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.

HK

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
To: XXXX
Cc: XXXX
Subject: IMPORTANT NOTICE REGARDING COPYRIGHT POLICIES AT XXXX
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:
XXXX
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 
XXXX

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.

HK

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.


HK

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.

HK

Public Domain Day - 2011

Tszho1997

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:

See: 

Here; and  Here

HK

Copyright Board Grants Access Copyright’s Application for Interim Tariff

After a process lasting about 10 weeks, without an oral hearing, and without yet providing reasons, the Copyright Board announced just before 6:00 PM on December 23, 2010 its decision to grant the application by  Access Copyright (“AC”) for an Interim Tariff applicable to post-secondary institutions outside Quebec commencing January 1, 2011 until December 31, 2013 (i.e. three years) or until a final tariff is certified, whichever is earlier. This could be worth about $48,000,000 over its likely three year duration, based upon AC’s own figure for annual revenue for the post-secondary sector outside Quebec. It is possible that an interim tariff could eventually be imposed for a much longer period - perhaps on modified terms - given that inaugural tariffs can take several years to be determined at the Copyright Board, not to mention possible subsequent judicial review and even Supreme Court proceedings. According to the Board, “The interim tariff, as any interim measure, may be modified or replaced at any time, on application.”

Here is the Board’s decision of December 23, 2010. Here is the Interim Tariff dated December 23, 2010. Here is the Board’s redlined version comparing the Interim Tariff as granted to the  AUCC model license.

The justifications advanced by AC for this interim tariff included:
•    preservation of the status quo;
•    promotion of legal certainty; and,
•    relief for AC against the “deleterious effects of the length of the hearing”.

The interim tariff was vigorously opposed by several major associations in the post-secondary establishment, including ACCC, AUCC, CASA, CAUT, and CFS on behalf of their members. There were also forceful objections by the Province of Alberta, Athabasca University and Prof. Ariel Katz. Various objections by one or more of the participants included the following grounds:
•    lack of jurisdiction;
•    lack of evidence; and
•    procedural fairness.

The above summary is very cursory and mentions only some of the many issues raised by the various participants. I have attempted to publish all of the written submissions (without attachments) from AC and all of the participants earlier on this blog.

In an unusual twist, the Board sets dates for further submissions “since this tariff is being issued even though its provisions would benefit from fuller discussion”.  Also, the Board stated that:

This decision is being issued without reasons because the Board considers this matter to be urgent. Reasons will follow.

Naturally, we all await the reasons for decision with great interest.

It will be interesting to see if and, if so, when judicial review proceedings (i.e. “appeal” for non-lawyers) are commenced by one or more participants. If this happens, then it is possible that the interim tariff itself will be set aside by the Federal Court of Appeal in the next several weeks or months and that there could even be, if sought, an interim stay of the interim tariff, pending the full determination of any judicial review application.

Check back on this blog for updates when the Board releases its reasons as well as any news as to judicial review applications or other developments.

As well, another major and potentially relevant event to watch out for in the next weeks in the context of this Copyright Board case will be the judgment of the Supreme Court of Canada (“SCC”) as to whether it will grant leave to appeal in the CMEC K-12 case. This would not be surprising, given that leave was just granted in the SOCAN “previews” case and that the K-12 decision is arguably, inter alia, inconsistent with the slightly earlier “previews” decision in the same Court on the fair dealing issue.  Whether the SCC takes the K-12 case, and if so what it does with it, is bound to be very important in the eventual outcome of the AC posts-secondary tariff application.

On a closing note, Season’s Greetings and best wishes for the New Year to all my readers, including those with whom I may respectfully disagree or critique in the wonderful and efficient marketplace of ideas that the blogosphere makes possible and even inevitable. Thank you all for your interest in this blog, which is approaching its fifth birthday on January 10, 2011.

HK

Leave to Appeal Granted in SOCAN iTunes "Previews" case

Good news from on high, legally speaking:

GRANTED WITH COSTS / ACCORDÉE AVEC DÉPENS

Society of Composers, Authors and Music Publishers of Canada v. Bell Canada et al. (F.C.) (Civil) (By Leave) (33800)

(The application for leave to appeal is granted with costs in the cause. /

La demande d’autorisation d’appel est accordée avec dépens suivant l’issue de la cause.)

Coram: LeBel / Deschamps / Charron

This augurs well for leave to appeal also being granted in the CMEC K-12 case, in which the application was filed a few weeks later. 

If the Supreme Court proceeds in its usual prompt manner, we will likely have a judgment in the CMEC K-12 leave application in late January or February.

The CMEC K-12 case at first sight is much more obviously relevant on its facts than the previews case to the the current Access Copyright tariff applications underway at the Copyright Board. However, if perchance the Court decides to hear only the "previews" case and not the K-12 case, the outcome could still have a profound effect on the AC applications depending on the result and the reasoning.  


I've been predicting that both these cases would be heard by the Court - since both involve important fair dealing issues and present a situation in which the Federal Court of Appeal has seriously contradicted itself not only on the substance of fair dealing but on standard of review as well.

HK

Access Constriction at York University Following AUCC Fair Dealing Policy

An example of the fallout in the form of copyright chill and denial of access that is being promoted by AUCC itself can be seen at York University (my undergrad law alma mater).

Believe or not, York University has advised its faculty:

CHECK with the Libraries to see if there is a licence or subscription that permits copying, posting, or linking to the published material.  (emphasis added)

Even AUCC does not go so far as to suggest that linking requires permission. But maybe York U's administration hasn't heard that linking is not something covered by  Copyright Act. 

Here are documents that York has sent out to its faculty yesterday, on the eve of the “sky is falling” deadline set up by Access Copyright of January 1, 2011:

• Memo re “Copying at York University”

• Notice re Access Copyright

• Fair dealing Guidelines provided by AUCC

Here also is York U’s very unhelpful and very obsolete website material “Copyright and You”

Here, one will find such gems as:

In addition to considerations of personal liability, the staff of the York University Libraries, Archives and Special Collections, and Printing Services have a professional responsibility to respect copyright law and thus may refuse to copy or print something for you if they deem it to be an infringement of copyright law.

and 

Can I digitize copyrighted materials?

Faxing, scanning, and other forms of electronic reproduction and transmission are also considered copying but the copy cannot be kept in digital form. Digital copies are allowed only as an interim format with paper copies being the final product. Even then, the electronic copies must be promptly destroyed.

What are the penalties for copyright infringement?

If one does not obtain appropriate permission from the copyright owner(s) to use protected works, both civil and criminal penalties can be imposed.

(emphasis added)

All of this results from overly cautious advice that could have come from Access Copyright itself. 

One might well ask whether:

• Canadian universities are serving the interests of their faculty and students by self imposing policies and practices  that their counterparts in other countries - particular the USA - would find incomprehensible, unworkable and even risible?

• How Canadian post secondary teachers and students can hope to be competitive with their foreign counterparts when “access” to essential reading material is discouraged or denied?

• The “Can’t Copy” attitude of Access Copyright and AUCC are threatening the economics and quality of higher education in Canada?

• Whether - if AC and Canada's post secondary institutions can’t deal with this in the public interest  - legislative intervention is required.?

HK

AUCC's Final Fair Dealing Policy with Explanatory Memo

AUCC has issued its presumably final final fair dealing policy with a short explanatory memo. The Supreme Court's six part test from CCH v. LSUC, which I noted yesterday had been taken out,  has now been added back in. However, the spirit of that landmark decision seems to be rather distant in this document.

The  explanatory memo, which emphasizes all the things that supposedly can't be done,  follows below.Those with reasonably long memories may recall that Access Copyright used to be called CanCopy - but changed its name - possibly because too many impertinent people, such as former York President Harry Arthurs and myself, were calling it "Can'tCopy".

Anyway, the explanation below and the attached document are what AUCC  - not Access Copyright - thinks can be copied and can't be copied under "fair dealing" in the universities.

HK

**********************************

Fair Dealing Policy

The legal counsel for the Association of Universities and Colleges of Canada has prepared, and recommends for adoption by each AUCC member outside Quebec that intends to operate under the Access Copyright Post-secondary Educational Institution Tariff, 2011 to 2013 (the "Proposed Tariff'), the attached fair dealing policy.

The fair dealing policy outlines the copying of published works that can be made in print or electronic format by a university through its staff and faculty members under the exception for fair dealing in sections 29 to 29.2 of the Copyright Act, without seeking permission of the copyright owner. The policy does not apply to audio or video recordings.

The fair dealing policy does not address exceptions in the Copyright Act other than fair dealing. Depending on the circumstances, other exceptions in the Act may also permit the copying of works without the permission of the copyright owner. One example of an exception is section 29.4(1). It provides that it is not an infringement of copyright for an educational institution to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for the display of handwritten material. Another example is section 30.2 which provides that it is not an infringement of copyright for a library to do anything on behalf of any patron that the patron could do herself under fair dealing. Your institution may wish to include the fair dealing policy in copyright guidelines or a copyright compliance policy that addresses other exceptions under the Copyright Act.

The fair dealing policy does not restrict any copying that your institution is permitted to do under arrangements that your institution has with publishers, e.g., under a Canadian Research Knowledge Network licence, or a transactional permission with the publisher or the publisher's representative, e.g., Access Copyright or the Copyright Clearance Centre.

The fair dealing policy does not permit making copies for sale to students in course packs, making copies of required readings for library reserve, or posting copies on course management systems, e.g., Blackboard, or on course websites.

Some licence agreements that universities have with publishers that provide access to publications in electronic format restrict the making or dissemination of copies. Where there is a conflict between the terms of a licence agreement and the fair dealing policy, the terms of the licence agreement apply.

The policy contemplates that your institution will appoint a person who will make decisions on whether copying outside the scope of the copying guidelines are for one of the fair dealing purposes of research, private study, review or criticism, and in all the circumstances, whether the making of the copies is fair. Paragraph 10 of the policy sets out the factors to be considered in determining whether the making of a copy for one of the fair dealing purposes is fair. If the copying is for one of such purposes and the making of the copy is fair, the copying can be made under the fair dealing exception without the permission of the copyright owner.

Access Copyright's Reply and Sur-sur-replies Dec 22 2010

AC has filed a lengthy reply  to the submissions filed on December 17, 2010.

This contains rather ample reply to the allegedly "improper"  alleged "sur-reply" from several participants.This might be called "sur-sur-reply".

In any event, this presumably completes the process of written submissions on AC's application for an interim decision in the form of a interim tariff. Amongst many interim rulings in recent days and weeks, the Board refused to have an oral hearing on this matter.

I will say that it would be quite unremarkable if the Board were to completely reject this application for any one of many obvious reasons, including lack of jurisdiction, lack of evidence, and procedural fairness grounds. The many submissions of the objectors and intervenors provide ample evidence and legal reasoning urging this result.

If, on the other hand, the Board decides to issue an interim tariff in this situation, the decision would likely be very controversial and potentially very vulnerable to being overturned on judicial review ("appeal" in non-lawyer parlance) by the Federal Court of Appeal.

If the Board is going to issue an interim tariff, and accepts a version of the notion that the sky will fall on January 1, 2011 without such a tariff, one can expect a ruling potentially at any moment. This would be interesting because the Board often takes many months and sometimes as much as 18 months or more after submissions are complete to deal with matters of much less controversy and financial significance. An interim tariff, in this instance, could be in effect for many, many years. Recall that SOCAN's inaugural internet tariff dates back to 1995 and is far from resolved. Of course, there was no interim tariff in that situation.

HK

Worthy IP Publications from the Hart Publishing Limited catalogue

Hart Publishing Limited - a worthy publisher of worthy IP titles - invites this blogs readers to enjoy a 20% discount as follows:

**************

Hopefully your readers would be interested to learn about these publications. If you would like to upload an announcement then we would be very pleased to offer your readers 20% discount from the retail selling price. All you have to do is include the note below about how to receive the discount.

The Common Law of Intellectual Property
Essays in Honour of Professor David Vaver
Edited by Catherine W Ng, Lionel Bently and Giuseppina D'Agostino
Aug 2010    9781841139708;    Hbk;   528pp;    £75
http://www.hartpub.co.uk/books/details.asp?ISBN=9781841139708

'Expert Privilege' in Civil Evidence
Paul England
Dec 2010;    9781841133034;    Hbk;   £45.00
http://www.hartpub.co.uk/books/details.asp?ISBN=9781841133034

Intellectual Property Law and Policy Volume 11
Edited by Hugh C Hansen
Nov 2010    9781841139968;    Hbk;   862pp;    £125
http://www.hartpub.co.uk/books/details.asp?ISBN=9781841139968

International Trade Mark and Signs Protection
A Handbook
Edited by Paul Lange
Jun 2010    9781841139005;    Hbk;   £300
http://www.hartpub.co.uk/books/details.asp?ISBN=9781841139005

DISCOUNT OFFER
Hart Publishing is delighted to offer these titles at 20% discount. To receive the discount please quote reference 'IPBLOG11' when placing your order. If you are ordering online then please quote the reference in the special instructions field. The discount will not show up on your order confirmation but will be applied when your order is processed. All enquires should be directed to Hart Publishing Tel: 01865 517530; E-mail: mail@hartpub.co.uk; Website: www.hartpub.co.uk


Hart Publishing Ltd. is registered in England No. 3307205
**************

HK

Contrasting Approach to "fair" - US Study v. AUCC "fair dealing policy"

Here’s a contrast in attitudes to the concept of "fair" in the context of copyright in the academic world.

Here’s a brand new study dated December 20, 2010 from Adler, Butler, Aurderheide and Jaszi in the USA. It favours an expansive approach to what is “fair” because the job of librarian is help faculty and students to learn and do research. The authors state:

Failure to employ fair use affirmatively and consistently impairs the accomplishment of
the academic and research libraries’ mission. Interviewees described downsizing,
postponing, and shelving courses, research projects, digitization initiatives, and exhibits
due to costs associated with seeking permission or making what seem to be tedious
case-by-case determinations of fair use. Scholars were denied access to materials, or put
to considerable hardship, because of constraints interviewees imposed on the use of
copyrighted materials. Some interviewees described providing disabled students with
lower levels of access than their peers for fear of violating copyright. Materials with
inherent flaws (e.g., books with acidic paper, and analog tape and film that will warp
and disintegrate over time) and in near-obsolete formats are languishing because some
interviewees were not comfortable acting under fair use where other reformatting
provisions may not apply. Interviewees were typically aware that they could go further,
but felt constrained in exercising fair use in various situations.

And this is in the USA, home of “fair use” , which is potentially far more liberating to teachers and students than “fair dealing”.

Contrast this with the recent “final” AUCC (Association of Universities and Colleges of Canada)  guidelines on fair use, which are so conservative, restrictive and risk averse that one could well wonder whether they originated from AC (Access Copyright ) or  AUCC.

Here’s the final  not quite final revised version of AUCC’s document, and here’s the August draft. For interest, I attach a redlined version comparing the two.  Interestingly, the revised version, which I understand dates from December 7, 2010, omits the reference to the six part test from the SCC in CCH v. LSUC - which would be useful to inform and empower librarians and others in the university community.

Also, interestingly, the document still does not use the precise phrase “research or private study”, which is the carefully drafted terminology in s. 29 that was meant to convey the notion that, while “study” must be “private” (whatever that means), “research” is not so delimited.

HK

Leave to Appeal Judgment to be Rendered in SOCAN iTunes "Previews" case

The SCC will announce this Thursday at 9:45 AM whether it will grant leave to appeal in the SOCAN "iTunes Previews" fair dealing case.


It would be very interesting and potentially very helpful for the Court to  hear both this case and the  CMEC K-12 fair dealing case. These two decisions from different panels of the Federal Court of Appeal and only a few weeks apart essentially contradict each other on the very important issue of whose "purpose" is crucial for a determination of whether or not there is fair dealing.


Both cases deal with very important fair dealing issues. It seems that lots of institutions and people don't "get" or can't agree on what CCH v. LSUC is all about - and this is an opportunity to provide necessary guidance.


As well, the FCA decision in the CMEC case, whether upheld or overturned,  (assuming leave is granted) will have a a profound effect on the pending mega-case involving Access Copyright's proposed 1300% increase and incursion into digital rights at the post-secondary level. The Board case will go on for years. 


If leave to appeal is denied in the CMEC K-12 case, the negative effect on post-secondary institutions will be immense in terms of cost and restrictions on access to copyrighted material. If leave to appeal is granted, it would seem sensible - and perhaps essential - for the Board to put the AC post-secondary file on hold with a "stay" until the SCC outcome is known. The evidence in the Board case would be developed very differently if the Supreme Court reverses the FCA. However, the Board would likely be very loath to grant such a stay. It would be an interesting exercise in judicial review to see if the Board could be forced to stay the case. Needless to say, somebody would have to ask both at the Board and, eventually, the FCA.


Moreover, the Federal Court of Appeal has become - with all respect - quite inconsistent and unpredictable on the "sempiternal" and inevitable question that arises in every case as to the appropriate "standard of review".  This is an issue that nobody wants to deal with - but must be dealt with because we now seem to know less rather than more about how the FCA will deal with cases from the Copyright Board. I'd be interested in hearing about experience on standard of review in judicial review from other Federal tribunals.


It's very important that these issues be clarified.


But as we all know, only about one in ten applications result in leave to appeal being granted.


HK

More Filings at Copyright Board re Access Copyright Proposed Interim Tariff

Recent filings on Access Copyright ("AC)'s proposed 1300% tariff increased and interim tariff:

AC reply of December 15, 2010

ACCC submission of December 17 2010
Alberta (Province of Alberta)  submission of December 17 2010
Athabasca submission of December 17 2010
AUCC submission of December 17 2010
CASA submission of December 17 2010
CIPPIC on behalf of CAUT  and CFS  submission of December 17 2010
Ariel Katz submission of December 17 2010
Saint Paul

HK

Recalling The Great Canadian Penny Perturbation of 2007

As we contemplate sending our Canadian pennies back to heaven, I thought I would "rerun" my post from October 16, 2007 - about how the Canadian penny made it into the NY Times because of excessive copyright claims by the Canadian Mint. I understand that my blogs may have helped to save the City of Toronto a pretty penny...


Canada doesn't often get into the New York Times. This is a hard act to follow...


HK

***************
October 16, 2007

EXCESS COPYRIGHT: The Penny Perturbation Now In the NY Times 

The great Canadian penny perturbation on the part of the Royal Canadian Mint in its efforts to shake down the Municipality of Toronto has made it to the New York Times, complete with a picture:

According to the Times story, the Mint now admits that it has no trade-mark rights in the words "one cent." That's a promising sign of enlightenment and intergovernmental compromise. Or that the mint has regained a minimum modicum of common cents.

But the Mint is still absurdly asserting copyright. Now here's a picture of a 1937 penny copied from eBay for research purposes:

Notice how the two pennies appear to be virtually identical, except for the date. Is the Mint claiming property rights in the date of 2007? (That could only happen in Canada for the year 2010 - but that's another story).

The copyright claim doesn't work. Any copyright expired in 1987, according to s. 12 of the Copyright Act, as I explained in my first posting on this subject.

According to the Mint's spokesman, as quoted in the Times:

“We have to protect our property from abuse,” he said. “We have to be consistent.”

Now how about protecting the Canadian taxpayer from abuse of non-existent IP rights, needless legal expenditures, and the wasting of a lot of peoples' time?

HK

An “iPod Tax” Election?

 
This blog is non-partisan. But copyright has lately become extremely partisan. So we can’t help but notice.

There are many problems with the Liberal Party position on copyright, just announced today here. I’ll focus for the moment on the private copying levy issue. 

The Liberals say:

The Liberal Party consulted thoroughly with artists across the country before coming up with this balanced solution. Specifically, the Liberal Party will seek to introduce a new Private Copying Compensation Payment of $35 million to be transferred to Canadian artists each year, through the Canadian Private Copying Collective (CPCC).  Liberals are proposing a new statutory program, written in law within the Copyright Act, which will increase at the rate of inflation and be reviewed every five years.

Issues:

1.    Will this still be seen as a “tax”?  The proposed $35,000,000 a year won’t grow on trees. It will come from taxpayers, the  vast majority of whom are businesses or individuals who will have nothing to do with downloading music or private copying.

2.    If this is done as part of the Copyright Act, it’s difficult if not impossible to see how “national treatment” treaty obligations could be avoided. Most of the money then would leave Canada, after the lobbyists, lawyers, consultants and others involved with CPCC take their usual several millions per year off the top.

3.    If the Liberals want to really help Canadian musicians - and to keep the money in Canada - and to keep lawyers and lobbyists out of the picture, why not give more funding to the Canada Council, FACTOR, or other “programs” that are not subject to the Berne Convention or the 1996 WIPO treaties?

4.    Why prop up (how does one spell “BAIL OUT”?)  an obsolete collective that has worked well only for the lawyers, lobbyists, consultants, etc. who run it? If we leave the CPCC alone, it will die in a year or two since the only revenue now comes from blank CDs that are mostly used by businesses to the extent that they are used by anyone anymore - unless the Government prescribes CDs out of the picture earlier - as it easily could.

5.    It should be recalled that this is the legislation that the music industry - led by CRIA - asked for and got in 1997 - when digital media and the internet were in full bloom. CRIA etc. got exactly what it asked for. It’s focus was on an obsolete “home taping" concept from Europe - home of a socialist approach to collectives that has been rejected in England, the USA and Australia - particularly regarding “levies”. BTW, Canada has 36 or so collectives. The USA has only about half a dozen -  depending on definitions.

6.    CPCC’s distribution methodology is slow and non-transparent. It is based on record sales and air play, which are extremely counter-intuitive proxies for downloading behaviour. Payouts to the average working musician are at most $160 each per year and probably very much lower or non-existent in most cases. CPCC has refused to provide mean and/or average payouts to individual artists.

7.    What about downloading - the elephant in the room? Would it be legalized or not? If not, why should Canadians pay more taxes to fund the music industry to sue individual Canadian taxpayers who may or may not download? On the other hand, if downloading is to be legitimized, is $35 million a high enough price to pay and would the regime conform with the three step treaty tests?

8.    What about divisions within the music industry? CRIA is very ambivalent about the levy scheme it more than anyone created. Its big record companies love to cash the cheques - but hate the inevitable implication that all copying - including downloading - has been legalized as long as it is onto a leviable medium - regardless of whether there actually is such a levy in place. (Be careful what you wish for!)

9.    What about other creators? Would this be a “get in line” precedent” for writers, actors, movie producers,  etc.?

10.    How long will it take for the $35 million a year to creep up to $350 million - or $3.5 billion? Think gun registry and other “programs” that have been government funded and started out “small”.

11.    How would this be done, without drastic amendment of Part VIII of the Copyright Act, which would be “out of order” in Bill C-32, given that Part VIII is not part of the bill as it stood on second reading?

But the apparent irony may be that nobody is looking at Bill C-32 anymore.

The Conservatives have lost no time in launching attack ads directed at the coalition “iPod Tax”.  Could this be the first shot across the bow for the next election? An election in which copyright could actually be an issue?

Incredible!

Actually, not really. “Be careful what you wish for”.

HK

CMEC on "making multiple copies for class use"

In its most recent bulletin on Bill C-32, CMEC - which represents the K-12 system in outside of Quebec - says:

Education organizations, including the CMEC Copyright Consortium believe that Bill C‐32 should
clarify how fair dealing applies to copying by a teacher for students in his or her class. The
CMEC Copyright Consortium believes that Bill C‐32 must make it clear that "education" includes
"making multiple copies for class use."

This clarification would result in a Canadian copyright law that is similar to the "fair use"
provision in the United States Copyright Act. The "fair use" provision, like "fair dealing" in
Canada, also involves two tests to determine whether a "use" is fair. Under the first test, the
enumerated purposes are "criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research." Education organizations want Bill C‐32 to
provide a similar provision — that the new enumerated purpose be "education (including
multiple copies for class use)," rather than simply “education.” Such an amendment would
make it clear that a Canadian teacher, like their US counterpart, can make copies for students in
his or her class under the first test. The dealing would still have to be "fair" under the second
test.

(emphasis added)

I agree with this. In fact, I've repeatedly called for this myself.

Such a clarification would avoid years of uncertainty and litigation. While further tweaks to s. 29 may be required or desirable, this one is a good one.
 
Unless the Supreme Court of Canada grants leave to CMEC in its attempt to appeal the decision of the Federal Court of Appeal from last summer that upheld the Copyright Board's K-12 decision and  unless the Supreme Court of Canada ultimately overturns the decisions below, the Canadian educational system will be at a profound disadvantage compared to our American counterparts.

It is difficult to understand why anyone would argue that the Canadian educational system should provide less access at  greater cost than in the USA. Any suggestion that such an amendment would violate the Berne three step test is simply nonsense. If it does, we'd be in good company with the USA.

The state of copyright law as it now applies in Canadian classrooms is very unsatisfactory as a result of the recent Copyright Board and Federal Court of Appeal decisions. It is simply unacceptable and, with respect, quite incorrect that any copying done because a teacher requires or suggests that a student read something cannot be fair dealing. It is the purpose of the student - the researcher - that matters, as the Federal Court of Appeal correctly acknowledged in another earlier decision this year involving iTunes.

Hopefully the Supreme Court of Canada will hear both these cases and clarify the law in Canada.  That, however, is likely to be at least another 18 months away. And there is no guarantee that the Court will grant leave or that, if it does, that it will reverse the FCA on the K-12 decision.Only about one in ten leave applications are granted.

Given what Access Copyright is trying to do to the post-secondary system now at the Copyright Board, and the warp speed treatment that the Board is providing to AC, we need sufficient certainty, clarity and correction from the result of the Board and the FCA and we need it ASAP from Parliament.

CMEC's suggestion in this instance is very helpful and timely..

HK

On Canadian Facts, Fiction, Lobbyists and Levies

Ministers Clement and Moore did the right thing yesterday by saying that no means no.

The levy lobbyists did the wrong thing by denying the incontrovertible truth.

It is absolutely false - as ACTRA boldly states that:

“The $75 dollar figure is pure fiction. The CPCC has not put a price on the levy.”

Do facts not matter any more?

The levy lobbyists are in deep denial about their own collective’ recent demand for a “tax”of $75 per iPod.

Has ACTRA lost its ability to read? Does the truth not matter any more?

The fact is that the Canadian Private Copyright Collective asked the Copyright Board for a tariff of $75.00 per iPod in 2007 for the period 2008-2009. Here’s the precise request from the proposed tariff published in the Canada Gazette:

(e) for digital audio recorders, $5 for each recorder with no more than 1 Gigabyte (GB) of memory, $25 for each recorder with more than 1 GB and no more than 10 GB of memory, $50 for each recorder with more than 10 GB and no more than 30 GB of memory, and $75 for each recorder with more than 30 GB of memory. (emphasis added)

Now, if you think that’s bad, go back only five years to 2002 for the proposed 2003-2004 tariff that would have imposed $21 per GB. Here’s the exact proposal from the Canada Gazette:

(g) $21 for each gigabyte of memory in each non-removable hard drive incorporated into each MP3 player or into each similar device with an internal hard drive that is intended for use primarily to record and play music.

Now, for those who can’t or won’t do simple arithmetic, I’ll do it for you.

A $21 per GB tariff (“tax”) on a 160 GB iPod “Classic” that now sells for about $270 would be - get ready for this - $3,360.00.

On a one Terabyte eternal hard drive that sells for as low as $69 in Canada, the “tax” would be $$21,000.00.

On a three Terabyte terabyte eternal hard drive that now sells for about $220 in Canada, the tariff (“tax”) would now be $63,000.00. This is NOT a misprint.

So much for the forward thinking capacity of the Canadian Private Copying Collective.


This shows the fallacy of taxing technology. And why Minister Moore was right to call the proposed iPod tax "really toxic and, frankly, really dumb".

QED.

Thank goodness we shot these proposals down. (I acted for the Retail Council of Canada - which really does stand up for consumers).

Bravo, Ministers Clement and Moore for yeseterday’s announcement.

The CPCC should start planning for winding up. It should distribute its many remaining millions to artists - and not to lawyers, lobbyists and consultants. They have had their day on this file.

HK