The Future of Legal Education in Canada - Wine and Cheese with Bruce Feldthusen - Ottawa Couchiching Roundtable - May 27, 2013

• Ottawa May 27, 2013
• Past Roundtables

The Future of Legal Education in Canada

With Dean Bruce Feldthusen

Dean Bruce Feldthusen of the University of Ottawa Faculty of Law (Common Law) will speak about “The Future of Legal Education in Canada”. This comes at crucial time, when enrolments in American law schools are sharply down due to decreased demand for graduates. Opportunities for new graduates in Canada are decreasing, and many competent graduates cannot even find articling positions. Yet, we are seeing the creation of new law schools in Canada. There are many challenges and opportunities ahead for legal education in Canada. Dean Feldthusen has kindly agreed to talk about these issues, as he retires from the deanship of one of Canada’s leading law schools.

About Dean Bruce Feldthusen

Dean Bruce Feldthusen of the University of Ottawa Faculty of Law, has served as Dean of the Common Law Section since 2000, with a brief interruption to serve as Vice-President, University Relations in 2007 – 2008.

Dean Feldthusen was the research director for the Ontario Law Reform Commission’s 1989 study on Exemplary Damages, which has been cited with approval and adopted in many common law jurisdictions in Canada and abroad. He has also written in the area of equality theory, and human rights law. His article "Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It" won the 2006-08 Canadian Journal of Law and Society Article Prize.

Time & Location

Monday May 27, 2013 7:00–9:00 p.m
.
Gowling Lafleur Henderson LLP Board Room
2600–160 Elgin Street
Ottawa, ON K1P 1C3
(get directions) 

Fee & Registration

$35 + HST, $20 + HST for students. Wine and hors d’œuvres will be served.

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CBC Fails to Obtain Security for Costs Order Midway Through Leuthold’s Appeal

On November 18, 2012 I wrote about the curious case of Ms. Catherine Leuthold, an American gardener and photographer, who believes that she is entitled to about $21.5 million in damages because the CBC inadvertently reused, without adequate clearance, some of her still photos from 9/11. At trial, she was awarded $19,200. However, she is on the hook for an enormous amount of costs because she turned down an offer for a higher amount than the trial Court finally awarded. She is appealing both the trial judgment and the costs ruling. Her theory of damages is apparently predicated upon the proposition that CBC’s transmissions from each of the its 800 or so participating affiliated stations and Broadcasting Distribution Undertakings [BDUs] gave rise to a separate act of infringement.

I also noted that the CBC - which is subsidized by taxpayers to the tune of more than $1.1 billion per year – had not asked the Court for an order for security of costs. Ms. Leuthold is not resident in Canada and such security for costs orders are quite normal in the case of non-residents. A plaintiff can avoid such an order if impecuniosity can be demonstrated and the Court is of the opinion that the case has merit. Without commenting on this particular case, such orders can be very effective at stopping speculative litigation brought by non-residents of Canada. I have not hesitated to use this tool when necessary. And it has worked. 

 So, the CBC eventually got around on December 21, 2012 – well into the appeal process and a month or so after I raised the issue on this blog - to asking for security for costs in the modest amount of $50,000. It did not cross-examine on Ms. Leuthold’s affidavit resisting this motion, which indicated that her average yearly taxable income is less than $15,000.00 US and her assets are of limited value. In the words of Noël, J.A.:

The appellant resides in the United States. She is self-employed as a gardener on a seasonal basis (Affidavit of Catherine Leuthold, Appelant’s Motion Record, p.1, paras. 4 and 5). She also occasionally licenses photographs which she takes (ibidem). Her average yearly taxable income is less than $15,000.00 US and her assets are of limited value (Affidavit of Catherine Leuthold, Appelant’s Motion Record, p.2, paras. 6 and 8; Exhibit CL-1, Appellant’s Motion Record, p.5; Exhibit CL-2, Appellant’s Motion Record, p.60).

 The Federal Court of Appeal has concluded that it is possible she might recover more than the original award of $19,200 and that ordering security for costs would result in discontinuance of her appeal. The Court refused to grant CBC’s motion for security, which is not surprising under all the circumstances and at this late date.  However, why CBC did not seek such an order at the beginning of this proceeding is not apparent. 

Interestingly, the Court makes a very pointed observation:

[7]   Amongst the questions in issue on appeal is whether a communication to the public for purposes of the Copyright Act, R.S.C. 1985, c. C-42 takes place when the photos are transmitted to the broadcasting distribution undertakings or on each occasion when the broadcasting distribution undertakings retransmit the photographs to the public (Amended Notice of Appeal, Appellant’s Motion Record, pp. 85 and 86, paras. II and III). The number of instances when the appellant’s copyright was infringed turns on this question (Motion Record, Reasons, p. 62, para. 105).

 [8]  While I do not believe that the appellant can seriously envisage obtaining an award of the magnitude which she claims, I am unable to conclude that the issue raised on appeal cannot lead to an award that is more favourable to the appellant. To that extent, I am satisfied that the appeal has been shown not to be without merit and I exercise my discretion so as to allow it to proceed.

(Emphasis added)

This is hardly a victory for Ms. Leuthold.  It simply means that she can continue to pursue her quest for a $21.5 million damage award based upon a very novel theory of liability. Clearly, the Federal Court of Appeal has already expressed some explicit skepticism in the above passage on the likelihood of success on this point. Whether the Federal Court of Appeal finds that there is substantively anything more to this case than an ‘honest mistake” and inadvertent failure by a large bureaucracy to pay for a few reuses remains to be seen. The trial Judge apparently did not seem to think so.

So – taxpayers will likely have to absorb all of CBC’s doubtlessly very high costs on this case, which has been going on for years, no matter what the outcome may be. It is difficult to see how the CBC could be able to collect its costs from someone living in the USA on a taxable annual income of less than $15,000. If the CBC had asked for security for costs early on, things might have been very different.

As I said on July 12, 2012:

 In case anyone was not already aware, Canadian copyright litigation is not a lottery. One cannot necessarily expect to receive $21.5 million from the proceeds of a lawsuit against a public broadcaster involving a mistaken re-use – or even six such re-uses - of 18 seconds worth of still photographs in a feature length CBC documentary, when the original license was given for $2,500.

…

If this decision is to indeed have “significant effects in both Canadian copyright and broadcasting law” as her counsel suggests, I suspect that it will be to remind potentially aspiring litigants and their counsel that litigation is in Canada is not like a lottery and Canadian judges do not hand out gigantic jackpots like American juries sometimes do. One can normally expect that Canadian Courts will follow the maxim as stated by Justice Scott of the Federal Court in this case that: 

Fundamentally, the Court‘s discretion is broad but its assessment of damages must be based on common sense.

HPK

Warman & National Post v. Fournier - CIPPIC Seeks Leave to Intervene

CIPPIC is now seeking leave to intervene in this Federal Court of 
Appeal case. CIPPIC's leave to intervene motion record is available here. 

It will be interesting to see if there will be other attempts to intervene. 

As I've suggeseted earlier, this is a case that calls out for intervention.

HPK

Update on Memoranda in Warman and National Post v. Fournier & copyright in headlines, limitation periods, etc.

On March 14, 2013 I wrote about the appeal in Warman & National Post v. Fournier, and in particular about the National Post’s effort to establish that it has an enforceable copyright interest in the headline or title “"Jonathan Kay on Richard Warman and Canada's Phony-Racism Industry"”.

By way of update, here are all three memoranda of law on behalf of:

Richard Warman,

National Post, and

Mark and Connie Fournier, who are self-representing.

Warman’s memorandum is confined to the single but important issue of whether the three year limitation period in the Copyright Act applies with respect to “continuing or ongoing infringement”.

The National Post ((which, for whatever reasons, took no part in the proceedings below), is dealing with the substantive copyright issues.

Because there are wide-ranging and fundamental copyright issues of a procedural and substantive nature at stake in this case, applications to intervene would not be surprising. I will post them as they happen.

HPK

Moral Rights in the USA - "Frankly, My Dear, I Don''t Give a Damn" v. "Tomorrow Is Another Day"

For better or worse, Clark Gable seems to sum it up very well for the US attitude towards moral rights.

Mira Rajan - after a long blogging silence – has re-emerged on the 1709 Blog and is once again tilting at a windmill, this time at the issue of moral rights in the USA – or more particularly the lack thereof.

What she does not seem to realize is that:

• Frankly, for better or worse, virtually nobody with any influence in the USA would seem to actually “give a damn” about moral rights for anyone other than for visual artists. RIP Ted Kennedy.  See "Frankly my dear, I don’t give a damn…”
• The USA cleverly and cynically exempted itself in the TRIPs agreement from repercussions  under international law for its failure to provide moral rights. The world let the USA get away with this
• The Berne Treaty provides no recourse for failure to provide redress for non-existent moral rights regimes
•  Maria Pallante, the recently appointed US Register of Copyrights, in her recent speeches and testimony to Congress said not an iota about moral rights.
• We can expect no more attention from the US Congress on moral rights than we can expect their devotion to combatting global warming, repeal of the second amendment regarding gun control, Canadian style Medicare, or a unanimous affirmation of the principle behind Roe v. Wade.
• Moral rights reform in the USA is, for better or worse, probably a lost cause in our time. Mira’s research skills might be better devoted to something in the realm of art of the possible.
• Even in countries such as Canada where moral rights has been given a high legislative profile, there are less than a handful of meaningful judicial decisions in the last 80+ plus years that moral rights have existed in Canadian legislation…
• When it comes to moral rights in the USA, it would seem that “tomorrow is another day”…

HPK

Access Copyright v. York University - Statement of Claim including Schedule "B"

Here is Access Copyright’s Statement of Claim against York University.

There are three schedules including the Interim tariff approved by the Copyright Board 18 hours before Christmas (here is a link to the Board version), 2010 (Schedule "A"). Here is Schedule "B", courtesy of Alan Macek.

Schedule "C" is the York U fair dealing guidelines dated 11/13/12, available here.

AC seeks to enforce this interim tariff and get paid in full for it and get an injunction against York U operating outside the tariff, among other things.

So, the "mandatory tariff" issue is now front and centre.

Suffice it to say for the moment that this is a very interesting attempt to enforce the interim tariff, which is referred to as the "Approved Tariff". It is not framed as an infringement action.

HPK

rev.

Access Copyright Thrashes Thrice

Access Copyright (“AC”) today announced:

• A lawsuit has been launched against York University. It alleges that York's purported fair dealing guidelines authorize and encourage copying that is not supported by the law, and that there is no justification for the University to operate outside the interim tariff.
• An interim elementary and secondary school education tariff application has been filed with the Copyright Board of Canada. This application seeks an effective enforcement mechanism against the ministries of education and Ontario school boards for their stated intention to stop paying the royalties set by the Copyright Board.
• A proposed post‐secondary tariff has been filed with the Copyright Board of Canada for the period of 2014‐2017. With this application, Access Copyright ensures the continuation of an existing process at the Copyright Board to establish the royalties to be paid for the use of copyright‐protected content in post‐secondary educational institutions.

I have a copy of the second item, namely the interim elementary and secondary school education tariff application, which is attached.

This application for an interim tariff seeks an enforceable tariff based upon AC’s notion of fair dealing, notwithstanding that the K-12 schools have all apparently determined based upon legal advice from counsel that they do not need a license from AC, presumably because everything they copy is either not in AC’s repertoire or is insubstantial or is fair dealing. Much as certain folks may be in denial, we have heard from the Supreme Court of Canada and Parliament on these issues quite recently and quite explicitly. This application will be nothing if not controversial, if it indeed proceeds.

Interestingly, this follows a recent speech in Toronto by the General Counsel of the Board. A very reliable person who attended that speech (I did not) has advised me that the speaker commented that he had heard that schools would be relying on a fair dealing policy in which ‘everything is claimed to be fair dealing’ and that he thought it was “courageous” for schools to rely on such a policy. He reportedly then said, with AC very much present, that if AC wanted to move forward on the K-12 2010-2012 and 2013-2015 files, it could bring the fair dealing policy before the Board. My source of this information is “positive that he said the word “courageous” but the other sentences aren't exact quotes”.

I also attach AC’s proposed post-secondary tariff for 2014-1017. I haven’t read it in any detail. However, I note that it still purports to cover posting a link or hyperlink to a digital copy. And, ever the apparent voice of sweet reason, the proposed FTE rate is lowered by $10 to $35 and $25 for Universities and “all other Educational Institutions” respectively. That said, the fact is that dozens of post-secondary institutions have decided that an AC license is not worth taking at even the "discounted" prices earlier offered of $26 and $10 respectively. Prof. Sam Trosow has called this #ACdeal “a bad deal at any price”

I am waiting for a copy of the lawsuit against York University supposedly based upon its fair dealing guidelines. In the meantime, it’s interesting to speculate on why AC would seek what sounds like a very  vague declaration – which the Courts may be disinclined to even consider - rather than actually sue for infringement (if any, and leaving aside some rather existential questions about "standing") or to deal with this in the current and proposed Board proceedings.

HPK

PS - A vigilant and loyal reader reminds me that IP Osgoode reported at length on General Counsel Mario Bouchard's January 28, 2013 ALAI presentation referred to above here.

rev. April 9, 2013

Recent Legislative Developments In Canadian Copyright Law: Is Canada A Reliable Role Model Or A Renegade Rogue? From Fordham 2013

Here is my presentation on the legislative developments in Canadian copyright law in 2012 - which led to a 70 minute long Fordham 2013 session in the amphitheater. Interestingly, the more negative comments on Canada came not so much from the usual American suspects - who have implicitly if not explicitly now noted that certain promising things have happened in Canada and that Canada is no longer quite as bad as the Ukraine. The more negative or skeptical comments came rather from certain Canadian sources. However, I, for one,  do believe that Canada's Parliament and the Supreme Court of Canada have both fulfilled their roles elegantly and have, in 2012,  made Canada a role model for other nations to follow.

So - here are my slides. My comments are in green bold. Most of the rest of this is quotations from the statute, the legislative summaries from the Library of Parliament, the regulation and Bill C-56:

  HPK Slide Show Re CDN Legislative Developments Fordham 2013 Final by hknopf

HPK