Sunday, November 30, 2014

Peter S. Grant’s Resource for Copyright Board Practitioners and Watchers

I occasionally do book reviews when I come across or am given a review copy of something that is useful, interesting and makes a positive contribution to the IP literature – either in an academic or practical way, or preferably both. I avoid commenting on books that are disappointing, although that may become appropriate at some point.
Peter S. Grant has been a pioneer and a leader in Canadian communications law in the broadest sense of the term for many decades. Indeed, I took a course from him as an undergraduate in law (this was well after the invention of talking pictures but a long time before Netscape and Pandora) that introduced me in many ways to the wonderful but often bewildering world of copyright and communications law. One of his many enduring and endearing contributions was to show me and countless others how there are complex interconnection between various disciplines such as broadcasting, telecommunications, tax, competition, advertising, copyright and other areas of the law – not to mention the technology and business developments that keep courts and lawyers busy. These are not separate silos. For a long time, he and Bob Buchan organized the biennial Law Society of Upper Canada conferences that explored these connections, and I was among those who have been honoured to be a speaker in this series.

He has recently published the second edition (the first was in 2010) of his work entitled Communications Law and the Courts in Canada 2014.

The book focusses on judicial decisions related to the CRTC and the Copyright Board, as well as many relevant decisions involving constitutional, criminal law, freedom of expression, election law, etc. My comments are solely on coverage of copyright law and the Copyright Board.

His parameters of inclusion for copyright judicial decisions are:
  • All judicial decision re copyright liability of radio and TV stations, cable and satellite distribution undertakings, telecommunications carriers, wireless companies and ISPS
  • All judicial decisions regarding judicial review of Copyright Board
  • “all copyright cases dealing with communications companies”
  • Coverage from long, long ago to the beginning of 2014
Given these parameters, I was somewhat surprised not to find certain notable copyright judicial decisions, for example:

·         Leuthold v. Canadian Broadcasting Corporation, 2012 FC 748 (CanLII), Plaintiff sought $22 million from CBC for inadvertent six time re-use  of some of her still photos from 9/11 in a segment of 18 seconds out of a 90 minute documentary for which she had originally been paid $2,500. The appeal was dealt with earlier this year.
·         Warman v. Fournier, 2012 FC 803 (CanLII), This was an action against a website owner and the National Post – involving fair dealing, copyright in titles, etc. The Defendants/appellants withdrew their appeals on the eve of the hearing. This case could just as easily have involved broadcasters as a newspaper and, in any event, there was definitely an “online” aspect to it.
·         Cinar Corporation v. Robinson, [2013] 3 SCR 1168, 2013 SCC 73  was a landmark decision from 2013 in the Supreme Court of Canada concerning the meaning of “substantial part” in the context of a television program
·         National Gallery of Canada v. Canadian Artists’ Representation, 2013 FCA 64 (CanLII) This concerned whether was as formerly the Canadian Artists and Producers Professional Relations Tribunal had jurisdiction over what appeared to be a very obvious case for the Copyright Board, but which did not go that route. This decision was subsequently reversed in 2014 by the SCC.
·         Robertson v. Thomson Corp., [2006] 2 SCR 363, 2006 SCC 43 (CanLII), Landmark copyright class action case in SCC involving reproduction in databases, involving compilations, collective works, etc. 
·         Compo Co. Ltd. v. Blue Crest Music et al., [1980] 1 SCR 357, 1979 CanLII 6 (SCC). This concerned the meaning of “make” in the context of a sound recording. Of interest to all intermediaries in the chain of broadcasting, distribution, publishing etc. 
·         CCH Canadian Ltd. v. Law Society of Upper Canada [2004] 1 S.C.R. 339, 2004 SCC 13, which dealt with fair dealing by the library of the Law Society for its patrons in the context of faxes and photocopies, but which is a the “magna carta” in many respects of “users’ rights” generally and fair dealing in particular – and which could be cited in many situations involving “communications” companies. 

Perhaps these examples don’t fall literally within the parameter of “dealing with communications companies” which the book indicates includes “radio and television stations,, cable and satellite distribution undertakings, telecommunications carriers, wireless companies and internet providers, as well as the postal services”. But it is increasingly difficult to tell the difference anymore between broadcasters, newspapers, print publishers, and producers of films, sound recordings, etc.  Indeed, all of these types of activates are becoming increasingly converged and some companies seem to do most or all of them. So, as useful as this book may be, it should not be considered totally exhaustive with respect to every potentially relevant judicial decision involving Canadian copyright law and communications – considered in the widest sense. Moreover, given the paucity of Canadian copyright jurisprudence, every notable decision tends to get cited wherever possible. 

There is a brief discussion in §10-8 entitled “How Have the Agencies Faired in the Courts?” Mr. Grant states at the outset this brief discussion that the Board was “overruled” in its decisions concerning the definition of “audio recording medium” on two occasions. This is true as far as it goes, but it actually should go further because the FCA also  all but overruled itself regarding an earlier decision in which it did uphold the Board on the meaning of “audio recording medium”.  Mr. Grant then adds an editorial comment that these Federal Court of Appeal decisions “have created a significant and regrettable loophole in Part VIII of the Copyright Act”. Naturally, having made winning arguments in these two cases in the Federal Court of Appeal (See here and here) and notwithstanding the unusually outspoken views of the former Chair of the Copyright Board, Justice William Vancise, I would characterize the result rather differently.  But I would be the first to defend Mr. Grant’s right to make such editorial comments, having made the occasional editorial comment myself. That said, such comments do require some elaboration and he is perhaps a bit too circumspect and perhaps sympathetic overall to the Board in terms of some of its other reversals and corrections in the Federal Court of Appeal and the Supreme Court of Canada. With respect to “fair dealing”, while the Board’s decision in the Alberta case was indeed sent back for reconsideration, given the narrow way the appeal was framed and the way relief was sought,  it was also effectively and fundamentally overruled in its approach and even its fact finding regarding fair dealing in the educational context. 

Perhaps, in a future edition, Mr. Grant will include an explicit and reasonably detailed discussion of “standard of review’, although this is admittedly an elusive and even ineluctable “sempiternal” issue that could consume a whole volume in itself. Nonetheless, it is the inevitable starting point of any judicial review exercise.

The bulk of the book consists of concise but still useful and sometimes even rather detailed summaries of 569 cases that fit the stated parameters of the book. These are far better than most headnotes and quite useful in some cases as a departure point for further research on related cases or issues, for example the one dealing with the Supreme Court of Canada decision in in the Province of Alberta case. (§55-556).

There is, of course, an alphabetical index  of decisions for those who already know what they are looking for.

Mr. Grant provides a useful topical index in §§70-2 to 70-4 of the various copyright decisions that he has catalogued and summarized. However, the index could use more detailed and comprehensive. For example, some important and even hot-button issues as “evidence” and “jurisdiction” or “retroactive” are not to be found.

This book, which is privately published by Mr. Grant’s firm, McCarthy Tétrault and available here, is going to be very useful and a potential time saver to anyone concerned with the work of the Copyright Board and the CRTC. As noted above, I’m not sure that it’s 100% comprehensive and exhaustive in what it purports to cover – but, with that caveat, its close enough to be a very good starting point for research that needs to be done by practitioners who work before the Copyright Board. Doubtless, the same would hold for the CRTC. About 30% of the book consists of statutory material, which is easily and freely available online – but it’s going to be handy at times to have this material in one place. There is a lot of “value added” and convenience that comes with this book. At $90, the book should pay for itself quickly for many practitioners.

The use of this book, in conjunction with the Board’s website and the “free” databases of the Federal Court of  Appeal, the Supreme Court of Canada and could  save interested scholars and practitioners quite a lot of time and their clients a lot of money. Policy makers in the government and some assiduous academics will also find it to be a very useful and productive investment. Bedtime reading, however, it is not.  Still, I will look forward to the next update in a few years.

A very simple further step that the Copyright Board could easily provide in the meantime, which would be even easier now with use of this useful book and which is long overdue, would be the provision of links on its website to the judicial review decisions by the Federal Court of Appeal of the Board’s own decisions and any resulting decisions of the Supreme Court of Canada, when the case gets that far. The Board already has a useful database of all its own decisions from 1990 onwards. With the help of Mr. Grant’s book and the “free” databases mentioned above, this very easy exercise should not require more than a few person days at most of time on the Board’s part and could be readily integrated into the Board’s existing website template and design. There are not that many of these decisions, but they are extremely important to copyright practitioners and scholars. This would save researchers considerable time and effort in the result. This would accomplish much to make the rather opaque state of jurisprudence on the Board’s corpus of decisions much more accessible. With the Board’s four full time lawyers and dozen or so other full time employees (not counting its GIC appointed members), hopefully this is something that we can expect sooner rather than later.


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