Monday, January 17, 2011

The Access Copyright Interim Tariff - Looming January 21, 2011 Deadline and Issues regarding Judicial Review

For anyone contemplating the possibility of a an “appeal” (i.e. judicial review or “JR”) of the Copyright Board’s Access Copyright (“AC”) Interim Tariff decision dated December 23, 2010, it is important to immediately consult counsel with experience both with the Copyright Board and the Federal Court of Appeal.  Here are some general observations, which are NOT - as always is the rule on this blog - legal advice:

1.    The safe deadline for filing the judicial review application is this Friday, January 21, 2011.  The Christmas Recess doesn’t count because the 30 day deadline is set by the Federal Courts Act and not the Rules. Also, strictly speaking, Saturday is not a “holiday” under the Interpretation Act.

2.    The Board’s deadline of this Friday, January 21, 2011 for further submissions is arguably irrelevant for the purposes of judicial review of the decision dated December 23, 2010. These new submissions that some may file with the Board may allow - maybe - for tinkering at the edges on the wording. The basic decision to impose an interim tariff was made on December 23, 2010. That’s the decision to be reviewed.

3.    Case law suggests that the fact that reasons have not yet been rendered is also irrelevant for the purposes of the deadline for filing a judicial review notice in this instance.

4.    In any event, when it comes to deadlines, it always better to be safer rather than sorry.

5.    The basic grounds for judicial review - based upon the many objections filed to the interim tariff and the process that was undertaken - are likely to include:
    a.    Lack of jurisdiction
    b.    Lack of evidence
    c.    Lack of procedural fairness.

6.    A judicial review notice that preserves options is a simple document. Indeed, the whole judicial review process is normally relatively very simple, fast and only a small fraction of the cost when compared to a Copyright Board hearing.

This decision is arguably the most controversial in the Copyright Board’s history. It grants a so-called “interim” tariff that will almost certainly last for at least three years and be worth about $48,000,000. This was done in a few weeks without an oral hearing and - arguably and according  to virtually all of the objectors -without ANY  evidence.

However, information received from several sources suggests that the AUCC, which represents university administrations, and which is  supposedly the main opponent of the tariff, will NOT be seeking judicial review in this instance, despite its protestation that it “vigorously opposes” the AC application and said that the Board has “no jurisdiction” in this instance.  If AUCC fails to seek JR, it will be interesting to see the rationale for not pursuing what is arguably a very strong case for successful judicial review. If the “interim tariff” is not set aside on judicial review, the result will arguably be that, among other things:

1.    This interim tariff could become the foundation or floor for a much more expensive and restrictive tariff to follow retroactively several years from now;
2.    The likely minimum cost of $48 million over the three year likely minimum life of this so-called “interim” tariff will likely be passed on to students, who will not have any obvious recourse; and,
3.    AC will surely argue that the terms of the interim tariff - if not set aside - including the totally new and controversial digital provisions - will serve as the new norm in the marketplace and thereby become incorporated into future “fair dealing” decisions by the Board and maybe even the Courts with respect to the six factor test in CCH, particularly the last factor and likewise for the arguably unnecessarily highly restrictive fair dealing guidelines proposed by AUCC itself - which couldn’t have been much more restrictive even if drafted by AC itself.

There are a lot of questions to be answered in the next few days. Rumours are out there that the Board’s reasons will come soon - perhaps even today - but those reasons are unlikely to change any of the above.


Monday, January 10, 2011

Early Fallout and Confusion from Access Copyright’s Interim Tariff in the Post-Secondary Sector

One had hoped to see reasons from the Copyright Board by this time regarding its unprecedented decision of December 23, 2010 to impose an Interim Tariff in favour of Access Copyright. The immediate effect of that decision will be to arguably make mandatory (for all practical purposes) a model voluntary agreement that had been virtually unanimously rejected by the post secondary community and which will result in ongoing payment requirements of about $48,000,000 over its expected three year minimum duration.

Here is a memo dated January 4, 2011 - i.e. 12 days after the decision - being circulated at a major Canadian university. I have redacted the identity information. Note the extreme restrictions on academic freedom that will harm both teachers and students:

From: XXXX
Sent: Tuesday, January 04, 2011 4:11 PM
Importance: High

XXXX University’s license agreement with Access Copyright has expired as of Dec. 31, 2010. Due to developments and negotiations occurring late in December, we were unable to inform the university community until today. Subsequently, we ask all faculty members, contract instructors, and anyone preparing course materials or other documents for teaching or research to observe the following due diligence in the teaching of their courses and otherwise dealing with copyright protected materials in any way:

1. As always, faculty should only provide links to source files in WebCT or other course web pages. Posting original digital copies (such as PDF files) within WebCT, without proper permissions, is a copyright infringement.

2. Any photocopying should observe the following provisions:
a. Made with the consent of the owner of copyright. Faculty are encouraged to find material for which the Library has a transactional licence for student use, or use open source material. Otherwise, faculty will need to contact the rights holder and negotiate use directly.
b. Made pursuant to an exception under the Copyright Act (e.g. fair dealing). This would apply to students making single copies of works considered optional readings for a course. This does not apply to required readings, copies of which would not fall under fair dealing. More information about fair dealing interpretations can be found at:
c. Made from public domain works (e.g. a work for which the author has been dead for more than 50 years).

3. There will be changes to the Library’s course reserves policy. Further information will be sent out from the Library shortly. 

At this point, we ask everyone to exercise extreme caution when dealing with copies of materials. Should you have any questions about your particular copyright situation, please contact 

More detailed information regarding copyright will be forthcoming in the very near future. We will be sending out regular notices and updates to the campus community over the next few months, as well as providing additional signs near photocopy stations and organizing information sessions.

Thank you for your kind attention to this most important matter.
Now, its not clear whether the official sending this memo even knows about the Board’s ruling of December 23, 2010 granting Access Copyright an Interim Tariff. The wording suggests that he or she does not - even though the memo is dated January 4, 2011. The memo doesn’t refer to the Board’s decision. 

On the other hand, it is also possible that this University is aware of the Board’s decision and intends to operate without dealing with Access Copyright, as suggested by the Board. If this is the case, the University takes that position that all staff must rely on;
1. transactional licenses
2. public domain
3. open source
4. direct negotiation with copyright owner
5. the public domain
6. Fair dealing

Note the extremely severe restrictions with respect to the University’s interpretation of fair dealing, which flow from the Copyright Board’s K-12 decision, as upheld by the Federal Court of Appeal (leave to appeal is pending in the Supreme Court of Canada):
This would apply to students making single copies of works considered optional readings for a course. This does not apply to required readings, copies of which would not fall under fair dealing.
(Emphasis added)

It’s difficult to imagine how it can be education as usual at a Canadian university with such restrictions - but this is what we now have as of January 4, 2011 at a major Canadian university. Anyone at American university would be astonished at such restrictions, which simply don’t exist in the USA.

The Board’s decision of December 23, 2010 imposes an interim tariff for universities that wish to or feel that they must deal with Access Copyright that presumably avoids some of these restrictions by offering what is supposed to be as much as possible the “status quo” licensing arrangements. However, the tariff imposed by the Board comes at a significant cost, which almost all of the Universities had rejected. 

It appears that there may be some considerable confusion at this point early in the new year about the Board’s decision of December 23, 2010 , which took effect on January 1, 2011. It is likely that few in the University community were aware of it and many may still be unaware. And many who are well aware of it are still pondering certain potentially very important implications of that decision. This is all the more difficult, since the Board has not yet released reasons for the decision. Releasing a major decision without reasons is unusual, though not surprising in this case, considering the haste of the process.

This also suggests that many may be unaware of the possibility of judicial review of the decision granting the application for an interim tariff  and the looming deadline under the Federal Courts Act for commencing such a process. An application for judicial review must be commenced within 30 days after the time the decision was first communicated by the Board to the party directly affected by it, unless the deadline is extended by the Court, which is unusual.  Anyone with any questions about potential judicial review should immediately consult with counsel as to the applicable deadline and procedure.

Successful judicial review could result in the Interim Tariff being set aside. It is clear from the material filed in opposition to the Interim Tariff by several participants that arguable grounds for judicial review could include:
Lack of jurisdiction; 
Lack of evidence; and,
Procedural fairness.


Thursday, January 06, 2011

AUCC Counsel's Letter of January 5 2011 to Copyright Board

Here is a letter from AUCC's Counsel to the Copyright Board dated January 5, 2011.


Saturday, January 01, 2011

A Dozen Copyright Predictions for 2011

A soothsayer in front of a king: (Olaus Magnus 1555)

Here are a dozen copyright predictions for 2011, mostly but not solely of interest to Canadians:

1.    There will be immediate concern over the Copyright Board’s December 23, 2010 decision to grant an interim tariff to Access Copyright (“AC”), even though no tariff existed before. The cost of the tariff will be payable by the post-secondary educational sector outside of Quebec and be about $48,000,000 over its likely minimum three year duration, based upon AC’s own figure for annual revenue. Indeed, it could last much longer, though possibly in a modified form. Since there are several obviously arguable grounds for judicial review (i.e. “appeal” for non-lawyers), any one of which could result in the interim tariff being set aside, it would be both surprising and controversial if one or more applications for such review were not to be made and vigorously pursued.

2.    In January or February, the Supreme Court of Canada will grant leave to appeal in the CMEC K-12 case. This is the case in which the Copyright Board (upheld by the Federal Court of Appeal) took a very narrow view of fair dealing in the educational sector, holding that anything copied by a teacher or when a teacher tells a student what to read DOES NOT constitute fair dealing. This contrasts nicely with another decision from the Board (also upheld by another panel of the FCA a few weeks before the Court’s K-12 decision) that the provision by Apple  and use by consumers of iTunes 30 second previews in a clearly commercial context DOES constitute fair dealing. The SCC has already decided to hear the previews case. The cases could be heard as early as November or December of 2011. There will be several applications for leave to intervene.

3.    If there is a spring election, Bill C-32 will die, though not with a mere whimper. If an early election kills the Bill, the iPod “tax” and possibly the digital locks and education parts of it could become election issues.  On the other hand, if it is somehow crammed through in what appears to be unseemly haste, there could be repercussions in the election.

4.    Even if there is no spring election, Bill C-32 may still die. Certain collectives and trade associations were still not content with a bill that is strongly weighted in their favour. They have still not learned to be careful what they wish for and that, at least  in copyright law, greed is not good. The Government may have put some water in everyone’s wine - but that wine may be in the process of  turning to vinegar, due mainly to the efforts of insatiable copyright maximalists.

5.    Judge Chin will deliver his judgment on the Google Book Settlement approval case in the early part of the year. It will be dramatic. Google will not be happy.

6.    Copyright trolls will slink, crawl, and/or be pushed or squished back into their rightful places and have to wait for another day and other prey.

7.    The IP misuse doctrine will gain traction in American and Canadian courts.

8.    There will be intense activity and interest surrounding the appointment of the next US Register of Copyright. Let us hope that he or she has the necessary qualities and can rise to the immense challenge of carrying on the tradition and stepping into the shoes of such illustrious recent predecessors as Barbara Ringer, Ralph Oman and Marybeth Peters. That will not be easy and will be impossible if the person is not seen as neutral, expert and already very experienced in both domestic and international copyright law, policy and politics.

9.    Canada will retain and possibly even advance in its position in the USTR “Special 301" hierarchy. The usual suspects will cry “shame” and the usual sceptics will giggle yet again.

10.    Canada will make a free trade deal with the EU. Another non-transparent trade deal that will change domestic law will be concluded outside of Parliament. Say good bye to Kraft and other domestic “Parmesan” cheese. It will have to be called Kraft Krumbly or something else that nobody will like or be able to remember. Hopefully, not too much harm will be done to copyright law, such as a requirement to provide database protection, term extension or controls against parallel imports or counterproductive features of EU copyright law.

11.    The rhetoric and tactics of the copyright debate will get even worse, though this barely seems possible.  The amount of deliberate  disinformation, clearly ghost-written and inaccurate op-eds, misinformed editorials in major mainstream news papers, name calling, ad hominem invective, moral panic terminology, hysteria and attempts by lobbyists to hijack balanced fora in which they do not belong just keep getting more prolific and distasteful.

12.    There may be legislation in the USA enabling grey marketing and parallel imports where copyright is incidental to the product involved or is merely an element of packaging or labelling, whether it be a Toblerone chocolate bar or an Omega watch. We may also need clarification in Canada, and Bill C-32 as it now stands, may be a part of the problem.

Remember, these are only predictions. And, as lawyers are wont to say:

E. and O. E.
(Errors and omissions excepted)

Happy New Year.


Public Domain Day - 2011

Happy Public Domain Day ("PD") in Canada. I'm sure that the redoubtable Wallace McLean will soon tell us what we have to be thankful for, notwithstanding attempts such the thankfully failed  Lucy Maude Montgomery Act in 2003 to the contrary.

Update: Here's Wallace McLean's annual treasure trove of PD erudition.

Lest we forget, in the USA and EU, it's a very different and sad story. The US has gradually been extending its copyright term at the behest of corporate lobbyists. Indeed, in 1998, Disney led the successful campaign done in the name of the late Sonny Bono to go to life + 70 years - with a mass extension resulting effectively  in a moratorium on additions to the public domain until at least 2019.

Actually, his widow wanted even more. She said:
Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. . . . As you know, there is also [Motion Picture Association of America president] Jack Valenti's proposal for the term to last forever less one day. Perhaps the Committee may look at that next Congress
All to protect Mickey Mouse.

It seems that Disney, having itself perfected the art of purloining the public domain for profit, wanted to ensure that its business model could not be duplicated by new competitors.

This is ironically analogous to the entire US Government approach, since certainly up until 1909 and in some ways up until 1976 and even beyond, the USA has been a relatively very low protection nation, with all sorts of shortcomings in terms of protecting actual creators of any nationality and all foreign copyright owners. Some of these shortcomings still exist, such as the work for hire doctrine and the absence of moral rights protection other than for visual works.

Ironically, the USA has far more generous fair use provisions than does Canada - at least compared to the current state of jurisprudence regarding "fair dealing" according to one panel of the Federal Court of Appeal in upholding the narrow view of the Copyright Board in the CMEC K-12 decision. CMEC is seeking leave to appeal this decision to the Supreme Court of Canada. .

Anyway - here's a couple of must read items from the USA today on Public Domain Day:

Here; and  Here