On 16/6/2023 I was honoured to give a keynote "Valedictory" address to the ABCCopyright conference. Here are my slides. I hope I have encouraged some "militant librarians". Get ready for a major counterattack in fall re mandatory tariffs & fair dealing.
HPK
The Copyright Board’s recently posted 2021-2022 Annual Report (“Report”) covers the period from April 1, 2021 to March 31, 2022.
What does this full-page collage with
this uncredited photograph on page 13 the Board’s Report possibly have to do
with Canada’s Copyright Board? I, for one, have no idea. But it takes up a
whole page, along with several other diverting and uninformative photographs in
this Report that is overall mostly devoid of any actual useful information.
That’s regrettable as the deadline for
objecting to proposed tariffs looms and potential objectors have to decide
whether or not to become vulnerable to potentially extremely intrusive and
invasive interrogatories, expert witness costs, and huge legal expenses to deal
with tariffs that the Supreme Court of Canada (“SCC”) has confirmed with crystalline clarity are NOT MANDATORY.
More on this below…
The Chairman’s “Message” to the Report notes
that:
The 2021‒2022
fiscal year was also marked by the Supreme Court of Canada’s decision in York v. Access Copyright,
an important decision that clarifies, among other things, the scope of
tariffs approved by the Board. This decision will certainly have an impact on the Board’s ability to
deliver on its mandate, but it will be
some time before we see the concrete results of this decision, including the cumulative effect of
the decision and the changes made to the Copyright Act in 2019.(highlight
and emphasis added)
The York decision from the Supreme
Court of Canada (“SCC’) is, of course, the elephant in the room at the
Copyright Board. It is difficult to comprehend what “concrete results” of the
York decision the Board does not understand. The SCC clearly ruled that:
Access
Copyright’s tariff as approved by the Copyright Board is not mandatory for
users
It was
unnecessary and inappropriate for the Courts below to issue a declaration about
fair dealing in these circumstances
Nonetheless,
there were serious errors in the Courts below noted concerning their
pronouncements about fair dealing, e.g. re “aggregate” copying.
While there may be more “results” in
the future, the above is already as clear as can be. The SCC decision more than
“clarifies, among other things, the scope of tariffs approved by the Board”. It
unambiguously declares that Board tariffs for Access Copyright are NOT
mandatory and not enforceable and makes important statements about fair dealing.
BTW, I was honoured to have played a very major role and to have made the prevailing arguments as
counsel for my esteemed client CARL in the SCC in getting
this result.
These are rulings that the Board must follow – now and not if and
when the Board finally can “see the concrete results of this
decision”. The Board may not like the decision – but the Board
is bound by it. Even if the SCC’s statements about fair dealing are technically
“obiter dicta” under the circumstances, SCC obiter dicta –
especially when it is so pointed, on point, and precise as in the instance – is as good as
law.
In the past, the Board has at times appeared
to be hostile to the SCC and Federal Court of Appeal. One had hoped that this had
passed. I wrote here in 2009 about how former and then sitting Board
Chair Justice William Vancise expressed his frank views.
The Board cannot even bring itself to
use the “M” word, i.e. “mandatory”, in relation to its tariffs - or more precisely “not mandatory” - in this
Report – which was the essence of the SCC case.
Indeed, the only place the Board uses
the “M” word is:
“mandatory training required as
part of organizational measures to prevent and address workplace harassment and
violence”
The Board is no doubt hoping, along
with Access Copyright and other collectives and content owner lobbyists, that
the Government will try to undo the SCC’s York ruling and curtail fair dealing
in the educational sector. That, of course, would be an enormous legislative,
political, and legal mistake that will likely result in costly litigation and
uncertainty for years to come. Of course, the Board would probably use such
uncertainty to justify more deflection and delay and, no doubt, to demand and
even bigger budget so that it can analyze the obvious.
Interestingly, although the period of the
report ends on March 31, 2022, it does NOT mention the ESA v.
SOCAN “making available” case that was argued
in the SCC in January of 2022 and decided on July 15, 2022. That result was another existential body blow
to the Copyright Board, holding, in effect, that the Board got it very wrong in
its ill-advised and very wasteful venture into international law and that the
Board “will be held to the “correctness” standard of review when it comes to interpreting the Copyright Act because it shares
concurrent first instance jurisdiction with the Superior Courts. The Board will
be given no deference for being “reasonable” in its interpretation of the
substantive provisions of Copyright Act. It must be correct.
Importantly, this is the first new category of correctness review since the
landmark SCC Vavilov decision.
The Report contains some interesting
language about how the Board is “constrained” by decisions of the Courts. It
would have been more accurate and more respectful to say that the Board is
subject to and guided by rulings of the
Courts – both in the form of judicial review and other decisions that may call
into question the reasonableness or even the correctness of the Board’s
decisions – as was the case in the York University litigation, in which Access
Copyright sought – ultimately unsuccessfully – to enforce the Board’s tariff
ruling.
If the Board is to serve any useful
purpose and to have a long-term future, it would do well to focus on its
mandate and to stay in its lane – which is all about and only about:
I have always said that there are
tariffs that are “de facto” if not “de jure” mandatory – such as
those of SOCAN and Re:Sound. If you operate a radio or TV station, there is no
other way to clear these music rights other than to avoid the process by
playing only public domain music and public domain sound recordings. Those
tariffs have mostly been fairly reasonable because there has been sufficient
competent organized opposition over the years.
On the other hand, inexperienced
objectors with insufficient resources to spend easily five and even six or
seven figures opposing a tariff will eventually be worn down by the inevitable
irrelevant and oppressive interrogatories that the Board has shown little or no
commitment to curtailing. Even the AUCC (now Universities Canada) was forced to withdraw from the
Access Copyright tariff case in 2012, although it might have handled the whole matter very
differently.
The major collectives have only limited
interest in making the Board better. It seems that their limited interest is only
in making the Board a faster and cheaper place to do business.
Many users are now going to be asking
themselves whether there’s any point in getting into the quagmire and quicksand
of a Copyright Board tariff proceeding at potentially enormous expense and opening their doors to offering
collectives such as Access Copyright a potential treasure trove of
interrogatory material. If the Board somehow manages to come up with a tariff
that offers good value, a user can then sign a licence based upon it.
Otherwise, for example with Access Copyright, the user can ignore the tariff
and get licences, when needed, in other more efficient ways for far better
value – which is precisely what so many institutions have been doing for nearly
a decade with total vindication since the Access Copyright’s “tariffs” have
been declared as NOT MANDATORY by the SCC in 2021.
Collectives have almost always done
very well at the Board, though not so much in the Federal Court of Appeal and
definitely not so much in the Supreme Court of Canada. Board proceedings have
almost always been very profitable – with the costs being borne by members and
the public.
In the past, tariff proceedings were
usually a bankable cash cow for collectives. One notable but apparently
isolated exception was Access Copyright’s attempt to get lots of money from provincial
governments, outside Quebec. I wrote about this at some lengthy back in 2015:
To
recapitulate, the Board awarded a tariff of 11.56 ¢ per FTE (full time
equivalent) for the period 2005-2009 and 49.71 ¢ per FTE for 2010-2014. That’s
less than 1% and about 2% respectively of what AC asked for. According to the Board, the tariff will
generate a total of only about $370,000 over its ten year period – which is
likely only a small fraction of the costs involved in obtaining the tariff.
Here is that decision,
interestingly with Justice Vancise as chair of the panel, which hopefully will
be kept in mind by all concerned as Access Copyright attempts to impose a tariff for 2024-2026 for
post-secondary institutions as follows:
(a) $15.65, if
the educational institution is a university; or
(b) $6.01, if
another educational institution.
The 2021-2022 Report contains virtually
nothing new or interesting. Is all about management platitudes, e.g.:
Expected
Outcomes
The Board
strives to be a credible institution, well-respected both by the creators and
the users of copyrighted material, because of the efficiency of its operations
and its unique expertise in copyright matters.
It has adapted
and will adapt with resilience and agility to the challenges posed by a
constantly evolving legal and economic environment, whether at the national or
international level, while offering high-quality support to parties and the
public requesting its services.
The never ending tinkering with
procedures – such as requiring “grounds” for new tariffs and objections at an
early stage – is simply obvious and won’t change anything. The requirement for
“fair and equitable” tariffs is hardly new – what else has the Board and its
predecessor supposedly been doing for the last eight decades?
Bottom line:
The vast majority of the “tariffs”
approved by the Board are no brainer unopposed rubber stamp exercises that
somehow still take a very long time.
The unlocatable owner regime is an
embarrassing waste of time and resources. Hopefully, it doesn’t still consume a whole FTE resource as then Chair William Vancise confirmed in
2014. With only one inconsequential
rulings visible in the 2021-2022 reporting period, it would be difficult to
understand how this took more than a very few hours at the most to deal with.
The Copyright Act could be amended to deal with these increasingly rare
situations as an exception along with other specific exceptions.
The Board is continuing to try to
justify itself as an important and essential quasi-judicial tribunal, which it
once was. However, it has failed to clearly get beyond the “dysfunctional” description
conferred by a Senate Committee in 2016 and continues to be an expensive and
unproductive though paradoxically high profile presence in the Canadian
administrative tribunal landscape. It has held only one hearing in the last
five years.
Its proposed new Rules of Practice and
Procedure will likely accomplish little or nothing – other than to provide an
excuse for the Board to demand an additional $1 million a year to its already inflated
budget:
The costs of
the proposal are expected to be less than $1 million annually. While
Parties would be required to provide information earlier on in proceedings, the
amount or type of information required from Parties would be the same as under
the current Model Directive. (emphasis added)
If the Board is to have any credibility
and serve any useful purpose going forward, it needs competent, independent and
balanced management with legal expertise in both civil and common law and – of
course – in copyright law. The Board’s Members should, of course, reflect these
requirements.
It’s really too bad that the ISED
Minister @FP_Champagne seems
to be apparently 100% missing in action on what is going on here – although
it’s 100% his responsibility.
Happy Holidays to one an all!
HPK
(Merriam
Webster)
There is a
ticking time bomb buried deep in the 2022 Federal Budget.
It is deviously hidden at page 274 in Annex 3 in a manner so as to avoid detection,
debate and the democratic process itself. This is contrary to a basic campaign
promise Justin Trudeau made in 2015. It saddens me to say that he and Finance
Minister Chrystia Freeland, both in process and substance, appear to have caved
in to greedy lobbyists to the detriment of democracy.
In 2015, Justin Trudeau made a campaign promise to do better
than Stephen Harper, who it will be recalled gave away an extra gratuitous 20
years of copyright protection for nothing in return to the American recording industry
in an omnibus bill just before he lost the 2015 election:
We
will not resort to legislative tricks to avoid scrutiny.
Stephen
Harper has used prorogation to avoid difficult political circumstances. We will
not.
Stephen
Harper has also used omnibus bills to prevent Parliament from properly
reviewing and debating his proposals. We will change the House of Commons
Standing Orders to bring an end to this undemocratic practice.
Amendments
to the Copyright Act
In
Budget 2022, the government proposes to introduce amendments to the Copyright
Act to extend the general term of copyright protection from 50 to 70 years
after the life of the author as agreed under the Canada-United States-Mexico
Agreement.
The
government is committed to ensuring that the Copyright Act protects all
creators and copyright holders. As such, the government will also work to
ensure a sustainable educational publishing industry, including fair
remuneration for creators and copyright holders, as well as a modern and
innovative marketplace that can efficiently serve copyright users.
This is a flagrant
yet stealthy insult to democracy. By using omnibus budget implementation
legislation, there will be nothing but token and extremely little if any debate
or parliamentary scrutiny on these measures. Any hope of opposition is lost
since Canada no longer has a viable opposition party that can do its job in a
minority parliament. The NDP’s ill-conceived three year peace, silence and non-aggression
pact with Justin Trudeau, which has likely guaranteed its own irrelevance and perhaps
even oblivion in the future, will ensure that there is no effective opposition
to this budget or the massive omnibus implementation bill that can soon be
expected.
All Canadians,
ranging from pre-schoolers to the most senior scholars and creators, whether
interested in innovative science and research or just plain fun reading, music
listening, film or art enjoyment will be deprived of access to the “public
domain” for an additional 20 years (meaning life + 70) going forward. Assuming
that the law takes effect on January 1, 2023, that would include the likes of foreign
luminaries such as Noel Coward, Pablo Picasso, J.R. Tolkien, Leonard Bernstein
and John Lennon and Canadian icons such s Northrop Frye, Yousuf Karsh, Marshall McLuhan,
Lester B. Pearson, and Pierre Trudeau himself. It will be good news for certain
publishers, other copyright content owners such as foreign movie and music
industry multinationals, collectives and their executives, lobbyists and – of
course and as always – lawyers for all of the above. It will cost the Canadian
public at least about $474 million a year with a present value of about $4.176
billion, based upon my admittedly facile extrapolation to the
Canadian context from a careful study conducted for the Government of New
Zealand in 2009 in contemplation of the ill-fated TPP.
This amendment
will be a one way ratchet that cannot conceivably ever be undone. As framed in
the budget, it ignores the recommendations from many experts including Prof.
David Lametti, as he then was before he was elected and became Minister of
Justice, and Maria Pallante, the former Register of Copyrights in the USA, that there be mandatory registration to take
advantage of the 20 year extension. This would clear away dead wood and still
allow commercial interests to exploit works that still have a market value.
Here’s my submission from the so-called consultation
process, which has
apparently been ignored along with those of many other well-known copyright scholars.
If the Government can’t figure out how to implement a registration system at
this time, it can at least enable the enactment of registration regulations by
the Governor in Council. Such a deferral of details does not require rocket
science.
The hidden budget time bomb signals that we can expect this
and potentially other even worse copyright measures to be included very soon in
an omnibus bill that will receive virtually no parliamentary scrutiny and be
immune from the usual bulwarks of democracy that Justin Trudeau and Chrystia
Freeland have deemed dispensable. This is nothing if not ironic and frankly
shocking – though hardly surprising given Trudeau’s past record.
What is even worse in the copyright proposals in Budget 2022
is the second paragraph that suggests, in coded but fairly explicit terms to
those in the know, the promise to remove “education” as a recognized fair
dealing purpose in s. 29 of the Copyright Act. It sadly seems that the
responsible Minsters Champagne & Rodriguez are unaware that “teaching (including multiple copies for classroom use), scholarship, or research”
has been hardwired
into American copyright legislation as an essential example of “fair use” since 1976. They are probably
unaware that three decisions of the Supreme Court of Canada since 2004 on fair
dealing were rendered before “education” was explicitly included in s. 29 of
the Copyright Act in 2012. I was
involved in one of these. They are probably unaware that the repertoire of
Access Copyright, who has been doing most of the whining, has very little place
in Canada’s colleges and universities. Engineering, accounting, psychology and
almost all other post post-secondary students are not required to read Margaret
Atwood.
But that’s not all, as they say on TV commercials. Included
and still even worse and nearly explicit, given the context, is the promise to make Copyright Board
tariffs mandatory for users. All of this
would undo two Supreme Court of Canada decisions from 2015 and 2021 in which I also
had a direct and influential role as counsel working with Prof. David Lametti,
as he then was, along with Prof. Ariel Katz in the first case (CBC v. SODRAC). CARL was my client in the later case of York v. Access Copyright where our intervener arguments prevailed.
The result of such an amendment would be an affront to the
Supreme Court and a century or more of legislative history. This would roughly be
the equivalent of legislating that nobody has the right to get from Ottawa to
Toronto except by flying on Air Canada – unless they pay Air Canada’s fare for
an all-year Canada-wide pass or even for
a multi-year period even if they never actually travel from Ottawa to Toronto
that year. In turn, that fare would be set by a small, very expensive, very inefficient,
and extremely dysfunctional Federal tribunal which takes as much as a decade to
render usually retroactive and frequently decisions that are routinely reversed
in the courts. In this case, that would be the Copyright Board, which was deemed “dated, dysfunctional and in dire need of
reform” by a Senate committee in 2016 and which has seen no significant improvements
since then despite a very large increase in its budget. Indeed, the Board has
not even held a hearing in almost five years since September, 2017 with nothing
scheduled until October 18, 2022 and its website has become even worse, despite
enormous expenditures.
This
will not be the first time that Trudeau has played
this Harper trick.
Bill C-86, which was given first reading on October 29, 2018, was 884
pages long. It was an omnibus budget implementation bill that touched
innumerable issues unrelated to an concept of “budget” and amended dozens of
acts unconnected with the budget. It caused much mischief in trade-marks law
and launched the College of Patent and Trademark Agents, an expensive solution
in search of a problem imposed with great expense upon already highly regulated
law firms for no good reason. In turn, even C-86 was not the first Liberal omnibus bill that that broke
that important campaign promise. It followed Bill C-74 earlier in 2018, being the first
budget implementation bill in that sad
year.
Sadly, at this time, the NDP has muzzled itself. And the
Conservatives can hardly be expected to criticize the same undemocratic
methodology that they themselves perfected under Harper.
It is time for Canadians and the organizations that profess
to be concerned with education, research, culture and innovation in Canada to demand
democracy and transparency when it comes to potential enactment of major
deleterious legislation that is so detrimental to the public interest.
Prof. Adam Dodek, the former Dean of Common law at the
University of Ottawa, has written an important article about the legal, including constitutional,
issues that could potentially arise from the use and abuse of omnibus
legislation.
It is absolutely essential in an age where democracy is under
threat everywhere, potentially even in Canada, to ensure that legislation is
dealt with democratically and not be thrown under the omnibus bus.
HPK
PS: Here's a very important open letter to Ministers dated April 13, 2022 from 25 top IP scholars about these issues and the process.
Here are my comments about the Government's Online Intermediaries consultation.
May 31, 2021
To:
Hon.
F-P Champagne, P.C., M.P., Minister of
Innovation, Science and Industry
Francois-Philippe.Champagne@parl.gc.ca
Hon.
S. Guilbeault, P.C., M.P., Minister of Canadian Heritage
Hon. David Lametti, Minister of Justice
copyright-consultation-droitdauteur@canada.ca
(In PDF and Word)
Re: Consultation on “Internet Intermediaries”
The following comments are in my personal capacity and do not necessarily reflect the views of any clients of my firm or my firm itself.
1. This involves more rhetoric about “web giants”. This is related to and a further extension of the ultra-controversial Bill C-10. See page 5 and FN 3. This is all about “dirigiste” politics in the name of “culture”.
2. There
is no sufficiently precise or even useful definition of an “online
intermediary”. For example, could it include universities, colleges and
libraries? See Executive Summary and Section 3.1.
3. The
Equustek judgment of the Supreme Court of Canada (“SCC”). should not be relied
upon any more than necessary. It was based upon very particular facts and was
not grounded in copyright law. Google’s submissions were arguably problematic. As to the GoldTV case. See page 7 and FN 13 -
which wrongly states that GoldTV has been “granted leave to appeal”. The appeal
was as of right. Teksavvy was the appellant and not GoldTV. These misstatements
frankly raise concern about the quality of the legal analysis in this paper.
While Teksavvy recently lost this appeal, it could end up in the SCC where it
may indeed be reversed.
4. The
paper simply fails to mention the “making available” litigation – which will be
heard by the SCC sometime next year.
5. There
is a very questionable and simplistic take on US, EU and Australian law on pp.
8-9.
6. Sections
4.2 and 4.3.2 show yet another Government effort to make work for the Copyright
Board and boost its budget even further.
7. Option
4.2 is a directly aimed at making tariffs mandatory. See page 14-15 and FN47 –
which at least acknowledges the currently pending Access Copyright v. York University SCC case – but is oblivious to
the issues involved.
8. “Extended
collective licensing” should be anathema for Canada. This concept is a non-starter
in the USA and makes sense only for small socialist countries such as the
Nordic countries. However, it appears that lobbyists driven by vertically
integrated interests are pushing it in Canada. Compulsory licensing is also
anathema for Canada. See page 14.
9. What
about freedom of expression – which is looming large in the C-10 debate? This
is barely mentioned and not analyzed.
10. Criminal
law has no place in this discussion. See s. 4.4.2
11. Appendix
“A” gives short shrift token recognition to “Broader Policy Issues”. See page 21.
Conclusions
1. This
is unnecessary, untimely and wasteful “consultation theatre” in the words of
Michael Geist.
2. The
Government has not even published the submissions on its first term extension
paper, which were provided two months ago. There is no good reason for this.
3. The
Government should concentrate on moving forward from the INDU Committee Report
– and not embarking on chaotic and diversionary distractions.
4. The
Government should stop attempting to make work for the Copyright Board. If the
Board is to serve any useful function, it might do so by developing tariffs in
the public interest that could earn acceptance in the market place based upon
reasonable terms, conditions and rates and not by threats and compulsion. Any
attempt to make tariffs mandatory through legislation will be extremely
controversial and legally problematic.
5. The
Government should let current court cases work their way through the judicial
system – before it attempts to interfere in a heavy-handed, badly researched,
unnecessary and premature manner.
Yours very truly,
"HPK"
Howard P. Knopf
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