Tuesday, June 21, 2016

Access Copyright v. York U – The Final Trial Arguments Are Set to Unfold



The concluding arguments in the Access Copyright v. York University case at the trial level of the Federal Court of Canada will begin on Wednesday, June 22, 2016 in the East Court Room of the Supreme Court of Canada (“SCC”) building at 1:30 PM. One looks forward with great interest to see how the parties will address issues such as:

The Mandatory Tariff Issue

How will the parties deal with the fact that the Supreme Court of Canada (“SCC”) ruled on November 26, 2016 that “licences fixed by the Board do not have mandatory binding force over a user”?  In the current case involving York U, it wasn’t even a final tariff. It was only an interim tariff. I’ve written about this issue at length. This is no longer theoretical. The mandatory tariff issue has been dealt with by an explicit ruling from the Supreme Court of Canada, Here’s my most recent blog, which includes useful links to the decision itself, the dozen or so key paragraphs and the factum that Prof. Katz, Prof. Lametti (now David Lametti, M.P.) and I used to make the points that the Court embraced. If York successfully argues that Board tariffs are not mandatory in this instance, this may make the rest of this extremely long, complicated and expensive case effectively moot. That is because Access Copyright did not and cannot sue for copyright infringement. It is not a copyright owner or even an exclusive licensee. Even if were the latter, which it is not, it would need to join the actual copyright owners, which it did not. So, all eyes will be on the parties to see how they deal with this issue.

Fair Dealing in Canadian Universities

Since there has been enormous discovery work and expense devoted to putting York’s fair dealing policy on trial and most, if not all, of this presumably took place before the SCC’s ruling in CBC v. SODRAC, one expects that the parties and the Court will address it any event. In this regard, it will be interesting to see how the parties deal with the 2012 “education” amendment to the Copyright Act and two fair dealing decisions from the Supreme Court of Canada from 2012.  Furthermore, there have been two decisions from the Copyright Board since dealing extensively with the application of fair dealing in institutional settings involving Access Copyright.

The Context

This is an extremely important case. There have been about three weeks of evidence, including much expert evidence. No doubt, costs are already enormous for both sides. Given the recent rulings by the SCC on the mandatory tariff issue and by the SCC and the Copyright Board on fair dealing, Access Copyright would seem to be facing a major and existential challenge here. On the other hand, if York fails to succeed on the mandatory tariff issue, the consequences to the educational system could be profoundly negative.

If York succeeds on the mandatory tariff issue – and succeeds on the appeal that may follow – any ruling on York’s fair dealing policy may technically be obiter dicta but could still have interesting implications in all the circumstances.

Meanwhile, the Copyright Board is deliberating on AC’s Post-Secondary tariff. That hearing concluded in January of 2016, although the Board is still asking some interesting questions of AC, such as whether the Quebec COPIBEC regime should be relevant. This could, given recent practice at the Board - but hopefully won’t - drag on for another two years. Also, meanwhile, the Federal Court of Appeal has just heard a judicial review application on June 20, 2016 concerning the AC Provincial Government Tariff. That hearing also involved fair dealing issues and "substantial copying". Unlike, the typical two year delay in Copyright Board rulings, the Federal Court of Appeal normally renders its decisions in weeks or months – typically a few months at the most.

We live in interesting and interconnected times.


HPK

Friday, June 10, 2016

Is the Senate Rushing to Judgment on Bill C-11 (implementation of WIPO Treaty for the Blind)?



The Senate is rushing at unusual speed to hold hearings on Bill C-11 - a bill to implement the WIPO Marrakesh Treaty for the Blind. There are reasons to be concerned about the "commercially available" exception to the exception and the possibility of collective and Copyright Board involvement. I’ve written this here and here.

 The Senate announced late on Friday, June 10, 2016 that is will hold a Committee hearing next Wednesday, June 16, 2016. That is far from adequate lead time for anyone who may wish to prepared constructive comments - assuming that potential witnesses are even available on such short notice.

I’m hearing reliable reports that Canada wants to be early in line to ratify the treaty – which is commendable. But that is not a good enough reason to rush the passage of a flawed implementation bill that may actually serve as a disincentive to the production of material for blind persons by both publishers and organizations working for the blind. There appears to be the possibility of potential Trojan horse provisions not required by the Treaty that could enable royalties and the prospect of Access Copyright, for example, applying for a tariff at the Copyright Board. Even the mere possibility of such a development is more than enough reason to pause for sober, second thought.

Readers who believe that more lead time is needed and/or a follow up hearing in the fall should contact the Committee right away as follows:

Clerk: Lynn Gordon - (613) 991-3620
Administrative Assistant: Julie Flannery - (613) 990-6187
General Information: (613) 990-0088 or 1-800-267-7362
Fax: 1-613-947-2104
Email: banc@sen.parl.gc.ca
Mailing Address:
Standing Senate Committee on Banking, Trade and Commerce
The Senate of Canada
Ottawa, Ontario
Canada, K1A 0A4 


HPK

Thursday, June 09, 2016

Bill C-11 to Implement Marrakesh Treaty for the Blind to be Studied by CDN Senate Banking, Trade & Commerce Committee


 

Here’s a very good example of how the Canadian Senate can potentially do what it was meant to do, which is to provide sober, second thought and experienced insight into Government legislation. The Senate is hopefully going to have a good look at Bill C-11, a bill to implement the Marrakesh Treaty for the Blind. I raised some serious concerns at the "commercially available" exception to the exception and the possibility of collective and Copyright Board involvement the other day here.

It seems that communications and comments from Ariel Katz, Michael Geist, I and perhaps others have alerted the Senate to certain issues. The Bill has been referred to the influential Banking, Trade and Commerce Committee. Here’s an excerpt from  short but incisive and very well informed  speech by Senator Tobias C. Enverga, Jr. expressing concern about the Bill that merit further study, although he is very supportive of it:
Honourable senators, I did raise a concern earlier regarding the rushed passage of this bill in the other place and how we should give Bill C-11 our full attention and study. Although I wholeheartedly support this bill, I have been made aware of two concerns from members of the public who are better informed of copyright laws than I am. The first is the limitation of commercially available products in clause 1. It is permissible under the treaty, but it is not necessary and may result in a stricter, more prohibitive regime in Canada than elsewhere.
The second concern raised, honourable senators, is the imposition of royalties for those non-profit organizations that take advantage of the exceptions from the copyright laws that the bill intends to allow for. The royalty would be in accordance with regulations set by the Governor-in-Council pursuant to section 32.01(7) of the Copyright Act. This seems to impose a financial disincentive on organizations like the CNIB to fully take advantage of the new law. It also provides a disincentive to publishers and copyright holders in making materials for those who are visually impaired readily available for commercial purposes.
Honourable senators, this being Canada's upper house, where we are expected to take a closer look at legislative proposals, I strongly encourage the committee to which the bill will be referred to allow for the stringent review that Canadians expect us to undertake and to fully investigate the effects of the bill by inviting the relevant witnesses to appear to share these concerns with the committee's members.
(highlight added)

I’m confident that this Bill will get the care it needs to make it even better in this Committee, which includes Senator Joseph Day, who was an IP lawyer back in the day before he was appointed.

I shall update on this and readers may want to make their views known to the Senate Committee and volunteer to appear as witnesses in due course.


HPK

Tuesday, May 31, 2016

Bill C-11 and the WIPO Marrakesh Treaty for the Blind – Tell the Senate to Take A Sober Second Look ASAP Beginning Today


As Michael Geist recently reported, Bill C-11, which is intended to implement the WIPO Marrakesh Treaty for the blind, was rushed through the House of Commons with no debate. That does not mean that the Bill was perfect. Far from it. Indeed, Michael shows clearly why it needs more work.

It contains a potentially problematic mechanism to enable the making of regulations that would impose royalties payable to a collective (any guesses who that might end up being?) and which could presumably involve oversight and even tariff setting by the Copyright Board. The latter prospect would no doubt be great for certain lawyers and a certain collective – and would likely take years to resolve, given the high cost and slow pace of everything at the Copyright Board. This “commercially available” exception to the exception mechanism is NOT required by the Treaty and would make Canada something of an outlier. See below.

Bill C-11 is headed for second reading the Senate this afternoon. It could, with the best of intentions, be fast tracked without debate. That could lead to unpleasant results.

This “commercially available” exception to the exception may be permissible pursuant to the WIPO Treaty but that does not mean that is necessary or desirable. We need look no further than the commercially available exception to the ephemeral rights exception in the Copyright Act to see the dangers of such an approach. It ended up in the Supreme Court of Canada and the story is far from over.

KEI, the leading and highly respected NGO that was largely responsible for the success of the WIPO Treaty, has some pointed comments on the “commercially available” exception and how it is not required by the treaty – and how Canada would be an outlier  in invoking such an exception to the exception. Even the USA does not do this.

Let us hope that the Senate takes the time to debate – and if necessary – to fix this well-intentioned bill. The last thing that the blind need is another royalty scheme that will benefit lawyers, bureaucrats, collectives and result in a call for even more resources at the Copyright Board. And by the way, how does one spell “T-A-X”?

Here’s the email for The Leader of the Government in the Senate:
Here’s the email for the Senate Liberal Leader:
jim.cowan@sen.parl.gc.ca
Here’s the email for the Leader of the Opposition
in the Senate:
claude.carignan@sen.parl.gc.ca


HPK

Friday, April 15, 2016

Review of Peter S. Grant's USERS’S GUIDE TO CANADIAN COPYRIGHT TARIFFS 2016 Second Edition




The unique and ubiquitous Peter S. Grant  and his team (including Grant Buchanan
Daniel G.C. Glover, and Keith D. Rose)  have recently published a book entitled USERS’S GUIDE TO CANADIAN COPYRIGHT TARIFFS 2016 Second Edition.


This book contains some introductory information about Canadian copyright collectives, the mandate of the Copyright Board, the Board’s record in judicial review, and an interesting and useful summary of how the Supreme Court of Canada has treated the Board with respect to the “sempiternal” issue of standard of review, as the great retired Justice L├ętourneau called it. The introduction concludes with a chart of how the $438 million of annual tariff revenues in 2014 was split between the various collectives.  It should be noted that not all of the revenue of all of the copyright collectives in Canada falls under Board tariffs. Moreover, in the educational sector virtually all of the K-12 school boards and many if not most universities and colleges have ceased payments to Access Copyright. 

There are then about 100 pages of Summary Tables of Rates, conveniently broken down into the major categories. One can quickly find out actual numbers. There are numerous references to the Board’s certified and pending tariffs, including URL hyperlinks. However, these UR hyperlinks are, unfortunately, not useful since the book is only available in paper and not electronic format. More on the book’s format below…

There is a fairly detailed and interesting discussion of the recent CBC v. SODRAC so-called “arbitration” case, and how the SCC dealt with it.

The balance of the book’s nearly 600 pages consists of currently certified or pending tariffs. This section contains the most useful aspect by far of the book, which is a “chronology” of summaries of previous Board decisions dealing with the particular tariff and summaries of Court cases that may have dealt with the particular tariff. These summaries are fairly detailed and appear to be generally accurate. This aspect of the book represents considerable added value and clearly required an enormous amount of hard work on the part of the many people at Mr. Grant’s firm who assisted him in this project.

There is an alphabetical index to tariffs and an index organized by collective and tariff number.

Finally, there is an alphabetical list of judicial decisions discussed in the book that relate to current tariffs. Older decisions, some of which are extremely relevant to Board practice, such as Vigneux or Maple Leaf are not included in this edition. The book covers only the modern Copyright Board which was established in 1989 as a successor to the previous Copyright Appeal Board, which existed for over fifty years.

This book complements another publication by Mr. Grant entitled Communications Law and the Courts in Canada 2014  which I reviewed back in 2014 here.

By and large, the book avoids any editorial comment on the merits of any particular Board or court decision. However, Mr. Grant cannot resist repeating his comment made in the Communications Law books about how the Federal Court of Appeal has twice overturned the Board on the interpretation of “audio recording medium”, thereby creating what Mr. Grant calls a “significant loophole” in Part VIII of the Act. I must confess to being rather proud of my involvement in those two court decisions and the exclusion of smart phones, thumb drives, hard drives, microSD and all kinds of other media now known or presumably to be known in the future from the reaches of the Canadian Private Copying Collective.

This book once again reminds me of how easy and useful it would be for the Board to improve its website by providing links to each court case dealing with judicial review of its decisions. This would be a simple task that shouldn’t take more than a few days all told of research and website updating. It would also be useful to list all of those decisions and a brief note or even head note about what they held on a separate webpage on the Board’s site. That might take a bit more time, but Mr. Grant has already provided a model for such a task.

This book will be very useful – indeed indispensable – for anyone in the small circle if counsel who practice before the Board, works at the Board, works for a collective, or works in Government and is interested in how the Board functions.

The book will help to make the work of the Board more transparent. The Board’s website and its annual reports are a good start in this respect. But the Board’s website does not measure up in terms of utility in important ways to other comparable ones. I’ll deal with this some other day, but for the moment, one can readily note:

  • A very frustrating “search” function
  • Lack of “docket” tracking for past and pending cases, as we have for the Federal Courts, the Supreme Court of Canada, the Competition Tribunal, e.g. here for the Stargrove case, etc.  Note that the SCC and the Competition Tribunal actually provide online virtually all important documents filed – subject to confidentiality issues, naturally, but even those exclusions are premised on the presumption that courts should be “open”. The Competition Tribunal manages to provide an excellent website, despite its smaller staff and budget than that of the Copyright Board.

Although the book is a useful step forward towards understanding how the Copyright Board works and what its decisions and tariffs actually do, it still requires a fair amount of prior knowledge on the part of readers in terms of “inside baseball” to take full advantage of all of the work that went into the book. The index helps – but is not sufficiently detailed to find out, for example, how much a “busker” has to pay to SOCAN. One has to know what tariff that particular activity would fall under.Once again, searchable electronic format would be very useful. 

Indeed, the book is very timely as attention is now being escalated and focussed in government, amongst several strange bedfellow stakeholders and counsel and, hopefully at the Board itself on how it can shorten its proceedings, lower the cost of these proceedings and render its decisions within an acceptable time frame. That conversation may now become even more urgent in light of the most recent decision of the SCC dealing with a Board decision, namely CBC v. SODRAC, which held, following arguments that I made on behalf of and with Ariel Katz and David Lametti, that Board tariffs are not de jure mandatory. 

That decision also acknowledged that there could be “broader questions concerning the legitimacy of or limits on the Board’s power to issue retroactive decisions” in the words of Justice Rothstein. Perhaps this was a hint. With respect to timelines of Board decisions, a useful feature for future editions of the book might be the inclusion of key milestone dates for each current pending or decided tariff, such as the date filed, the dates of the hearing, the date of the Board’s decision and the time period covered by the tariff. Compiling that information would be somewhat tedious but simple, since it is all already online in various bits and pieces at the Board’s website.

Clearly, Mr. Grant and his colleagues are not publishing this book in order to make money. The market for it is obviously quite small.  We should be grateful to them for making it available to interested folks at a relatively modest cost of $70.

However, I can’t help but note that the quality of paper and the very small font size of most of the book make it difficult to read in places. The paper is so thin that the ink on the other side of the page is visible. The book is published by Mr. Grant’s law firm and not by a major publisher, which may explain why it doesn’t meet the usual aesthetic, paper quality or legibility standard one would expect from my publisher, Carswell, or Irwin Law, for example – whose paper back publications are convenient and easy to read. 

Perhaps the potential market for the book is too limited to attract an established law publisher. However, given that the likely audience of this book consists of collective executives, public servants, law libraries, and  a small number of mostly very well paid Copyright Board practitioners,  it is likely that these purchasers might be willing to pay a bit more for a more legible edition. The obvious improvement in terms of format and utility would be to make the book available in electronic format either online or on DVD or both – so that the thousands of URL hyperlinks would actually work, and one could search quickly for what one wants.  Far be it from me to suggest business advice to Mr. Grant and his partners, but perhaps Westlaw might include the book one day in its very useful WestlawNext Canada website as part of its IP Source package.
 
Mr. Grant’s book will be a useful tool to those interested in the work of Canada’s Copyright Board, and an indispensable one to those closely involved with its work.


HPK