The CBC – Canada’s National State Subsidized Broadcaster – Confronts in Court the Conservative Party and Copyright Law 10 Days Before the Federal Election: What Could Possibly Go Wrong?

It would be a shame if this ad the CBC had removed got a bunch of views. pic.twitter.com/tUOMSFqpKV

— HoCStaffer (@HoCStaffer) October 12, 2019

                                           (Catherine Tait/CBC)

(Jennifer McGuire/CBC)

Not for the first time, the CBC – Canada’s 83 year old, usually respected even if frequently controversial taxpayer subsidized broadcaster – has embarrassed itself badly on the copyright front. This time, however, it has outdone itself in terms of controversy by suing one of Canada’s two main political parties for copyright infringement just 11 days before a national election. It has taken, IMHO, an inexplicable and frankly unsupportable position seeking to prohibit the use of short excerpts from broadcast footage in the course of election campaigns. It will be recalled that in 2014, Jennifer McGuire, who is apparently still employed by the CBC in the same very senior position as General Manager and Editor in Chief of CBC News that she has held since May 2009, led the charge with a “consortium” to try to stop the use of such excerpts in political campaigns. The thought was even entertained by the government of the day led by Stephen Harper to pass legislation explicitly allowing for such usage by political parties, notwithstanding that I and others warned that that such legislation was not only unnecessary but could potentially and likely even be very counterproductive. I wrote about all of this almost five years ago just over a year before the last election, including how Rick Mercer demonstrated his sadly ironic apparent ignorance about copyright law.  It’s déjà vu all over again, except that this time it’s much worse.

In any event, Ms. McGuire is still in charge of the news network at CBC and is the apparent guiding mind behind what is likely to go down as one of the most misguided moments in the history of the CBC in terms of both journalism and the law and may well prove to be a defining moment in the increasingly possible demise of the CBC – especially if the Conservative  Party of Canada wins the election, which this latest fiasco may ironically help to facilitate. Ms. McGuire is also CBC’s representative on the CDPP (Canadian Debate Production Partnership), which managed to present two French debates and only one English debate (go figure!).

The CBC has unaccountably and inexplicably sued the Conservative Party of Canada for a campaign video, visible above, that includes several short excerpts (only some of which are from the CBC) from various broadcasts, consisting of at most ten seconds in each case. Here is the remarkable Statement of Claim, which could serve as good teachable moment for any law school copyright or civil litigation class. Here’s a hint – why ask for an interim and interlocutory  injunction where there is obvious doubt as to whether there is a even a serious issue to be tried just 10 days before the interim injunction would be moot anyway against activity that has already admittedly ceased, and where there is no credible evidence of irreparable harm arising from practices that are decades old? I had thought that the recent Statement of Claim from Allarco about which I commented with controlled restraint was “unusual”, but this one is in some ways even more so.  

The CBC is apparently oblivious to the following absolutely basic principles of copyright law in Canada:

-        the copying of less than a “substantial part” of material simply does not engage the operation of the Copyright Act; 

-        even if the amount copied is somehow “substantial”, and even if the plaintiff owns the copyright, the fair dealing provisions of the Copyright Act are “always available” and must be given a “large and liberal interpretation”. And by liberal, I mean the same sense as the Supreme Court of Canada, which is obviously not in the partisan sense. See, of course, CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13; and,

-        Fair dealing purposes include those of research, education, criticism, or review – any or all of which may be applicable in this case – but which need not be addressed if there is no “substantial” copying in the first place.

Michael Geist has succinctly parsed and measured the CBC’s possible claim in key quantitative and factual respects:

One of the clips features two short segments (total of ten seconds) of Prime Minister Justin Trudeau at a town hall event. There are no CBC journalists involved, though the town hall aired on the CBC. Displaying ten seconds from a town hall that ran over an hour hardly qualifies as a significant portion of the work and again does not implicate CBC journalists or journalism.

The remaining three clips do include CBC journalists. One involves four seconds of Andrew Coyne speaking on the At Issue Panel on conflict issues. Rosemary Barton appears in the clip (as does Chantal Hebert) but says nothing. The clip should qualify as fair dealing, but it is difficult to see what the fuss is about given that Barton does not even speak in it. Another clip involves five seconds of John Paul Tasker appearing on Power and Politics discussing support to Loblaws for energy efficient refrigerators and the last one features five seconds of Rex Murphy talking about moving expenses. The clips are short and demonstrate that CBC journalists engage in legitimate critique of government policies and action. That isn’t bias, that is doing their job. Indeed, all these stories were widely covered in the media and there is nothing particularly controversial about what is said in the clips. (highlight added)

So, if Michael’s quantitative and other factual analysis is right, the Copyright Act isn’t even implicated because the copyright is not “substantial”, we don’t even need to worry about fair dealing, which, as Michael suggests, would likely be resolved in the Conservative Party of Canada’s favour. It’s very important in copyright law not to even open the fair dealing debate door unnecessarily or to do so only “in the alternative”  – when such fundamental threshold issues such as the absence of “substantial” copying my suffice to dismiss.

Once again for those who do not know history and thus are condemned to repeat it, the issues raised in this remarkable Statement of Claim are similar to those to those dealt with by the Federal Court of Appeal more than 30 years ago in a case that I have referred to before, namely that of the Federal Liberal Agency Liberal of Canada v. CTV, CBC and Global. In that case, the broadcasters, including CBC,  were actually ordered by the Court to broadcast a campaign ad containing allegedly infringing footage.

The CBC is seeking a permanent injunction and a declaration in addition to an interim and interlocutory injunction, concerning which there is nothing presently visible on the docket. Leaving aside the improbability of any success by the CBC in this matter, there are some possible journalistic, legal and political consequences of this unfortunate litigation that I cannot refrain from mentioning – even though I am neither a journalist nor a pundit nor a partisan in any sense:

-        The decision to name respected professional journalists Rosemary Barton and John Paul Tasker as plaintiffs either involved their consent (in which case their professional judgment would be very questionable) or did not involve their consent, in which case others may be in serious trouble. Putting somebody’s name on a lawsuit has serious consequences and requires their explicit consent. A named plaintiff is liable for costs and is subject to discovery;

-        Ms. Barton and Mr. Tasker, even with the embarrassing sudden about-face of their names being withdrawn from the pleading, are now inevitably compromised in their appearance of journalistic independence and their professional reputations as journalists on the eve of this historic election, unless there is an immediate flat out denial by all concerned that they consented to be plaintiffs along with an appropriate apology, and in which case there is a need for serious, decisive and immediate accountability. We have yet to see such an explicit statement. This statement by Jennifer McGuire and Luc Julien of CBC stops far short;  

-        One hopes that Ms. Barton and Mr. Tasker have good independent legal advice and good backing from their union if it is the case that they were involuntary named or pressured to join in this litigation;

-        The decision to proceed with this litigation,  which is apparently being directed by Ms. McGuire (which is effectively confirmed in this Globe and Mail article from October 12, 2019) must have been approved by Catherine Tait who is the President of the CBC and presumably by the CBC Board of Directors; 

-        If the CBC Board of Directors wasn’t involved in a decision of this magnitude, then, if not, why not? The implications then would be even more serious for all concerned;

-        If litigation of this order of magnitude can be launched without the blessing of the CBC President and its Board of Directors, that would seem to be a fatal flaw in CBC internal management and governance and there must be appropriate accountability;

-        The new President of the CBC has been largely invisible since her appointment well over a year ago, with the main notable exception of her absurd comparison of Netflix to British Raj colonial imperialism in India;

-        Whoever forms the next government needs to think very long and hard about who will be the next president of the CBC when the office becomes open less than four years from now, if not sooner. Likewise, regarding the Board of Directors positions;

-        For the enemies of the CBC, which ironically enough have included many Conservative politicians in the past and no doubt in the present, this move by the CBC is nothing less than a gift from heaven;

-        This ill-conceived lawsuit could very well prove to be the catalyst to a Conservative Party of Canada minority and maybe even a majority government.

-        This episode could be another step towards the CBC’s possible demise, which many would like to see, and maybe even close to the final nail in its eventual coffin, depending on who wins the election;

-        At the very least, nobody can watch CBC coverage of the current election without wondering about the journalistic independence and competence of its senior management; and,

-        All of this is very unfortunate. Despite the downhill spiral of the CBC under the current and previous two presidents, it still has a treasure trove of people, expertise, and archival material and must be saved and resurrected. Bad decisions, such as this litigation, must not be allowed to jeopardize such a legacy and its hopeful future resurrection. Canada without the CBC would be quite unthinkable.

It will be interesting to see if any credible copyright scholars, lawyers, or knowledgeable journalists rally to the side of CBC on this issue. I would be very surprised.

The CBC may be about to learn some hard and potentially very painful lessons about:

-        Copyright law;

-        The Streisand Effect “whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet”; and,

-        Governance of and by a major public broadcaster.

This election is fraught enough without this disastrous distraction. The fact that Canadians now may have reason to perceive doubt about the competence and journalistic independence of their national broadcaster at such a critical time is extremely regrettable.

HPK

PS - Here's the docket.

Possible Fallout From the Copyright Board’s Access Copyright Provincial And Territorial Government Decision

Charles Levy - Wikimedia Commons

There once was a time when proposed inaugural Copyright Board tariffs were virtually bankable assets that would result in the financing of very expensive hearings that almost invariably paid off quickly and many times over – sometimes in the tens of millions or more.  Those essentially guaranteed good times and rich reward days for collectives and their counsel now appear to be over.

Here is my second cut of comments on the Copyright Board’s landmark decision regarding the Access Copyright (“AC”) proposed tariff for provinces and territories, which I reported on shortly after it was announced on May 22, 2015.  No doubt, I and many others will have much more to say another day. Michael Geist is already off to very good start on his blog.

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.

This is probably the longest decision that the Board has ever rendered. It took the Board more than 2.5 years from the hearing to render this decision, which is a very long time – but that’s another matter. To be fair, it is clearly complex. At 184 pages including the index, it is even longer than the monumentally important inaugural retransmission decision in 1990 that was the first and in some ways – at least economically – the most important Board decision ever. The Board then awarded a tariff worth more than $50 million a year 25 years ago – which was several times more than anyone including the proponents ever expected. Even that decision was shorter by six pages than the current decision – which results in the one of the lowest dollar value tariffs that the Board has ever awarded. Interestingly, the retransmission tariff decision was rendered less than five months from the time that the 57 day hearing was concluded in May of 1990 - how times have changed and not for better.

However, the current AC tariff decision may prove to be one of the Board’s most important – precisely because it is so much less than expected and precisely because it clearly is not worth even close to enough to cover the costs of obtaining it. Since it was aimed at all of the provinces and territories other than Quebec, ability to pay was definitely not an issue.

This decision is manifestly different than any other Board decision that precedes it. The writing style is dramatically different. The amount of detail and analytical rigour – both factually and legal detail – is very different. There appears to be more of an “inquisitorial” involvement that indicates that the Board will not simply rely on the adversarial process and will ask its own questions and do its own thinking. Note the post-hearing steps at the behest of the Board. Whatever the reasons, the changes are welcome.

The Board has gone from almost a dearth of legal reasoning and explicit factual underpinning and analysis to possibly the other extreme – which is clearly a preferable excess if one has to choose between the extremes. Whether such a detailed legal and factual analysis of the fair dealing issues (about 50 pages in this case) was really necessary is debatable. But it is definitely interesting and merits close analysis.

Overall, not only in hindsight but at the outset, it seems and seemed fairly obvious that copying done by governments of third party material will usually be for “research” purposes in the same way that copying done by law firms is usually for “research” purposes. And this must, as we all know now by heart, be given a “large and liberal interpretation”. Most of this copying will be for a legitimate fair dealing purpose and meet the further “factor” test. If the Board went overboard on this, it at least shows that the Board has now finally taken to heart the important rulings of the Supreme Court of Canada on fair dealing. Likewise, there’s a nine page discussion of what is “substantial” that covers some important case law including that of the Supreme Court of Canada.

It is definitely good news that the Board appears to have moved beyond comments such as referring to the Supreme Court’s CCH ruling as “the unavoidable starting point” on fair dealing and the Court’s reversal of the Board’s fair dealing analysis in the K-12 Alberta case as “findings of fact”.

Another welcome development is the Board’s recognition that Access Copyright’s repertoire is very limited, that the Board’s previous contortions in the K-12 case to recognize a wider and virtually unlimited repertoire were problematic, and that Access Copyright is not entitled to be paid for the use of works that are not clearly in its repertoire. The Board even commented negatively on AC’s repertoire “lookup” tool, noting that it is not limited to actual repertoire but is based upon AC’s conception of potential authorization.

The Board noted at para 119:

In short, Access considers in its repertoire almost all published works, without regard as to whether there is any relationship between the rights holder and Access.

And further:

[127] In the matter before us, payments have not been made by Access in relation to the copying events captured in the Volume Study, including to those with whom Access does not have an affiliate agreement. Since no payments have been made, no agency relationship could have arisen between the relevant owner of copyright and Access. The argument the Board accepted in K-12 for including works of non-affiliated copyright owners in the determination of the royalty rate is thus inapplicable in this matter.

….

[129] For the reasons that follow, we find that this is not sufficient for us to include copying events where the owner of copyright was not affiliated with Access as compensable for the purposes of determining a royalty rate in this Tariff.

The Board certainly seems to be resiling from its frankly untenable cheque-cashing implied agency theory in the K-12 case. See para 136:

Access can only send cheques, and thus be able to argue for the existence of an agency relationship, in relation to at most 0.005 per cent of copying from works of non-affiliated rights holders. Even if we were to accept the premise that the sending of a cheque by Access in relation to a copying event, and its subsequent cashing by the owner of copyright in the work copied, forms an agency relationship in relation to that particular copying event, it would remain that this would not happen for at least 99.995 per cent of the actual potentially compensable copying of works of non-affiliated rights holders that will occur during the Tariff period.

Clearly, Access Copyright and presumably other collectives must now be able to prove what their actual repertoire consists of and cannot expect to be compensated for repertoire for which there is no adequate chain of entitlement.

What will AC do now?

AC has is clearly “deeply concerned”. It says:

Access Copyright is deeply concerned with the Copyright Board of Canada’s May 22, 2015 decision in the Access Copyright Provincial and Territorial Governments Tariff, 2005-2009 and 2010-2014. The decision certifies a nominal rate for the copying of published works by provincial and territorial government employees and disregards the importance of licensing income to creators and publishers in the digital economy. 

We are currently reviewing the decision and assessing all appeal options.

Access Copyright will almost certainly seek judicial review (an “appeal” in laypersons’ terminology) of the current decision. This will be the expectation and, in one sense, AC would have little to lose. Judicial review is invariably much cheaper in terns if legal expenses than the initial case itself – since normally there is relatively little additional legal research that needs to be done and the record is what it is. It can’t be added to.

On the other hand, AC must assess the very real possibility of confirmation of the Board’s decision by the Federal Court of Appeal and/or the Supreme Court of Canada, if it gets that far –which would be an even far more serious loss indeed for it and which could affect other collectives in many obvious and less obvious ways.  At first glance, such review could be an uphill battle in this instance – because the Federal Court of Appeal and the Supreme Court of Canada are fairly deferential to the Copyright Board overall – and very deferential on questions of fact finding.  In this case, we have 184 pages that are, arguably, mostly about fact finding and number crunching. Even if the Board made some reviewable errors, which is far from obvious at first reading, the result may be only be a very minor adjustment overall, given the great care taken by the Board to determine what copies were compensable and why or why not.

Moreover, any judicial review may attract some interesting potential interventions – some of whom may be far from supportive of AC, as AC is aware from the Province of Alberta case in the Supreme Court of Canada where my intervener client, the Centre for Innovation Law and Policy of the Faculty of Law University of Toronto had a significant and perhaps determinative impact on the result.

Of course, there are other more positive options for AC – which I have suggested before when I debated Roanie Levy almost exactly a year ago at Brock University. (Go to the ~24:30 minute mark).  Maybe AC should recognize that it is consistently losing in the Courts and in the court of public opinion. Maybe it should drop its pending tariff cases at the Copyright Board. Maybe it should drop its litigation against York University, one of its best “customers”.  And, of course, it now has this defeat on its hands from the Copyright Board. And then maybe it can sit down with its community and figure out how to provide a marketable package of useful services based upon voluntary transactional licenses at reasonable rates based upon its actual repertoire.

Access Copyright is not growing. It is struggling to survive. It is spending an astonishing 29% of its revenues on operational expenses – far more than the norm for established copyright collectives. It has an infrastructure and resources that could still be put to good use. But its survival will require much more and something much different than desperately aggressive legal moves and a website makeover. I’m somehow sure that the AC Board of Directors will be giving this much and urgent thought in the weeks, days, and maybe even hours to come.

What will be the Immediate Collateral Effects?

Here are some questions that are inevitably going to be asked:

Province of Ontario:

Why did the Province of Ontario settle in 2011 for $7.50 per FTE (para 33) and agree to a digital deletion provision (para 154)? The Board’s decision refused to include a digital deletion provision and set a price that is only a small fraction of what Ontario agreed to pay. In 2011, according to Statistics Canada there were about 92,710 person employed by the “provincial and territorial government” in the Province of Ontario. This does not include teachers, health care workers, etc. The definition of an FTE employee caught by the tariff apparently varies province by province (see decision, page 134) and may or may not include health care workers, for example. It should not include educators, who are covered by another tariff.

If we take out the population of Quebec, which is not covered by the tariff, the remaining population of Canada is about 26 million. Of this, Ontario counts for more or less half at about 13 million. These figures are rounded off from Statistics Canada. So, it’s probably safe to assume that Ontario has about as many FTEs for AC purposes as the rest of Canada, excluding Quebec.

There about 120,000 FTEs in the rest of Canada, not including Quebec as counted by the Board. (See page 152 of decision). Therefore, that’s probably a safe figure to use for Ontario for FTE purposes, since Ontario’s population is about the same as that of the rest of Canada, not counting Quebec.

And recall that in the last Ontario election, Tim Hudak promised to fire 100,000 Ontario public servants out the 1.1 million he counted. See this article that points out some of the difficulties with determining these numbers. So, to be conservative, let’s assume on the presumably low side that there are 100,000 FTEs in Ontario covered by the license. So, at an overpayment of $7 per year for five years for 100,000 FTEs, we are talking about an unnecessary expenditure of at least $3,500,000 – which is far more than the total liability for the rest of Canada, excluding Quebec, for that period. And that’s probably a low estimate of the Ontario FTEs covered by the agreement. That bad deal expired on March 31, 2015.

True, hindsight is always 20/20. But, even at the time of the Ontario settlement, it was arguably predictable that this was far too generous a settlement in favour of Access Copyright. Ontario had a previously negotiated rate of $3.12 per FTE until 2010, which was determined in 2001 – three years before CCH (decision, para 31). There is lots of evidence on the record as seen in this decision of previously negotiated figures of even less than $3 per FTE in the past and that was BEFORE the CCH case. These figures were known. Obviously, the CCH case presented a strong reason to make the rate even lower after 2004. For some reason, Ontario renewed in 2010 at the same pre-CCH rate of $3.12 per FTE.

Thus, it looks like Ontario settled for an amount that is more than twice its own previously negotiated already arguably too high rate in light of CCH.

So, why would Ontario settle for more than twice the pre-CCH rate seven years AFTER the CCH case? It would be no answer that Quebec was paying more. The Board examined the Quebec situation in great detail and rejected the expensive COPIBEC license entered into by Quebec as a proxy or benchmark for the rest of Canada.

If the agreement that expired on March 31, 2015 has not been renewed, it should be significantly renegotiated. If it has been renewed at the $7.50 rate, at least foreseeably knowing that this decision was long overdue and therefore could come at any time, other questions should arise. In any event, a lot of questions generally might now be asked by Ontario taxpayers about why this costly settlement was entered into and how the Province deals with its copyright concerns.

The AC Post-Secondary Tariff

What will the Board do now about the Post-Secondary tariff, which is stuck between a rock and a hard place perhaps now even somewhere in the twilight zone? It is at once one of the most important files that Board has ever seen, and yet the associations representing universities and colleges (AUCC and ACCC respectively) have inexplicably withdrawn from the hearing, withdrawn their objections and left their members to the tender mercies of Access Copyright and the Board. While it’s obvious that there is more copying in universities and colleges per FTE than by employees of provincial governments, the Board can hardly ignore the methodology and findings in the current case, which raises very similar issues.

The York University Litigation

What will this mean to the York University litigation, which is based upon on the Post-secondary “interim tariff” that arguably should have been challenged at the time by the AUCC and/or  ACCC but wasn’t and now looks even worse in light of this decision? This litigation is based upon the “mandatory tariff” theory and I have expressed concerns about York’s response.

AC’s “Premium” and “Choice” Packages

What will this mean to Access Copyright’s new “Access Premium” and “Access Choice” offerings?  [Why does this sound more like a cable TV package? ;-)] Hard questions should be asked as to why universities should pay $18 per FTE for similar rights that Governments will now be paying less than $0.50 per FTE. That’s a 3,600% difference. While there is undoubtedly more copying per capita in universities than in Governments, it is hardly likely to be 3,600% more. And what effect will these “voluntary” license rates have on the tariffs being sought at the Copyright Board, which are much higher still – i.e. $35 for a university FTE and $25 for other post-secondary FTEs for 2014-1017.

The “Mandatory Tariff” Issue

Finally, what might be the impact on all of the above of any ruling by the Supreme Court of Canada with respect to the mandatory tariff issue,  about which I made submissions on March 16, 2015 on behalf of Prof. Ariel Katz and the Centre For Intellectual Property Policy as interveners? I won’t get into this now because that case is currently pending before the Supreme Court. We may have decision from the Court as early as September or October.

Other Aspects

I and others have recently commented on the future of the Board itself, which is a creature of statute and can be changed or eliminated by statute, and is susceptible to regulations that can be readily implemented by the Government pursuant to existing legislation. Personally, I believe and have often stated that the problems with the Board’s procedure can be fixed by regulations.

The Board is getting pressure from all sides to speed up its procedures and to lower the costs of participation. It has formed a working group to look at this. That has not gone too well, since certain incumbent interests are resistant to change. There is also a recent study by Prof. Jeremy de Beer commissioned by the Government, concerning which I’m working on a fairly detailed commentary.

In the past, some have been worried that the Board has become somewhat “captive” in the regulatory law sense to the collectives it is supposed to regulate. However, some collectives may now believe that the Board is leaning too far in favour of users. As I’ve pointed out, there are now two decisions in the last year that will apparently result in two major collectives failing to recoup their costs of obtaining a tariff – unless there is some miracle arising from judicial review. The other is the Re:Sound Tariff 8 “Pandora” tariff. 

Prior to last year, the one notable exception had been the ERCC. It has apparently folded and never paid off its debts or distributed anything to its royalty claimants. However, there were different considerations involved in the ERCC  (Educational Rights Collective of Canada) story, and ERCC was at best a very niche collective.

Are these two decisions, especially the AC one from May 22, 2015 a departure in significant ways from the past? Are they mere blips on the long term chart? Has the Board now begun to take a different view of the need for “balance” in the copyright collective realm? Has the Board taken on a more “inquisitorial” role that will allow it to address the public interest even in a fully contested case, and especially in important cases that may proceed by default, such as the Access Copyright Post-Secondary Tariff?

These are important questions as summer approaches. The next major event for Board watchers could be a puff of white smoke announcing the appointment of a new Chairperson. But it’s probably unwise to hold one’s breath, given that the post has now been vacant for over a year.

HPK

If Buses Are Red, Can Fair Use Be Blue?

Annex 1

Annex 2

In 2012, more than a few eyes on both sides of the pond were raised when a brilliant young recently appointed judge named Colin Birss of the Patents County Court in England ruled that the picture called “Annex 1” above was infringed by the picture called “Annex 2” underneath it above. These were different photographs from different vantage points, as the Judge so found. Basically, they are pictures of a red bus appearing before the black and white British Houses of Parliament. But still, he found that there was infringement. There was much ado about whether copyright had been extended to the “idea” of a red bus (which is, as we all know, the iconic colour of London buses) against the black and white background of the British Houses of Parliament.  The idea of a red figure against a black and white background figured prominently, of course, in the well-known 1993 Spielberg film Schindler’s List:

While Colin Birss’s decision has stirred much discussion, it should be noted that it strictly speaking has no “stare decisis” precedential value in England because the Patents County Court is rather like a small claims court of IP cases.  

However, and in any event, Colin Birss is now Sir Colin Birss and is a judge and rising star of the  High Court of Justice of England and Wales and is reportedly an avid bee-keeper in his spare time. He can also be sighted and heard from quite regularly at Hugh Hansen’s annual Fordham IP Conference in New York, which is always held on the first Thursday and Friday after Easter™. (I have also been known to have frequented that event for many years and had something to say on many occasions concerning Canada and related issues. I have indeed met Sir Colin at that event several times. Likewise, with other British copyright and cat fanciers, such as Jeremy Phillips of the fabled 1709 Blog who revealed the true colours of the red bus story and who I have alerted to the the situation at Brixton's pub in Ottawa described below.)

So, I happened to have lunch the other day with a distinguished  Canadian Copyright Board practitioner (who is so modest that he would surely want to remain nameless) at Brixton’s, the pleasant British style pub on Sparks Street in Ottawa and here is what our table covering looked like:

I was shocked, shocked at this possible infringement – at least as Sir Colin as he now is might see it. But discerning readers will see that this Red Bus picture is notably similar to but notably different from both of the above. I wonder whether it is licensed – and if so from which of the above? I hope that I am not getting Brixton's into trouble. But even for British Courts, Ottawa is a jurisdictional stretch. Brixton’s is a great place – and the patio in the summer is particularly nice. “Brixton”, BTW, is a district of South London. 

It’s interesting to contrast the UK Red Bus decision with the recent  controversial US 2^nd Circuit decision in Cariou v. Prince, where the splash of blue on a face and the addition of a blue guitar to the evocative photograph of a Rastafarian on the left  was held to be potentially “fair use” under American law and remanded to the District Court. 

 

In the words of the appeal court concerning the above picture called “Graduation” , the Circuit Court stated that defendant artist “Prince did little more than paint blue lozenges over the subject’s eyes and mouth, and paste a picture of a guitar over the subject’s body”. But it remanded. The second picture is also much larger. But was it ultimately fair use? Who knows – the case was recently settled. However, many were disturbed that the fair use question was even left open in this example. Unlike the Patents County Court in England, the decision of the 2^nd Circuit Court of Appeals in the USA carries a lot of presidential weight, at least in the USA.

Thankfully, in Canada, our law on fair dealing and what is a "substantial part" is currently quite clear due to recent amendments to the Copyright Act and exemplary decisions of our Supreme Court.

Hopefully, the Canadian law on fair dealing will NOT be messed up by what is happening (or really more to the point what is NOT happening due to the failure of AUCC and ACCC to represent their membership at the Copyright Board in the post-secondary case) at the Copyright Board and also the currently pending K-12 case and in the York University litigation in the Federal Court. See my blog elsewhere about these issues on several occasions.

HPK