Monday, November 17, 2014

Copibec v Laval - The Class Action - First Step

Here is the first step in the Quebec copyright infringement class action by Copibec against the University of Laval. This is a request to the Quebec Superior Court to authorize Copibec to proceed by way of a class action. 

Two immediate differences leap out in comparison to the Access Copyright v. York U. litigation:

  1. There is no "interim tariff" in effect for Copibec. York is relying on the "interim tariff" from the Copyright Board, which AUCC and ACCC took no steps to have set aside when this might have been possible and perhaps quite feasible at the time back in January 2011.
  2. This is a proposed class action. The AC v York U litigation is not.
More news when I have it...

HPK

Monday, November 10, 2014

Now COPIBEC Is Suing Laval in the Quebec Superior Court

Copibec is the Quebec counterpart of Access Copyright. It has started litigation in the Quebec Superior Court against  l’Université  Laval. I'll post the claim when I get a copy. Here is the press release:
***
En Anglais:


Copibec: $4 Million Class Action Lawsuit Against Universite Laval for Copyright Infringement

MONTREAL, QUEBEC--(Marketwired - Nov. 10, 2014) -
Copibec has filed a motion in Quebec Superior Court for authorization to launch a class action on behalf of thousands of authors and publishers from Quebec, the rest of Canada and other countries around the world because their copyright protected works have been copied without permission by Université Laval.
On an annual basis, the Quebec City-based university copies more than 11 million pages from 7,000 different works published in Quebec, the rest of Canada or abroad and includes them in coursepacks sold to students or distributes them online via its secure internal computer network.
Until May 2014, Université Laval, like all other Quebec universities, held a comprehensive licence issued by Copibec allowing it to make those copies legally. However, the university's board of directors decided not to renew its licence and on May 21, 2014 put into effect a policy concerning the use of third-party works for teaching, learning, research and private study purposes ("Politique et directives relatives à l'utilisation de l'œuvre d'autrui aux fins des activités d'enseignement, d'apprentissage, de recherche et d'étude privée à l'Université Laval"). That policy now lets professors, lecturers, instructors and researchers make copies of copyright protected works and excerpts from those works without the university having to obtain permission from each author and publisher or pay the required royalties. Université Laval is the only educational institution in Quebec acting in that way.
Copibec, whose official name is the Société québécoise de gestion collective des droits de reproduction, is a not-for-profit created in 1998 by the Union des écrivaines et écrivains québécois (UNEQ) and the Association nationale des éditeurs de livres (ANEL) to manage the reproduction rights for copyright protected works in print and digital formats. It has the authority to manage the reproduction rights of 2,330 publishers and 24,295 authors from Quebec as well as the authors and publishers represented by reproduction rights organizations in 32 countries, including France, Belgium and the United States.
On behalf of the authors and publishers whose works were copied without permission by Université Laval, Copibec intends to ask the Superior Court to issue orders so that the illegal copying can be stopped and the illegally copied material can be seized. It also intends to ask the Court to sentence Université Laval to pay those authors and publishers approximately $2 million in unpaid royalties, $1 million in moral damages and $1 million in punitive damages in addition to the profits earned on the sale of coursepacks to students.
Since the case is before the courts, Copibec's representatives will not be giving interviews about the class action.

CONTACT INFORMATION

  • For more information, please contact Copibec's legal
    counsel in this case
    Daniel Payette
    418-837-2521

    En Francais: 

COMMUNIQUÉ
L’UNIVERSITÉ LAVAL POURSUIVIE EN RECOURS COLLECTIF
POUR 4 MILLIONS DE DOLLARS EN VIOLATION DE DROITS D’AUTEUR
Montréal, 10 novembre 2014
COPIBEC a déposé aujourd’hui devant la Cour supérieure du Québec une demande afin d’être 
autorisée à exercer un recours collectif au nom des milliers d’auteurs et d’éditeurs québécois, 
canadiens et étrangers, dont les œuvres ont été reproduites sans permission par l’Université 
Laval.

Cette institution d’enseignement supérieur reproduit annuellement plus de 11 millions de pages 
tirées de plus de 7 000 œuvres québécoises, canadiennes ou étrangères, qu’elle intègre dans des 
recueils de textes vendus aux étudiants, ou qu’elle distribue en ligne sur son réseau informatique 
interne sécurisé.

Jusqu’en mai 2014, l’Université Laval, comme toutes les autres universités québécoises, détenait 
une licence générale de Copibec l’autorisant à effectuer légalement ces reproductions. Toutefois, 
le conseil d'administration de l’université a décidé de ne pas renouveler sa licence et de mettre en 
application, à compter du 21 mai 2014, une politique concernant «l’utilisation de l’œuvre d’autrui 
aux fins des activités d’enseignement, d’apprentissage, de recherche et d’étude privée à 
l’Université Laval». Cette politique permet aux professeurs, chargés de cours et chercheurs de 
continuer à reproduire des œuvres et des extraits d’œuvres sans que l’Université n’obtienne les 
autorisations ni n’acquitte les redevances requises auprès de chaque auteur et éditeur. C’est la 
seule institution d’enseignement qui se comporte de cette façon au Québec.

Copibec est un organisme sans but lucratif, créé en 1998 par l’Union des écrivaines et écrivains 
québécois (UNEQ) et l’Association nationale des éditeurs de livres (ANEL) afin de gérer les 
droits de reproduction des ouvrages en format papier et numérique. Elle a été habilitée pour 
administrer ces droits par 2 330 éditeurs et 24 295 auteurs québécois, ainsi que par les auteurs et 
éditeurs regroupés dans des sociétés de gestion du droit de reproduction de 32 autres pays, dont la 
France, la Belgique et les États-Unis.

Au nom des auteurs et des éditeurs dont les œuvres ont été copiées sans autorisation par le 
personnel de l’Université Laval, Copibec entend demander à la Cour supérieure des ordonnances 
pour faire cesser cette pratique illicite et pour saisir le matériel contrefait. Elle entend demander 
également à la Cour de condamner l’Université Laval à payer aux auteurs et éditeurs près de deux 
millions de dollars en redevances impayées, un million de dollars en dommages moraux et un 
million en dommages punitifs en plus des profits réalisés lors de la vente des recueils de textes 
aux étudiants.
-30-

L’affaire se trouvant portée devant les tribunaux, les représentants de Copibec n’accorderont pas 
d’entrevue à ce sujet. Pour toute information complémentaire, veuillez communiquer avec le 
procureur au dossier, Me Daniel Payette, 418-837-2521.

Tuesday, November 04, 2014

Last Minute Discontinuance of Patent Case on “Promised Utility” in Supreme Court of Canada

In a very unusual development in a case that promised to be very interesting and important both domestically and internationally, Apotex has filed a notice of discontinuance literally on the day before and figuratively on the steps into the Court in its appeal against Sanofi in the Supreme Court of Canada that was to have been heard earlier today in Apotex et al v. Sanofi et al.  The notice states that “The Appellants wholly discontinues this Appeal on a without costs basis on consent.” This language suggests that some kind of settlement agreement – presumably very confidential – must have been concluded.

I can think of only one other similar situation in the IP and related galaxies at the Supreme Court of Canada level where an appellant discontinued a closely watched appeal at a late stage, and this was in  Vidéotron Ltée, et al. v. Her Majesty the Queen, et al., where the issue was whether certain broadcasting fees were a tax or a regulatory charge. That discontinuance was filed 12 days before the hearing that had been scheduled for October 19, 2009.

We recently saw an abrupt discontinuance of another notable appeal in the Federal Court of Appeal in the copyright litigation involving Richard Warman and Fournier v. National Post. This case was discontinued 5 days before the hearing for February 19, 2014.

Private parties, of course, have every right to settle their cases. However, when the Supreme Court of Court decides to hear cases that require leave to appeal, it is because “the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.

So, it can be very frustrating to the public and particularly to interveners when a case is discontinued and certain questions that are obviously of “public importance” may be left in limbo, even though the decision below technically is left standing.

In today’s discontinued case, the “promise doctrine” and “utility” are also very much are the heart of the Eli Lilly NAFTA Chapter 11 investor/state challenge, although today’s case and the NAFTA case are not directly linked. However, whatever the Court might have ruled in today’s discontinued case might well have been of some considerable interest in the NAFTA case that we will hear much about in the future as it unfolds.

HPK


Thursday, October 30, 2014

The Supreme Court of Canada Takes Another Patent Case - On Delayed Entry and NOC Regs s. 8 Damages

The Supreme Court of Canada is going to hear another patent case arising from this decision of the FCA on issues involving the damages regime for delayed entry resulting from the Notice of Compliance Regime. Here's the Court's official summary - which doesn't necessarily indicate precisely what the real issues will turn out to be:

35886

Sanofi-Aventis, et al. v. Apotex Inc., et al.
(Federal Court) (Civil) (By Leave)
(Sealing order) (Court file contains information that is not available for inspection by the public)


Keywords

Intellectual property - Patents, Medicines.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.
Intellectual property — Patents — Medicines — Generic manufacturer seeking damages under s. 8 of Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 after delayed market entry due to statutory stay occasioned by failed prohibition proceedings — What is correct interpretation of, and correct legal framework applicable to determination of appropriate compensation owed under s. 8? — What is status and legal implications of PM(NOC) Regulations in the hypothetical “but for” world? - Whether legal framework applicable to s. 8 requires the construction of a hypothetical market in which failed prohibition proceedings against plaintiff are excluded, while those against its competitors are legally considered extant
The Applicants (collectively, “Sanofi”) are the patentees and have the rights to a series of Canadian patents for the drug, ramipril, used in the treatment of hypertension. The original ‘087 patent issued in 1985 and was set to expire in 2002. In an effort to extend that patent protection, Sanofi obtained a further series of patents for different indications for ramipril and listed them on the Patent Register. Between 2003 and 2008, these “new” ramipril patents were challenged by Apotex Inc. and other generic manufacturers under the PM(NOC) Regulations. Sanofi applied for prohibition orders in each case, triggering a 24-month statutory stay that kept the generic competitors off the ramipril market during that period of time. Only one prohibition application was successful. Apotex received its NOC to market Apo-ramipril in December, 2006. Sanofi commenced separate unsuccessful infringement actions against both Apotex and the other generic manufacturers. Apotex then brought an action under s. 8 of the PM(NOC) Regulations, to claim damages for its net lost profits during the period of the statutory stay.

The Court will hear the following patent case on November 4, 2014:


35562

Apotex Inc., et al. v. Sanofi-Aventis, et al.
(Federal Court) (Civil) (By Leave)
(Sealing order)


Keywords

Intellectual property - Patents, Medicines.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.
Intellectual property – Patents – Medicines – Patent for medicine held to be valid and infringed by generic manufacturer – How the utility promised by a patent is to be identified and ascertained – How an appellate court is to review factual findings of trial judge as to how skilled addressee would understand the promised utility – How limitations periods are to be applied in respect of activity that only involves conduct, including import and export, in one province.
Plavix is a drug useful in inhibiting platelet aggregation activity in the blood which was developed, patented, and marketed by the respondents (collectively, “Sanofi”). The ‘777 Patent for Plavix is considered to be a selection patent that claims a subset of compounds which are already within the scope of the prior genus ‘875 Patent. The active ingredient in Plavix is clopidogrel bisulphate, the dextro-rotatory isomer of the racemate, having beneficial properties over both the racemate and the levo-rotatory isomer. Apotex Inc. (“Apotex”) attempted to market its own version of clopidogrel bisulfate. It applied for a Notice of Compliance from the Minister of Health, alleging that its version of clopidogrel did not infringe Sanofi’s patent. Apotex also alleged that the ‘777 Patent for Plavix was invalid on several grounds. Sanofi successfully obtained an order prohibiting the Minister from issuing the Notice of Compliance to Apotex. This order was upheld on appeal and again at the Supreme Court of Canada. Apotex then commenced an impeachment action in the Federal Court seeking a declaration that the ‘777 Patent was invalid on several grounds including lack of utility. Sanofi commenced its own action, alleging that Apotex had infringed its patent by importing clopidogrel into Canada and then exporting it from Canada for sale in other countries including the United States. The two actions were consolidated.

Friday, October 24, 2014

The Copyright Act Political Ad Amendment That Wasn't Tabled

In this uniquely tragic and distressing week on Parliament Hill, there was one thing that was a big story a week ago about an event that was rumoured to be on the brink of happening but which has now quietly disappeared from the radar screen.

There were rumours and/or leaks and/or trial balloons about a possible amendment to the Copyright Act buried deep inside an omnibus budget implementation bill that would supposedly legalize the use of excerpts of broadcast network footage of political figures sounding foolish or frightening or otherwise unattractive for the benefit of other politicians who want to use this kind of advertising. Some call this “negative ads”. Others call it “information” or “freedom of expression”.

In any event, I, Michael Geist and Ariel Katz quickly pointed out on our blogs and on air that this is already normally legal and does not require permission, much less payment. Normally, either the use is not going to be “substantial” or it will be “fair dealing” for one or more of the purposes of research, education, parody, satire or criticism. It will normally almost certainly pass the six factor test of fairness laid down by the Supreme Court of Canada.

Now, it seems that the budget implementation Bill C-43, introduced on October 23, 2014 the day after the tragic terrorist event at the National War Memorial and in Parliament Hill, is devoid of any references to the amendments to the Copyright Act. HT to @SDoyle333 for this.

If the Government has decided that it won’t amend the Act to deal with this issue, that would be wise because it would have been unnecessary. Moreover, it wouldn’t have worked anyway, because it seems that the real problem was that of a certain self-styled “consortium” of the major networks, which  agreed not to broadcast these political ads that contain each other’s or third party footage, notwithstanding their documented awareness that copyright arguments won’t wash anymore, if they ever did.

One of the ATIP documents unearthed by Sun News, not a party to the “consortium”, says:

“The goal is to keep news content from being used without permission. In past we fought this stuff using legal threats, but shifts to laws w.r.t. copyright and fair dealing have made this a less effective route. This ‘consortium’ we think would limit the activity.” 
(emphasis added)

So, it will be interesting to see whether six residents or the Minister of Industry cause the Commissioner of Competition to commence an inquiry into this matter, or whether the Commissioner himself chooses to do so.  Such inquiries are not conducted in public. If charges are ever laid under s. 45 of the Competition Act – and I’m not suggesting that this should necessarily happen – we will then certainly hear about it.

Perhaps the networks will quietly undo their consortium agreement and we will see lots of political ads using embarrassing footage in the next year or so, whether we like the ads not.  And there’s always this 1988 ruling by the Federal Court of Appeal, from which leave to appeal to the Supreme Court of Canada was denied in 1989, and which I was pleased to inform many unaware onlookers about, that should serve as a cold shower to any network or rival party who tries to block such ads.


HPK

Thursday, October 16, 2014

The Access Copyright Post-Secondary Hearing – the Narrowing Space Twixt the Rock and Hard Place



As I have suggested before in some detail on April 11, 2014, the Copyright Board is caught between a rock and hard place on the Access Copyright (“AC”) Post-Secondary file and the gap is narrowing.  The withdrawal of the two main objectors – AUCC and ACCC – has not been publicly explained, but may well be for budgetary reasons, since they had already by mid-2012 spent almost three million that we know about to accomplish apparently little if anything other than providing a huge amount of interrogatory information for the benefit of AC and to reach model agreements that have been widely rejected by their own members.

If indeed their withdrawal was for budgetary reasons, perhaps a lot of money could have been saved (not to mention time and resources amongst their members) if they had followed the well-established practice of responding to interrogatories only from a representative sample of members – as explicitly though belatedly reminded by the Board on June 6, 2011. Perhaps the Board assumed that they would have done just that. However, their failure to follow this practice remains unexplained, at least in public.

Unfortunately, it only now appears that a very large number of universities and colleges may have spent an incalculable amount of time providing answers that could turn out to have been unnecessary. Even the smallest of the two hundred or so affected institutions has probably spent hundreds of person/hours on this process. One can only imagine the resources put in by the larger ones. 

In any event, this is water under the bridge and the AUCC and ACCC have indeed withdrawn, and also inexplicably withdrawn their objections, paving the way for a default decision that may be very harmful for their members and which may leave their members in a very difficult if not impossible position in terms of judicial review or other recourse in the event that there is a “mandatory tariff” and Access Copyright sets about to enforce it. The situation will be even more serious if York loses its litigation against AC, which won’t even get to trial before May of 2016.

In any event, the Board is clearly troubled by this situation and has issued no indication as to how it will proceed with a hearing in this file since its cryptic notice on January 17, 2014 that:
Finally, the withdrawal of CAUT and CFS as well as Mr. Katz implies that the Board staff needs to play a more active role in the file.
For these reasons, and because of the additional drain on Board's resources this implies, the Board postpones sine die the hearing in this matter. After having received and analysed all answers from Access, and replies from Mr. Maguire, the Board will either decide when to reschedule the hearing or proceed on paper

Now, it seems that even Access Copyright is getting worried. It recently filed this letter dated October 6, 2014  with the Board. The letter says:
In Access Copyright’s submission, an oral hearing is needed as a matter of procedural fairness and in view of Access Copyright’s reasonable expectation, based on directives and Notices of the Board, that there would be an oral hearing. The Directive on Procedure issued by the Board on October 16, 2012 stipulated that an oral hearing will be held. Notices issued by the Board on a number of occasions before Access Copyright filed its case1 confirmed that the Board would be holding an oral hearing. Access Copyright accordingly filed its case in the reasonable expectation that there would be an oral hearing. The Board adjourned the hearing sine die only after Access Copyright had filed its case. Given the reasonable expectation created by the Board’s directives and Notices, Access Copyright respectfully submits that the principles of natural justice and procedural fairness require that an oral hearing be scheduled in order to permit Access Copyright to put its entire case before the Board.

There remains one objector, Mr. Maguire, in these tariff proceedings. It is not the fault of Access Copyright that the Association of Universities and Colleges of Canada (“AUCC”), the Association of Canadian Community Colleges (“ACCC”) and other institutions and individuals all withdrew as objectors. Access Copyright should not be prejudiced by the decision of those objectors to withdraw. We note that the Board has held hearings in other proceedings where there have been no objectors.
(emphasis and highlight added)

It is quite clear that AC is setting the state for judicial review here, if for any reason the default proceeding does not go their way and as far they want it to go, i.e. to a “mandatory tariff” that could render a large university liable for millions for making just one infringing copy of just one work that happens to be in AC’s repertoire, no matter how much money and effort that the university has spent in good faith on other means of copyright clearance and compliance.

This file has been plagued from problems from the beginning, not least of which was the interim tariff imposed on the eve of Christmas  in 2010 and the blatant failure of the AUCC and ACCC to even try have it set aside, which may be been quite possible at the time on several grounds as I have outlined many times.

The current system in place at the Board is based upon the adversarial system, which has fundamentally failed in this instance due to the withdrawal of the main adversaries.
The members of the AUCC and ACCC have a lot to be worried about. But so does AC. This is not a pretty picture.

An oral hearing would provide at least some measure of transparency. It would provide the Board with an opportunity to publicly question AC’s witnesses to the extent that the Board believes it can and should do so, and to the extent of the Board’s resources, given that the Board does not seem to be contemplating the involvement of an amicus curiae. It would give the public the opportunity to attend and some basis to provide informed written comments, pursuant to the Board’s usual Directive on Procedure, especially if the Board were to promptly post a transcript of the hearing and set a deadline that would allow for meaningfully sufficient time for such comments.  

Perhaps the Board should grant AC’s wish, with AC being mindful, as many copyright collectives and NGOs have learned the hard way, of the old adage about being “careful what you wish for.”

It may fall to the next Chair of the Board to decide how to proceed, since the past Chair’s appointment expired on May 13, 2014 due to the operation of the statute. In any event, the silence is beginning to get louder and the suspense is building.

HPK

Wednesday, October 15, 2014

Copyright, Campaigns and Lots of Other “C” Words

(Wherein Rick Mercer Goes Remarkably Rogue re Reliability and his Research Resourcefulness: Warning - this Rant is Hazardous to the State of Canadian Journalism and Rick's Otherwise Respected Role Therein) 

Countless “C” words have been in circulation re Copyright, Campaigns, a Certain Consortium, Collusion, Conspiracy, Co-conspirators,  Cartel, Censorship, Confidence, CTV, CBC, Conservatives, and Commissioner of Competition. Of course, nothing regarding the Competition Act has been proven in court or is yet anywhere even near a court as far as I know. But the most applicable “C” word of all might be “Confusion”.

I’ve been involved with copyright law for longer than I care to admit – indeed, more than three decades. But I don’t think I’ve ever seen so much confusion and just plain WRONG commentary about a copyright issue as I’ve seen in the last week of Coverage of the issue of copyright and negative political ads. 

The prize for the worst coverage of all goes, surprisingly, to someone who one would have thought would appreciate the importance of fair dealing and satire – but apparently does not. That would be Rick Mercer no less – and here’s his remarkably wrong Canard of a rant on the subject. CTV’s Question Period last Sunday wasn’t much better – despite the presence of several highly experienced and reputable journalists who one might have thought would understand the role and importance of fair dealing. Let us hope that this generally dreadful coverage is not related to the “consortium” agreement executed by senior executives of the main Canadian networks last spring, from which Sun News was notably and conspicuously excluded. Perhaps these otherwise usually reliable journalists have just drunk too much of their corporate employer’s Kool Aid over time. In any event, it’s time for some Clarity and hopefully a Conclusion.

As I suggested last week, there are potentially interesting aspects involving Canada’s Competition Act issue arising out of the “consortium” agreement led by CBC concerning the signed agreement of the major broadcast networks in Canada to “to keep news content from being used without permission”, the content being footage of politicians who sometimes say silly or embarrassing things and permission not being needed when the use of such content involves insubstantial copying or fair dealing. Such footage has become the fodder of many “attack ads”, which are hardly a new practice. As I pointed out, the Liberals successfully fought for the right to air such ads back in 1988. The CBC "consortium”, was apparently spear-headed by Jennifer McGuire in response to concerns by Peter Mansbridge about use of certain footage of him interviewing Justin Trudeau.

My friend and colleague Prof. Ariel Katz of the U of T Faculty of Law, with whom I have worked closely on a factum that was quite influential in a landmark Supreme Court of Canada fair dealing case and other issues, is an internationally recognized leading copyright scholar and Canada’s foremost expert in the interplay of IP and competition law.  Here’s his blog from October 14, 2014 entitled Attack Ads, Copyright, and Collusion: Have Canada’s Major Broadcasters Violated the Competition Act?

Prof. Katz discusses s. 45 of the Competition Act, which comes under the heading “Conspiracies, agreements or arrangements between competitors” and is perhaps the most feared and potent provision of the legislation. It is used in serious cases. It can put people in jail for up to 14 years and result in a fine of up to $25 million per count, or both, which is a very big time penalty by Canadian standards. Changes made by Parliament to the s. 45 provisions in 2009 that came into effect in 2010 may now make it easier in some circumstances to obtain a conviction. The new section provides for “per se” offences, which do not require proof that competition was lessened “unduly” and there is no need to prove any adverse market effects. There is no need to prove that the conspiracy in question was actually carried out – only that it was entered into. There’s also a less harsh new “civil” enforcement provision to be found in s. 90.1 that involves the Competition Tribunal, which may or may not be of interest in the current situation. To be crystal clear, nothing I am saying or have said accuses anyone of any offence or violation under this or any other provision of the Competition Act. I am merely pointing out that there are provisions in the Competition Act that may be relevant, depending on the facts, and that folks, including the Commissioner of Competition, may be interested in looking at this situation.

Prof. Michael Geist also comments, based upon the “consortium” ATIP, that “The email trail reveals that the CBC recognized that it could not reject the advertisements on copyright grounds. Instead, the broadcasters conspired to adopt a policy to reject the ads anyway, an approach that smacks of copyright misuse and a potential Competition Act violation.”

Ezra Levant, himself a lawyer, has also expounded at length about all of this on October 13, 2014  and - leaving aside his clearly stated political preferences and taking his uniquely proud, provocative, political and personal proclivities into account - has some very useful and insightful things to say about copyright and competition law.

If the Competition Bureau does not choose on its own to look into this, there is always the possibly of “six resident” complaint under s. 9 of the Competition Act, which as the term suggest, can be launched by any six Canadian residents. It doesn’t necessary go anywhere but it forces the Commissioner of Competition, at the very least, to open a file. Rather more potent is the provision under s. 10 of the Competition Act that requires the Commissioner to commence an inquiry at the direct of the Minister of Industry, which could potentially, if warranted, lead to a result that addresses the Government’s concerns.

If the real issue here is something that can be dealt with under the Competition Act, then there may, at the end of the day, be no need to amend the Copyright Act – which already allows for the kind of “fair dealing” that most of these ads involves. If the networks have agreed among themselves not to broadcast material that is apparently legal according to copyright and is apparently not defamatory, then the Competition Bureau should at least be looking into this.

Whatever one thinks of political attack ads, it must be noted that they have been used by the major parties in both Canada and the USA. One should not lightly ignore the saying attributed to Voltaire: "I disapprove of what you say, but I will defend to the death your right to say it".

So, my bottom line Conclusion at this time is that:
a.   As Voltaire is said to have said, "I disapprove of what you say, but I will defend to the death your right to say it".
b.   The Government is right to be concerned about main stream network censorship of political speech.
c.    However, amendment to the Copyright Act may not be necessary or even effective because the Act already allows and indeed encourage such speech without the need of permission. In fact, this Government added the words “education, parody and satire” to the list of permitted purposes. There’s also a reassuring clip from Prime Minister Stephen Harper himself about all this wherein he makes it clear that the copyright  law already is OK and allows this kind of political speech and he would be very concerned about anything that would block or censor this kind of information from the public.
d.   I don’t think it ever was the Government’s intention to give politicians any more political speech rights than NGOs, or unions, or bloggers or any other ordinary citizens interested in freedom of expression – but if there’s no need for legislation, then there’s no risk of such a presumably unintended consequence.
e.   This potentially could turn out to be a competition law issue. I pointed out last week, and I think I was the first, that this whole issue might be very interesting to the Commissioner of Competition. Now, we’ve seen 137 pages of documents unearthed by the Sun News network that are out there online on my blog and elsewhere about a network “consortium” to “limit” the kind of activity that’s under discussion. This could be of great interest to the Commissioner of Competition, who is independent of political influence and who has great resources and lots of investigate powers behind him.
f.     BTW, any six residents of Canada or the Minister Industry can start the ball rolling with the Commissioner of Competition, if for any reason the Commissioner doesn’t take the initiative himself and needs to be nudged.
g.    I have attached the potentially relevant provisions of the Competition Act for the convenience of readers who may not be familiar with them.
h.   I was just on Ezra Levant’s show once again on this issue – here’s the link.

HPK

PS: Prof. Katz has reminded me that the UK Bill that led up to the monumental 1911 UK legislation and which included the fair dealing provision for the first time mentioned explicitly only 4 purposes: private study, research, criticism, review. “Newspaper summary” was added in committee because the British newspapers requested it, naturally, because they were concerned that, without it, it would be more difficult for them to produce newspapers. “Newspaper summary” was later considered as potentially too narrow, which is why, in Canada, we changed the term to “news reporting” in 1997. That clearly includes broadcast media, and not simply newspapers. The Canadian media apparently then didn’t think that fair dealing was “theft” or “stealing”. One important newspaper, the Toronto Star, even won one of the most important fair dealing copyright cases in Canada at that time, which involved the copying of the entire front cover page of a magazine that featured a picture of the then prominent politician Sheila Copps on a motorcycle that was used in an article about Sheila Copps. That was the case of Allen v. Toronto Star Newspapers Ltd., 1997 CanLII 16254 (ON SC).  Also, see Prof. Katz’s Chapter entitled Fair Use 2.0: The Rebirth of Fair Dealing in Canada from the book edited by Michael Geist on the “Pentalogy”.

(rev. October 16, 2014) 

PS II:

Here's the follow up with Ezra Levant and Prof. Ariel Katz on s. 45 of the Competition Act and six citizen complaints, etc.