Here, thanks to the efforts of our articling student Scott Tremblay who obtained this from the Court, is York's Notice of Appeal.
I will have something to say about this at a later date.
Potential interveners take note.
HPK
Monday, September 25, 2017
Access Copyright v York University Files its Notice of Appeal - Waiting for a Copy
York University has finally - just 10 days ahead of the extended deadline of October 2, 2017 provided by the Rules because it's summer - filed its Notice of Appeal on Friday, September 22, 2017. HT to @amacek and his wonderful notification service available here.
I've asked York's Counsel for a copy. Otherwise, I'll have to get it from the Court - which could take some time, unless I get lucky. It's a public document - but that does not necessarily mean it's available to the public as soon as it's filed.
I know everyone is interested and potential interveners will be getting ready to start their engines.... so stay tuned....
If anyone gets it sooner than me, please pass it along and I'll post it - with or without acknowledgement of the source, as you wish. As I say, it's a public document.
Anyway, here's the Court's Docket entry below....
HPK
***
I've asked York's Counsel for a copy. Otherwise, I'll have to get it from the Court - which could take some time, unless I get lucky. It's a public document - but that does not necessarily mean it's available to the public as soon as it's filed.
I know everyone is interested and potential interveners will be getting ready to start their engines.... so stay tuned....
If anyone gets it sooner than me, please pass it along and I'll post it - with or without acknowledgement of the source, as you wish. As I say, it's a public document.
Anyway, here's the Court's Docket entry below....
HPK
***
Proceedings Queries
| Type | Nature of Proceeding | Office | Language | Type of Action | Filing date |
|---|---|---|---|---|---|
| Federal Court of Appeal | Appeal (S.27 - Final) - Copyright Act | Toronto | English | Non-Action | 2017-09-22 |
| Party Name | Solicitor | Lawyer(s) / file no |
|---|---|---|
| YORK UNIVERSITY | OSLER, HOSKIN & HARCOURT LLP | COTTER, JOHN C |
| CANADIAN COPYRIGHT LICENSING AGENCY (THE) | - | - |
| Court Number | Style of Cause | Nature of Proceeding |
|---|---|---|
| T-578-13 | THE CANADIAN COPYRIGHT LICENSING AGENCY v. YORK UNIVERSITY | Copyright Infringement [Actions] |
Thursday, September 14, 2017
The Blacklock’s Perfectly Predictable Costs Appeal Dismissal & a Preview of Potential Problems
The Federal Court of Appeal (“FCA”)
heard Blacklock’s appeal of Justice Barnes’ costs ruling on September 12, 2017 and
perfectly predictably dismissed the appeal with costs. The FCA not only ruled “from
the bench” but, as I understand, did not even call upon the Attorney General of
Canada to respond. As practicing lawyers well know, this means that Blacklock’s
did not raise any issues that even needed an oral response. This was a
decidedly decisive disposition.
The FCA’s judgment, which is somewhat
surprisingly specific for a judgment from the bench, is available here. Notably, the FCA:
- Agreed with Justice Barnes that the issues – primarily the fair dealing issue – were “well-settled in the jurisprudence and, thus, neither novel nor of public significance” (para. 5)
- Ruled that Justice Barnes’ costs award was “amply supported” by the factors in the rules and that the Federal Court considered, among other things:
o
the respondent’s success in the litigation and
the one-sided nature of the outcome,
o
the appellant’s litigation strategy,
o
the existence of a settlement offer,
o
the complexity of the litigation, and
o
the actual costs of the respondent.
(para7)
The FCA effectively concluded that
Blacklock’s submission that “the Federal Court should not have relied upon the
appellant’s non-acceptance of the respondent’s settlement offer because this
was a test case designed to settle issues arising in related proceedings”
worked against Blacklock’s. Indeed, the Court concluded that “Further, to the
extent this was a test case, this could have prompted a higher level of
activity by the respondent and, thus, would have justified an elevated costs
award.”
Appeals of Judge’s costs judgments are
very rarely successful because such judgments are “quintessentially
discretionary” and an appellant must establish “palpable and overriding error”
in order to succeed. This case was particularly predictable because Justice
Barnes judgment was so careful and detailed. What was not so obviously
predictable is the extent to which the FCA actually reinforced Justice Barnes’
costs ruling. The FCA awarded costs of $3,500 for the appeal.
In my earlier blog entitled Blacklock’s
Litany of Litigation Lengthens - Update on Four More Federal Court Actions, I made the following comments about Blacklock’s
appeal of Justice Barnes’ $65,000 costs
award:
Costs
judgments are normally very difficult to appeal successfully. The $65,000
award in this instance flows directly from the normal “mid-point
of Column III” approach as explained by Justice Barnes in paragraph 6 of
the costs judgment.
The Government was also able to benefit from the “double costs” rule because of
“the failure by the Plaintiff to accept an early
settlement offer in the amount of $2,000.00” (para. 4). Costs decisions by judges are
“quintessentially discretionary” and are rarely set aside on appeal.
…
Blacklock’s’ resounding initial
defeat on the fair dealing issue in Justice Barnes’ careful and convincing
judgment (not appealed) and the resulting $65,000 costs award (which is being
appealed) together with the Government’s clear and able determination to fight
back and its success to date may be of interest to all Blacklock’s copyright
litigation defendants, including those outside the Government, who may be
considering with their counsel their next steps, such as whether or not to
settle or to continue to fight back and to utilize strategic settlement offers.
Blacklock’s faces some further predictable problems. It would seem apparent
that Blacklock’s “litany of litigation”, as I have called it, is not going very
well for it. It has suffered three very clear and explicit setbacks at the hands
of very experienced judges of the Federal Court and Federal Court of Appeal. Blacklock’s
did not appeal the substantive
judgment of Justice Barnes, which is a now a binding
precedent that will be applied by the Federal Court in similar cases. Justice
Barnes’s substantive and costs judgments and the FCA’s approval of the latter are
all unusually tough, trenchant, and presumably very problematic for Blacklock’s.
There is not only a clear comment about the “well-settled” jurisprudence on
fair dealing. There is also a clear roadmap on the record as to the strategic
use of settlement offers that may enable a defendant to recover “double costs”
in appropriate circumstances in similar cases if Blacklock’s persists and
insists on going to trial.
[7] …I also
reject the Plaintiff's argument that this case raised "strong public
interest considerations". Rather, this case was about the Plaintiff's attempt to recover
disproportionate damages without any apparent consideration to the legal merits
of the claim or to the costs that it imposed on the taxpayers of Canada.
[8] Any reporter with the barest
understanding of copyright law could not have reasonably concluded that the
Department's limited use of the subject news articles represented a copyright
infringement. Indeed, the fair dealing protection afforded by section 29
of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the
acknowledged facts of this case that the litigation should never have
been commenced let alone carried to trial.
[9] I
am also troubled by
Plaintiff's attempt to claim an excessive amount of damages
beginning with its demand for compensation completely divorced from the
Department's limited use of the two articles. In no circumstances would Blacklock's losses have exceeded the cost
of individual subscriptions by the six officials who read the articles; yet
Blacklock's demanded a license fee equivalent to its bulk subscription rate of
over $17,000.00. This practice appears to be consistent with Blacklock's
usual approach which is to hunt down, by Access to Information requests,
alleged infringers and then demand compensation based on an unwarranted and
self-serving assertion of indiscriminate and wide-spread infringement. The record discloses that in
several instances government departments acquiesced for business reasons and
paid the full amounts demanded. In
this instance the Department appropriately took a hard line and succeeded in
its defence.
(highlight,
underline and emphasis added)
Blacklock’s faces other potential
procedural hurdles and predicaments depending on the results of case management
proceedings underway. There will be an important case management hearing
at 90 Sparks St. in Ottawa on Monday, September 18, 2017 at 10:30 AM involving
13 cases against the Government of Canada and some of its agencies. It will
deal, inter alia, with whether there should be a trial on the question of
whether Blacklock’s even has standing to bring these actions and, whether, in
the event that liability is ever established, what the quantum of damages might
be. Blacklock’s is asking that it be allowed to proceed to trial against Health
Canada and one “non-AG Canada Defendant” and that “pending the disposition of
the actions described above, all other actions case managed by the Federal
Court relating to copyright infringement of the Plaintiff be stayed”.
I shall follow up in due course.
HPK
Tuesday, September 12, 2017
Blacklock's Loses Appeal of Justice Barnes' Costs Order: Dismissed from the Bench
From the Federal Court of Appeal Docket:
| Court Number : | A-25-17 | ||
|---|---|---|---|
| Style of Cause : | 1395804 ONTARIO LTD. (c.o.b. BLACKLOCK'S REPORTER) v. AGC | ||
| Proceeding Category : | Appeals | Nature : | Appeal (S.27 - Final) - By or Against the Crown |
| Type of Action : | Non-Action | ||
| Doc | Date Filed | Office | Recorded Entry Summary |
|---|---|---|---|
| - | 2017-09-12 | Ottawa | This matter comes on for hearing on 12-SEP-2017 at Ottawa before The Honourable Mr. Justice Stratas The Honourable Mr. Justice Webb The Honourable Mr. Justice Near Appearances: Me Yavar Hameed (613) 232-2688 # 228 for the appellant Me Sarah Sherhols (613) 670-8492 for the respondent Language of Hearing: E Court Usher: M. Young, Shawn Duration: on 12-SEP-2017 from 09:30 to 10:45 Courtroom : Federal Court of Appeal Courtroom - Ottawa Court Registrar Therese Fadel Total duration: 1h 15min. Before the Court: appeal Result: dismissed Reasons delivered from the Bench Documents filed at hearing: 21 "Bill of Costs" Comments: Dars was used for the Hearing of this matter. Minutes of Hearing entered in Vol. 223 page(s) 229 - 231 Abstract of Hearing placed on file |
(highlight added)
Blacklock's has lost its appeal of Justice Barne's costs ruling. I will post reasons when they are available.
It will be recalled that Blacklock's did not appeal Justice Barnes' substantive decision.
HPK
Wednesday, August 30, 2017
Copyright Consternation & Confusion on Canadian Campuses as York Cogitates its Appeal
https://upload.wikimedia.org/wikipedia/en/8/87/Captain_copyright.jpg
The Canadian educational community awaits York
University’s Notice of Appeal from the July 12, 2017 decision of the Federal
Court in Access Copyright v.
York University. Regrettably,
in the meantime, two major universities – namely Western and York itself – have
recently issued copyright statements that appear to be premature, ill-considered
and even incorrect reactions to the York decision.
Western appears to have taken upon itself an automated total
“book burning” approach to pre-existing online course material. Apparently, instead
of relying on the general users’ right fair dealing provision in s. 29 of the Copyright
Act, it has slavishly
followed the destruction provision of the limited and arguably ill-conceived,
poorly drafted and unnecessary “lesson” exception in s. 30.01. Such a seemingly
misplaced reliance is directly contrary to the unanimous ruling of the Supreme
Court of Canada at para. 84 of the CCH decision, where the Court held that it is unnecessary to rely on a specific exemption
when the general fair dealing provision is available. Obviously, any archived course material that
has been legally posted with permission, by way of fair dealing, or otherwise
does not need to be deleted. Western’s denial that this has anything to do with the York
decision is unconvincing in light of an earlier announcement and,
frankly, rings hollow in terms of the newly stated rationale of “system
maintenance”.
Perhaps even more astonishingly, York issued the following overreaching and incorrect prohibition just 8
days after the decision was released: “Copyright law does not permit
downloaded files (PDFs, etc.) to be loaded directly into Moodle or other course
web sites.”
Since when does copyright law categorically prohibit the uploading of
“downloaded files” to a course website? Such uploading and sharing may very
well be done legally, for example on the basis of permission, an implied right,
pursuant to users’ fair dealing rights, or because the work may be in the
public domain.
Both
of these announcements are bound to cause considerable consternation and
confusion just as classes are about to begin. The source for these highly
problematic pronouncements is unclear in both instances. If two such high-powered
institutions with access to so much copyright expertise (which, in the case of law
faculty, was probably not called upon) can overreact in this manner, one
shudders to think what institutions with less available expertise will be
doing.
It
may be noted that Access Copyright has so far refrained from availing itself of
Justice Phelan’s unusual invitation to “apply for an injunction
prohibiting the Defendant from reproducing or authorizing reproduction of all
copyright protected works falling within the Approved Tariff and offering such
reproduction for sale, rent or distribution until all amounts of royalties plus
interest are paid.” Instead, York seems only too eager to effectively enjoin
itself from what appears to be perfectly normal and indeed essential
pedagogical practice.
York
University has publicly committed to appeal the July 12, 2017 judgment of
the Federal Court. Although it has until October 2, 2017 to file such a
document (because July and August do not count for this time calculation), the
normal deadline is 30 days after the decision. It is to be hoped that York does
not delay much longer as the fall term begins. Such a document would, at least,
provide the academic community with a “complete and concise statement of the
grounds intended to be argued”, as required by the Federal Courts Rules. This may
provide some further insight into how York is reacting to the ruling and what York believes it can overturn in this decision and generally on what basis. It
would also, crucially, enable potential interveners to further assess whether
and how they may wish to apply for leave to intervene in order to assist the
Court with respect to arguments that could potentially be instrumental in determining
the outcome (for example, see Prof. Katz’ blog here).
HPK
August 31, 2017:
PS - Following the above posting, York has replaced the above incorrect statement with the following:
August 31, 2017:
PS - Following the above posting, York has replaced the above incorrect statement with the following:
Many of York University's licences do not permit copyright-protected content to be uploaded directly to Moodle or other Learning Management Systems.
That statement is somewhat ambiguous and hopefully does not suggest that a licensor can impose any conditions on works not covered by the particular licence. Moreover, the issue of whether a licensor can impose enforceable restrictions on users' fair dealing rights as provided by statute is an open question, particularly in light of two Supreme Court of Canada decisions. More about that another day.
Monday, August 21, 2017
Canada's Diva of Doodlers has Definitively Distilled in this Divine Depiction the Diverging Directions of Debate on Canadian Copyright
Giulia Forsythe, Canada's Diva of Doodlers, has Definitively Distilled in this Divine Depiction of the Diverging Directions of Debate on the Canadian copyright front in these two Distinctive Doodles from last weeks October 17, 2017 #OUCEL17 Copyright event that she organized for university copyright professionals at the University of Ottawa.
Here are the slides for my talk.
My talk is depicted above. Michael Geist's is depicted below.
Thanks, Giulia, for the invite and distinguished doodles.
HPK
My talk is depicted above. Michael Geist's is depicted below.
Thanks, Giulia, for the invite and distinguished doodles.
HPK
Rogers Seeks Leave to Appeal to Supreme Court of Canada re Cost Recovery in Voltage Reverse Class Action
Rogers is
seeking leave to appeal the recent Federal Court of Appeal ruling that denied
it cost recovery for compliance with the Voltage court order in the reverse
class action litigation.
Some
background from my blog is here.
A news
report is here.
Rogers’ Leave
to Appeal material is here.
Rogers
summarizes the basis for its leave motion as follows:
Rogers therefore seeks leave to appeal so the Court
can provide guidance on the following issues:
1. What are the obligations imposed
on Canadian ISPs by the Notice and Notice Provisions?
2. Do those obligations supplant
ordinary principles related to third-party discovery orders, and in particular,
the principle that a third party should be reimbursed for the costs it incurs?
It will be
interesting to see if Rogers gets leave, and if so who may wish to intervene.
HPK
Access Copyright’s Costs Motion Material Makes for Interesting Reading
Access
Copyright as the prevailing party in the recently decided trial judgment in the Federal Court is seeking to recover its legal
costs from York University, as is normal. It is asking for a lump sum of $549,703 which consists of
$321,000 for fees and $228,703 for disbursements and HST. Its material filed on
August 10, 2017 is as follows:
York
University will have a chance to file written submissions in response. It may
be noted that cost recovery in the Federal Court is normally only a portion of
the party’s actual costs. It also may be noted that cost recovery normally
proceeds even while an appeal is pending, unless there is a stay order in place
and this is rare. Apparently, York has made no attempt to stay the costs order
process or any other aspect of Justice Phelan’s judgment.
York’s
costs will not become public unless and until it succeeds on appeal and gets an
order for costs below and files material in support of its costs claim. What we
do know so far is that in December 2015, it was estimated that this litigation
would cost York and
contributing institutions “hundreds of thousands of dollars, if not a million”,
according to York GC Maureen Armstrong in an interview
reported on December 29, 2015. I have no information as to whether that
estimate is still valid.
Access
Copyright is seeking a lump-sum award approximating 50% of the expenses
incurred by it to employ its salaried litigation counsel in this litigation and
100% of its out-of-pocket disbursements. The judgment lists three counsel for
Access Copyright. By comparison, York University has five counsel
listed in the judgment from a large outside law firm.
For those
interested in how this case unfolded, there are some interesting details in Roanie Levy’s affidavit.
HPK
Friday, August 11, 2017
Access Copyright Seeks ~$550,000 in Costs from York U for Phase I of Federal Court Litigation
On August 10, 2017 Access Copyright filed a motion for costs which appears on the docket as follows:
Notice of Motion
contained within a Motion Record on behalf of Plaintiff in writing to be
placed before the Court in Ottawa for an Order awarding the plainff a lump
sum of $549,703
in accordance with the award of of costs made in its favour in the Judgment
issued 12-JUL-2017; and such further relief filed on 10-AUG-2017
|
(highlight added)
HPK
My Current Personal Inputs re NAFTA Renegotiations Set to Start August 16, 2017
With the
NAFTA renegotiation set to start on August 16, 2017, I am posting two of my own
personal inputs:
- This is my submission to Global Affairs Canada dated July 18, 2017 on copyright and ISDS
- This is my CIGIOnline op-ed published August 9, 2017 concerning copyright entitled “Canada Can Stand Its Ground on Copyright in NAFTA Renegotiations: It’s all about knowing when to say no”. This was based on the first part of my aforementioned July 18, 2017 submission to Global Affairs.
HPK
Thursday, July 27, 2017
Access Copyright Proposed Post-Secondary Tariffs 2018-2020
Access Copyright
has filed for a proposed Post-Secondary tariff for 2018-2020. Meanwhile, the
Copyright Board has still not ruled on the proposed tariffs from 2011-2017. Meanwhile,
one would expect that York University will appeal and even seek to stay the
recent Federal Court decision and that there may be interventions to assist the
Court. See my comments on Prof. Katz’s
comments and questions, to which I link, concerning this ruling here.
So,
meanwhile, here are copies of what I know to have been filed at the Copyright
Board in time for the July 19, 2017 deadline:
- Colleges Notice of Objection
- Letter from John Cotter – Counsel for Universities Canada
- Universities Canada Objection
- Canadian Association of Research Libraries (“CARL”) Objection (on which I was pleased to provide advice)
No further
comments at this time…
Wednesday, July 26, 2017
Access Copyright v. York University - Some Important Comments and Questions from Prof. Ariel Katz
His blog is entitled "Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss" and begins thus:
Two weeks ago, Justice Phelan of the Federal Court handed Access Copyright a huge victory in its lawsuit against York University.[1] I have followed the case closely and read the parties’ submissions and I have been constantly concerned that York risked snatching defeat from the jaws of victory. Unfortunately, this is what happened. The good news is that many of the Court’s fundamental findings rest on very loose foundations, that I am confident that York’s loss is only temporary, and that if York appeals the decision and handles the appeal appropriately, most, if not all, of the Court’s major findings will be reversed. One way or another, and possibly with interveners assisting the court, one hopes that all essential arguments will be made on appeal. Therefore, this post provides an anatomy of York’s predictable yet totally avoidable loss.
In a nutshell, York has chosen to ignore the most important question in this case, namely whether tariffs approved by the Copyright Board become mandatory on users. The answer to this question carries long-term strategic implications for Access Copyright and for all educational institutions in Canada. Access Copyright understood the importance of this question and argued its case accordingly. York, on the other hand, has chosen to limit its submissions to the narrow question of whether an interim tariff could be mandatory, and refrained from addressing the general question of whether approved tariffs (i.e., final tariffs) were mandatory on users. York has also been eager, it seems, to turn this case into a case about fair dealing, which need not have happened.(highlight added)
Anyone interested in Canadian education and/or copyright law will want to read this blog through and thoroughly to the end.
HPK
Friday, July 14, 2017
Access Copyright v. York U – And All Eyes Over to York U for What's Next
The Good News and the Bad News
The only good news for the Canadian educational community about the
recent Federal Court decision in Access
Copyright v. York University is that the
judgment is, with respect, so clearly and consistently wrong that there is a
strong likelihood of a successful appeal – assuming that York decides to
appeal. An application for a stay of the judgment is presumably being
considered. Otherwise, it is very bad news. It could prove to be very
disruptive very quickly not only to York University but to the entire
educational community in Canada. Moreover, unless the decision is overturned
and preferably stayed in the meantime, there will be greatly increased costs,
chill on innovation and education, and potential chaos.
I am getting a lot of questions about this decision and requests for a
blog comment. Unfortunately, I do not have a lot of time at the moment to do a
lengthy analytical blog by my usual measure. So, here are some quick
observations. Some of this is recycled from my many previous blogs, which can
be retrieved by searching for “mandatory tariff” or “York University”,
etc. Here is one of my more detailed postings
from March 22, 2016.
The Judgment
The Court’s conclusion that the interim tariff is mandatory and
enforceable is incorrect. York made a very narrow and technical argument on why
an interim tariff is it is not mandatory, which essentially entailed that it
was not an “approved” tariff within the meaning of s. 68.2 and it
was not published in the Canada Gazette, as required for an “approved tariff”
pursuant to s. 68(4). The Court stated
in para. 234 that “York’s position, if accepted, would
be a triumph of form over substance. That argument is unsustainable.”
York had chosen not to rely heavily on the CBC v. SODRAC case decided on November
26, 2015 in which the Supreme Court of Canada (“SCC”) ruled that licenses fixed
by the Board under s. 70.2 are not mandatory, having accepted the argument I
made on behalf of Professors Ariel Katz and David Lametti (whose McGill
institute was an intervener and who is now an MP and Parliamentary Secretary
to the Minister of ISED). York said in
its written argument that the decision is “very instructive” and that the
principles are “equally applicable” here. However, York’s lead counsel said
repeatedly in oral argument that the Court need not decide whether a final tariff
would be “mandatory”.
This
issue should clearly be appealed and all possible arguments should be made to
the Federal Court of Appeal, which will hopefully be more attentive to the
reasoning of the SCC and where interveners can make additional useful and
possibly essential arguments that would assist the court. For the convenience
of readers, I reiterate from previous postings that Justice Rothstein stated as follows in
the CBC v. SODRAC decision:
(112) I conclude that the statutory licensing
scheme does not contemplate that licences fixed by the Board pursuant to s.
70.2 should have a mandatory binding effect against users.
…
(113) I find that licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.
…
(113) I find that licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.
To
those hung up upon a possible distinction between s. 70.2 and s. 68.2, in fact,
s. 68.2 was specifically referred to twice in our SCC factum. We also referred to universities
several time in our factum and oral argument at the SCC. The case before the
SCC involved s. 70.2 but the arguments are actually even better for s. 68.2 –
the more general regime.
Indeed,
if a tariff is not mandatory when parties voluntarily come to the Board to
“arbitrate” a dispute, it should be all the more (“a fortiori” as lawyers say) non-mandatory when parties are dragged
kicking and screaming before the Copyright Board and would prefer to clear
their copyright needs in other ways.
The
Court did not appreciate the nature of a tariff – which is that it is mandatory
on the provider of a service but not on a user who doesn’t need the service. As
I’ve said before, for those not familiar with or interested in the technical details
of our argument in the SCC factum that Ariel Katz, David Lametti and I submitted
to the Supreme Court, consider this simple layperson’s analogy. In the old
days, there were “tariffs” for passenger travel on railroads. Such tariffs
would set a maximum cost of, say $10, to travel from Ottawa to Toronto and
required that CN Rail run four trains every day and stop in certain places, or
whatever, etc. But such tariffs did not require the passenger to buy a
Canada-wide all year pass for $3,000 if they only needed to travel to Toronto
or Montreal or Smith’s Falls a few times each year. And above all, such tariffs
did not prevent any passenger from using a plane, car, a Greyhound bus or even
a bicycle to get there from here. That is how “tariffs” work. In return for
some degree of privilege from the government, the regulated party providing the
service and seeking to be paid must submit to upper limits on what can be
charged and accept other terms and conditions, such as the nature and quality
of services that must be offered. Moreover, except in very rare examples such
as a sole bridge crossing with no practical alternatives, there are usually
competitive substitutes available.
The
Court’s reasoning on fair dealing is lengthy and largely oblivious to the
teaching of the SCC in its fair dealing trilogy and particularly in the Alberta
decision of the SCC, which accepted the point I made on behalf of Prof.
Katz’s intervener institute that is absolutely vital to the educational
context, which is that a teacher can decide what is useful for a student and
provide excerpts – or in some cases the whole of a work – for such legitimate
fair dealing purposes. In Alberta, the SCC stated:
[23]
In
the case before us, however, there is no such separate purpose on the part of
the teacher. Teachers have no ulterior motive when providing copies to
students. Nor can teachers be characterized as having the completely
separate purpose of “instruction”; they are there to facilitate the students’
research and private study. It seems to me to be axiomatic that most
students lack the expertise to find or request the materials required for their
own research and private study, and rely on the guidance of their
teachers. They study what they are told to study, and the teacher’s
purpose in providing copies is to enable the students to have the material they
need for the purpose of studying. The teacher/copier therefore shares
a symbiotic purpose with the student/user who
is engaging in research or private study. Instruction and
research/private study are, in the school context, tautological.
Michael
Geist has a good posting on some of the many other problems in
the reasoning on fair dealing. See also Lisa di Valentino’s comments on the fair dealing issues.
The
Court’s failure to appreciate the significance of the three Supreme Court
Canada fair dealing decisions since 2004 is clear in the following comment:
[272] It is evident that
York created the Guidelines and operated under them primarily to obtain for
free that which they had previously paid for. One may legitimately ask how such
“works for free” could be fair if fairness encompasses more than one person’s
unilateral benefit.
While
York’s Guidelines are not perfect and there are better guidelines elsewhere,
that comment is not only harsh but shows a lack of understanding of the basis
of fair dealing. Indeed, the fair dealing provisions (“users’ rights” that must
be given a large and liberal interpretation according to the SCC) are there
precisely to allow “free” use under certain circumstances of material where
permission and/or payment might otherwise be required. That has always been a
cornerstone of copyright law in common law countries and has been codified in
Canadian law since 1924 and American law since 1976.
What’s Next?
In
any case, the main question on everyone’s mind at the moment is what comes
next.
The
immediate issue is how this will affect whatever submissions are made by way of
objection to the Access Copyright’s proposed post-secondary tariff. Objections
are due on July 19, 2017. Presumably, Universities Canada and others are
looking at filing objections and what to say. It will be interesting to see who
represents whom on these objections and what the objections will contain. Obviously,
there is precious little time to factor in the impact of the decision rendered
just one week in advance of this deadline.
Naturally,
everyone is wondering whether York will appeal this decision. The educational
ecosystem from Kindergarten to Post-Doctoral studies is at stake. One cannot
overstate the importance of an appeal in this case, which would no doubt
attract the attention of interveners on both sides of the fence.
However,
it cannot simply be assumed that York will appeal. It will be recalled that
AUCC (now Universities Canada) failed to seek judicial review (“JR”, i.e. an appeal
in layperson’s terms) of the December 23, 2010 Interim Tariff decision from the
Copyright Board that gave rise to the present proceedings. This is an important
point emphasized by the Judge in the current case and was definitely not
helpful to York’s cause. See paras 226 to 231 of the decision.
I
have blogged about this on numerous occasions including right after the interim decision was imposed on
December 23, 2010.
A
JR application at the time might very well might have succeeded and would have
cost a tiny fraction of all the money that has been spent since on the Board
proceedings and on this current case, not to mention all of the ensuing cost
and chaos in the post-secondary world with opting out, model agreements,
etc. The worst thing that could have
happened would have been the Court could have said no at that time. AUCC withdrew a couple of years later, having spent at
least $1.7 million that we know about. Although no explicit explanation of
AUCC’s withdrawal was ever publicly provided, presumably the well ran dry. AUCC
was represented then by the same firm that has represented York U in the
current case that has just been decided. The current court case has presumably already
cost at least $1,000,000 or so according to a 2015
estimate by York University counsel. It is now 2017. So, it may have now cost
a lot more. We don’t know.
Needless
to say, if York doesn’t appeal, there can be no appeal. That is the way the
procedural law and rules work. Even though other universities and colleges
will be directly affected, only York can launch an appeal in this instance. This is not
“judicial review”, where directly affected parties may in principle have standing
in certain circumstances to initiate review. If York fails to step up to the
plate now for any reason, the game is over for everyone in terms of an appeal
of the current decision.
It
is also apparent that the decision may cause immediate problems for York, given
that the Judge issued this very unusual invitation for Access Copyright to apply
immediately for an injunction:
3. The Plaintiff may apply
for an injunction prohibiting the Defendant from reproducing or authorizing
reproduction of all copyright protected works falling within the Approved
Tariff and offering such reproduction for sale, rent or distribution until all amounts of royalties plus
interest are paid.
…
7. The Court shall remain seized of this matter to address
issues arising from this Judgment and Reasons including but not limited to the
calculation of amounts which are due or may become due.
(emphasis added)
How this can be squared with the fact that
Phase II - which was supposed to deal with issues of what is actually in Access
Copyright’s repertoire and questions relating to quantum – is potentially years
away? Indeed, paragraph 219 of the judgment says that:
[219] The copying of works in Access’s repertoire,
the scope of that repertoire, and the accounting and payment by York for such
copying by its employees is deferred to Phase II of this action (the Damages
Phase).
So,
it’s not clear that there is any basis at this time to determine “all amounts
of royalties”.
Given
the potential for chaos at York as the fall semester approaches and if there is
an injunction in place, not to mention at countless other campuses if Access
Copyright succeeds in getting a new interim tariff from the Copyright Board
based on this decision, one would assume that some urgent thought is presumably
being given to seeking a stay of this judgment. Stays of judgments pending
appeal are unusual. But here is a case where there are clearly serious issues,
a strong likelihood of success, irreparable harm and even chaos in the educational
sector and where the balance of convenience clearly favours the academic
community carrying on with the status quo. Potential interveners may be also interested
in this, but the first move has to come from York.
Normally,
a Notice of Appeal must be filed within 30 days. However, days in July and
August do not count for this calculation. So, York technically has until
October 2, 2017 to file any notice of appeal. However, one hopes that York will
file it as soon as possible along with any motion for a stay, so that the rest
of the academic community in Canada can have some confidence and hopefully some
degree of certainty as to how it should proceed.
Not
only is the content of this decision, which is seriously disparaging to York in
innumerable ways, unfortunate. The timing could hardly be worse. It comes more than
a year after the final argument that took place on June 22-24, 2016. It comes
after the holiday weekend, which means that a large number of people in the
academic community will be on holidays or off campus for other reasons during
July and August. It comes less than two months before the fall term. It comes
well after the six month norm for judges to
issue decisions.
This
is potentially the most disruptive copyright decision we have ever
seen in Canadian jurisprudence. Whatever happens at the Copyright Board on the
new proposed tariff will likely take many years to determine, given past experience
– except of course for another interim tariff, which the Board has shown
remarkable alacrity in granting in this instance on the day before Christmas
eve in 2010. If the Federal Court of
Appeal won’t or worst of all is not even asked to fix this situation immediately,
some kind of legislative fix may become necessary.
Access
Copyright naturally issued a very quick “feel good” press release about the
current case stating that:
Access Copyright would welcome the opportunity for all
interested stakeholders to entertain a meaningful dialogue with a view to
resolving any outstanding issues between them and establish a relationship that
emphasizes the common ground between those who create and those who teach and
learn.
However,
with its windfall victory that will presumably be undone on appeal and even
stayed in the meantime (assuming that York University steps up to the plate),
now is not likely a very propitious time for the academic community to resolve
any outstanding issues with Access Copyright anywhere but in the Courts. The resolution
that might work would be for Access Copyright to offer a useful license at a sufficiently
low rate that would attract post-secondary institutions. Not to mention
refraining from suing its clients. That is unlikely to happen as long as the
current decision is in place.
Let’s
hope that those in the educational copyright community can somehow enjoy what’s
left of the summer.
HPK
Subscribe to:
Posts (Atom)
Posts
