” expressed by the late great Judge Parker in 1935, the possible adaptation of a “consent decree” model in Canada under the aegis of the Competition Tribunal is something that merits serious exploration. In theory, the entire role of the Board could be modified and absorbed by the Competition Tribunal, although this would almost certainly require legislative change. Such a transformation might also save taxpayers a lot of money.
  • The Patented Medicines Notice of Compliance proceedings in the Federal Court are over and done with including a judgment within 24 months because regulations say that they must be. These cases are usually very complicated factually, and often involve several experts in pharmaceutical chemistry, etc. – an area far removed from the “common sense” comfort zone of most judges. However, these hearings run well because they must – and normally take no more than 4 or 5 days.
Below are some potentially interesting and useful statistics from the most apparently analogous federal institutions. This chart is a work in progress and may be further developed. Suggestions are welcome, on or off line. Corrections are also welcome, since I’m no expert in the interpretation of bureaucratic financial and planning reports.

The inclusion of the Supreme Court of Canada is a result of the  published statement of the retired Chairman of the Copyright Board (William Vancise) in 2006 shortly after his appointment:
I am not at all happy with the time it takes to render a final decision. I have tried to address the issue and I can assure you it will be resolved. If the Supreme Court of Canada can render a decision within six months of a hearing, there is no reason why this Board cannot do the same. My goal is to see that this occurs. (emphasis added)
It was indeed a rather odd notion on the part of Judge Vancise to use the Supreme Court of Canada as a proxy for the Board’s timing benchmarks, because the Supreme Court does not hear evidence or witnesses and it does, by definition, almost always deal with very complex and important legal issues. However, QED. If the Court can render judgments in six months, a fortiori one would think that the Board could do so – if not in much less time. Therefore, it is unfortunate that Justice Vancise was not able to resolve this problem during his ten year tenure and it would seem anecdotally that the delay problem has actually become significantly worse in recent years. For example, it has been nearly 2.5 years since the Board’s hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) matter and no decision has yet been rendered in that matter. The Access Copyright Post-Secondary Tariff seems to have gone into a state of suspended animation, since there has been no follow up by the Board to its announcement on January 17, 2014 that it will postpone the hearing sine die and will “will either decide when to reschedule the hearing or proceed on paper”.

So, in the meantime, here’s some data I’ve assembled without being commissioned by anyone:

Tribunal/ Applicable
Regulations or Rules re Procedure
Mandate/# of Significant & Substantive Decisions per year
# of Members
# of Staff FTE
Budget (i.e. net cost of operations)
Copyright Board/No procedural regulations in place other than Board’s informal and very general “Directive on Procedure
Setting Copyright Tariffs and Levies pursuant to Copyright Act/ app. 3 per year. (S. 77 “Unlocatable” decisions cannot be considered as “significant” and have never involved an actual hearing)
Up to 5 full time. Currently 1 full time + 1 part time. Chair (currently vacant)who  must be a sitting or retired judge.
Dealing with wide range of applications arising from Competition Act/ app. 10 per year since 2000.
Up to six judicial members from Federal Court and not more than eight lay members
Wide range of licensing and regulatory oversight in broadcasting and telecommunication, internet, ant-spam, etc./ app. 600-700 decisions a year – many minor but many very important, e.g. 2014
Chair, two Vice-Chairs and up to 10 national and Regional Commissioners
(Expenses of 65,030 offset by revenues of 47,444)
Canadian International Trade Tribunal/ See Act and Regulations here.
international trade cases, procurement cases, customs and excise tax appeals and government-mandated inquiries within the Tribunal’s jurisdiction”/129 decisions in 2013-2014
Up to seven full time members including a chairperson
Handles more than 600 labour related matters under Federal jurisdiction, including Status of the Artist Act. Processing times are published here.
Chair, two Vice-Chairs, up to six full time members, and additional part time members

Trademarks Opposition Board/ See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s. 45 expungement. Many of these rulings involve hearings./ 741 decisions rendered in 2011-2-12
These are all public service positions.
Nine full time justices.
(net cost of operations est. for 2013-2014)

The problems of the Board can only be solved if both of two things happen:
  • In the short term and very urgently, we need the appointment of a Chairperson (who must be a sitting or retired judge) who can hit the ground running in terms of knowledge of copyright and administrative law at minimum and is able and prepared from a managerial standpoint to make some changes in the way things work at the Board. This person should preferably also have experience in competition, communications and/or other related areas of economic regulatory law. It will be relatively easy to find such a qualified person from the ranks of sitting or retired Federal Court or Federal Court of Appeal judges and probably very difficult to find the right person elsewhere. Needless to say, given the very specialized mandate of the Board, such person’s career prior to appointment to the bench should not give rise to any possible apprehension of bias.
  • In the medium but not far off term (i.e. a year or two but no more), we need regulations to deal with such issues as steps in a proceeding, the interrogatory or discovery processes, benchmark timelines, “expert evidence”, etc. The Board is clearly unable or unwilling to make anything more than very incremental changes from now well-established but clearly problematic processes. Its latest effort at consultation has produced a remarkable consensus amongst a mix of normally strange bedfellows who agree that the recommendations by the majority of the Working Committee may only make things even worse, which is no easy task in this instance. See the very limited terms of reference at page 27 of the recent Working Committee Report.
It will be noticed in the above chart that the Board is the only institution listed without regulations or other form of mandated specific rules to govern its procedure.  There is no reason for this to be the case – indeed experience suggests quite the contrary. As everyone knows, regulations are much easier to implement than statutes. That sometimes pesky and petulant creature known as Parliament is not involved. All the necessary authority is already in place in this case. There’s no need – and arguably no excuse - to wait for the five year review.


Friday, March 13, 2015

Update on Canadian Copyright Board Matters: What is Happening and Not Happening

Supreme Court of Canada

There’s a lot going on – or not going on – concerning the Copyright Board.

The Board has promptly posted all the responses to its Working Group Committee Report. I won’t begin to analyze them, other than to say that there was a surprising amount of agreement amongst a number of normally strange bedfellows (including Music Canada, Access Copyright, major broadcasters and yours truly) that the recommendations might actually make proceedings even longer and more expensive at the Board.

Simon Doyle has written a timely piece in the Globe and Mail – unfortunately it’s heavily pay-walled – about the slowness of the Government to appoint a new Board chairperson. He mentions some – though not all – of the names that are being talked about in various circles. He describes some of the apparently intense lobbying that is taking place. He also quotes me as follows:
“There’s no apparent reason why it now often takes the board four years to get to a hearing and two years or more to render a decision,” Howard Knopf, a copyright lawyer in Ottawa with Macera & Jarzyna LLP, said by email.

Mr. Knopf said the Copyright Board has oversight of about $500-million a year “of collective copyright activity in Canada. Also, the board’s processes have generated a lot of money over the years for certain lawyers, consultants and perennial ‘expert’ witnesses.”

Mr. Knopf said the government can implement regulations that could address the steps, stages and timelines of a hearing, the interrogatory process, the qualification of experts, and timelines for the rendering of a decision after a hearing.

Meanwhile, back in the Courts, on Monday morning, March 16, 2015 the Supreme Court of Canada will hear the CBC v SODRAC appeal, which involves yet another judicial review of a Copyright Board decision. This will be  the 17th case involving important consideration of the Copyright Act that this Court will have heard  beginning with the 2002 case of Th├ęberge v Galerie d’Art du Petit Champlain inc. Seven of these have arisen from judicial review of Copyright Board decisions.  Five others were infringement casesPrior to 2002, the last important copyright case from the Court was Bishop v. Stevens, [1990] 2 S.C.R. 467, which will be referred to very often on Monday.

CBC v SODRAC will focus mainly on technological neutrality. I should disclose my involvement as counsel for the Centre for Intellectual Property Policy at McGill and Prof. Ariel Katz. They have been given leave to intervene on what they call the “mandatory tariff” theory. Their position is that it:
…lacks any basis in law: standard principles of statutory interpretation contradict it; the case law debunks it; and the legislative history discredits it. In addition to absurd results that contradict fundamental tenets of the rule of law, the “mandatory tariff” theory threatens to upset the balance in Canadian copyright law. It would overly compensate owners, contrary to this Court’s holding in Th├ęberge, and it could gut fair dealing and others users’ rights, contrary to what this Court cautioned against in CCH.

The webcast will be delayed because SODRAC has filed some material that it regards as confidential. The music industry will present two joint interventions, and CIPPIC will also appear. All the factums can be found here.

Those who want to watch this live in real time will have to attend at the Court. Proceedings start at 9:30 AM.