Saturday, October 24, 2020
Thursday, September 24, 2020
Another instalment in the mass litigation litany from the Aird and Berlis firm has now been released involving The Outpost - a 2020 picture.
There are 841 "Doe" defendants. See attached Statement of Claim.
Wednesday, September 23, 2020
Here's Access Copyright's Reply.
Here's York's Reply.
The materials were submitted to the Judges on September 14, 2020,
We will learn sooner or later whether leave has been granted to either or both sides.
Meanwhile, potential interveners should be watching.
Friday, September 04, 2020
Here's Access Copyright's Response to York's Leave to Appeal Application.
Here's York U's Response to Access Copyright's Leave to Appeal Application.
Thursday, September 03, 2020
The Copyright Board’s New $757,548.50 (+?) Website – Finally an Apparently Functional Search Engine – but Otherwise Disappointing at Best and Problematic at Worst – And Still NO CANLII Presence
The Copyright Board finally announced its “new” website yesterday, September 2, 2020:
The Copyright Board welcomes you to its new website! This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information and products in both official languages, as required by the Official Languages Act.
One major innovation on the website is the incorporation of Decisia (by Lexum). This platform allows users to have access to the resources made available by the Board, such as documents, decisions, approved tariffs, licences for the unlocatable copyright owners regime, and much more. Discover it here. Additionally, users can subscribe to Decisia's mailing list and receive weekly updates on the publication of new documents. This innovation supports the Copyright Board’s broad objective toward ensuring greater transparency and access to justice for all Canadians.
It apparently has cost at least $757,548.50 that we know about. Some quick next day comments:
For those who had laboured to become familiar with the previous website, some things – such as Notices & Rulings – have inexplicably disappeared from plain sight and can only be found through the thankfully finally apparently functional Search facility – which has been needlessly non-functional for as long as I can remember. The Notices and Rulings are still not up to date after December, 2019.
Apart from a new look, there is apparently little new useful information or other evidence to substantiate that this “This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information…”
There is a somewhat useful page for “Ongoing Cases” – which presents a bit more conveniently the same information that what was already there and not very hard to find. There is also a listing of “Filed Agreements” – though only for 2017 on – which are presumably available upon request though “Agreements will continue to be screened before access for the purposes of the Privacy Act.”
There are lot of apparently new entries in the FAQ section. Some are misleading to users and maybe even dangerously deferential to collectives. An unnecessary enquiry to a collective can put someone on that collective’s radar and needlessly at risk. And few if any collectives have comprehensive and reliable information online about their actual repertoire. In the case of Access Copyright, it’s something of a joke. As I’ve pointed out several times, it is happy to sell you a license to ancient public domain editions of Charles Dickens Christmas Carol. More on this FAQ stuff later. Frankly, the Copyright Board has no mandate to provide legal or even vaguely general copyright advice to the public and should not be using its resources to do so. To the extent that such information is accurate, appropriate, useful, and warrants government resources, it should be provided by CIPO.
One notably non-responsive and even evasive FAQ response to the utmost important and most often asked question of How Long It Takes the Copyright Board to Render its Tariff Decisions is this:
The Copyright Act provides that "cases before the Board are heard expeditiously and without formality".
The complexity and level of preparation of the file submitted may influence the time taken by the Board to examine the application as well as the time taken to deliberate leading to a decision, for example, if the file is incomplete.
The number of stakeholders can also indirectly influence the duration of the process, since this increases the possibility of having an objection to the proposed tariff; or if there is objection, since the objectors must present their arguments in writing. Once the objectors' files are considered complete and have been presented, the Board enters into deliberation. Its decision is made public when it approves the tariff and publishes it in the Canada Gazette.
The fact is that it can take the Board almost ten years to retroactively approve an effectively uncontested tariff in circumstances that make the result inconclusive, e.g. the Access Copyright Post-Secondary tariff, which I wrote about here on January 22, 2020. Not surprisingly, the key links I provided don’t work any more.
Indeed, a lot of old links unfortunately no longer work – for example the links I reported on the $757,548.50 budget allocated to the new website as of November of 2019. See here. The information is still there on the Board’s website – but the old links don’t work any more.
The search engine appears to functional back to 1990 – though I haven’t fully tested it yet.
However, the overwhelming problem that remains is this:
The Board’s Reasons of Decision and Tariffs are NOT available on CANLII, where a simple one stop search would produce results – for example for “making available” – that would include BOTH Copyright Board and Court decisions. CANLII searches can be fine tuned using the “advanced” tools.
I have looked into this CANLII issue very carefully and received very knowledgeable information. There is no reason why the Board’s decisions and tariffs is couldn’t have been made available on CANLII at no cost many years ago. There is no reason why this should not immediately happen going forward with coverage since at least 1990. There is no need for any additional cost to taxpayers.
Other comparable tribunals that are on CANLII include:
- The Trademarks Opposition Board
- Commissioner of Patents
- The Competition Tribunal
I have tried but been unable to get any direct answer from the Board about the inexplicable and conspicuous absence of its decisions on CANLII.
The Board’s adoption of the background engine DECISIA – which can be used for better (e.g. for better at the SCC and apparently for worse at the Competition Tribunal) can allow for feeding of cases to CANLII – but this is not and never has been a necessary aspect of such utility – which is an essential component of access to justice.
So – the bottom line for now is that we have a website with a new look but few new useful aspects – except for a finally apparently functional search engine, which I will test further later. That could and should have been fixed at no cost many years ago. The Board has regularly spend a very large amount for many years on outside sources for its website with a non-functional search function. Indeed, my own blog has a fully functional search function and a daily – not weekly - email update feature and my software costs nothing. It’s not easy to see how or why the Copyright Board’s “new” website has cost taxpayers at least the $757,548.50 that we know about.
It would appear that older snapshots of the Board’s website are available on the marvellous Wayback Machine at www.archive.org .
If anyone sees any positive or negative aspects I may have missed in this next day quick review, please comment below – which you can do anonymously if you wish – or email me privately.
And, BTW, the position of Chair of the Board remains vacant. That is a serious issue and we really need to have a top notch sitting, supernumerary or retired judge – preferably from the Federal Court or the Federal Court of Appeal and with no ties to vested interests. And someone who is willing take on the challenge, wherever it may lead, of ensuring that better decisions are rendered in a time frame consistent with other Canadian courts and tribunals.
Thursday, June 25, 2020
York University’s material deals with the fair dealing aspects of the FCA decision:
(updated June 26, 2020)
Wednesday, June 10, 2020
The Federal Court of Appeal Makes its Making Available Judgment Available: It’s Not Just About “The Vibe”
In 2004, the Court ruled the Board was wrong to conclude that the permanently embedded or non-removable memory, incorporated into a digital audio recorder or the device itself, was “an audio recording medium ordinarily used by individuals to copy music”.
In 2007, CPCC tried again and the Board was asked to determine whether the recorder itself was a recording medium as defined in the Act. It said yes in a long and well reasoned decision. The Federal Court of Appeal, once again on judicial review, overturned the Board. This time, the Court in six turgid paragraphs found its decision of 2004 dealt with the matter and was binding on the Board. I still wonder how the Federal Court of Appeal came to that conclusion when the question of whether the device itself was subject to a levy had not even been an issue in the previous decision and the comments of Noel J.A. were obiter and contained in what can only be called a “throw away line.” A throw away line that has had extreme consequences, not the least of which is at least 10's of millions of dollars in royalties that have not been paid to authors, composers and performers and threatens to destroy the private copy regime.
- Tariffs such as those sought by Access Copyright and SOCAN are not mandatory for users. This is based upon nearly eight decades of SCC jurisprudence that in turn reaches back to at least 1894
- The Copyright Board has considerable scope to set rates – including a zero rate where there is insufficient evidence to justify a tariff. But deference by the FCA won’t make the tariffs acceptable to the public if the tariffs are not sensible and timely
- The Copyright Board needs to be mindful of basic principles of statutory interpretation, including the basic and obvious axiom that international law must not be misused so as to misconstrue domestic law
- As attractive as the exercise may have been, and even by the generous standard of “reasonableness”, the Board was very unreasonable in its venture into the “vibe” of international law.