WIPO Broadcasting Treaty: Could - or Should - Canada Make a Difference?

The idea of a Broadcasting Treaty has been kicking around at WIPO  for almost 25 years. I have frankly always regarded it as a solution in search of a problem. As always, my views here are purely personal.

The 42^nd (yes – forty second) Standing Committee on Copyright and Related Rights (“SCCR”) meeting is about to take place in Geneva from May 9-13, 2022. The eminent authority Bernt Hugenholtz aptly calls this “Groundhog Day in Geneva” in a paper that is a must read.

The architecture of broadcasting, transmission, retransmission, and just about everything  concerning the internet itself has changed in countless ways since 1996.

Yes – there has been some “piracy” since then, depending upon how “piracy” is defined by increasingly aggressive copyright litigants and increasingly receptive maximalist courts. But there has been no crisis. Broadcasters, transmitters, retransmitters, content owners and various intermediaries are doing better than ever, and vertical and horizontal integration continue to converge power in the hands of fewer and fewer and ever more internally conflicted entities. None of these converged powers any longer are remotely proxies for the interests of educators, scholars, students, libraries and billions of consumers who are paying more, getting less, and seeing increasing government control over all of this.

Here is the latest draft text of the proposed treaty.

It appears that the Canadian delegation attending in Geneva next week will be:

CANADA

 

Owen RIPLEY (Mr.), Associate Assistant Deputy Minister, Department of Canadian Heritage, Gatineau

 

Samuel GENEROUX (Mr.), Senior Policy Analyst, International Copyright, Canadian Heritage, Gatineau

 

Jamie ORR (Ms.), Policy Analyst, Canadian Heritage, Ottawa

It is understood. but not readily understandable, that the Innovation, Sciences & Economic Development department (formerly Industry and formerly Consumer & Corporate Affairs) (“ISED”) will be involved only virtually. The absence of ISED from personal attendance at an important meeting at WIPO is extraordinary. For decades, ISED had the lead role in international relations. Once upon a time, for several years, I was the “head of delegation” at such WIPO meetings on behalf of the then Consumer & Corporate Affairs Department, as it was called before its rebranding as ISED.  However, ISED now seems sadly to be Missing In Action (“MIA”) in all matters related to copyright, the internet, broadcasting, communications, etc. The Ministers of both ISED and Heritage are both Francophones from Quebec, a “civiliste” Canadian province with varying degrees of nationalist ambitions and separatist tendencies over the years and excessive political influence and where copyright and culture have usually been conflated, elevated and confused well beyond the norms of the common law canon.

One is hearing from various sources that Owen Ripley, who has had a remarkably rapid series of promotions at Canadian Heritage despite some controversy, after which he was actually futher promoted, for being too “chummy” with industry, is being touted by Canada to be the next Chair of the SCCR. This could in turn lead to even greater things – as the current DG of WIPO, Darren Tang can attest. He was chair of the SCCR just prior to his appointment as top official at WIPO.

Mr. Ripley, who was called to the bar only 12 years ago, has been extensively lobbied by “maximalists”,  He had presumably had a leading role in the very controversial recent Canadian Bills C-11 (regulating the internet as broadcasting), C-18 (taxing Google etc. for linking to news media), the forthcoming Online Harms initiative and the inclusion  in the recent 2022 Federal Budget of:

•         Terms extension of 20 years with no provision for a mitigating registration system, notwithstanding suggestions by former US Register of Copyright Maria Pallante (always a champion of publishers and content owners) and Canada’s current Minister of Justice, David Lametti, PC., MP, when he was a copyright law professor at one of Canada’s leading law schools
•         Potentially disastrous references to forthcoming legislation that could:

o   Eliminate “education” as a fair dealing purpose – notwithstanding that teaching (including multiple copies for classroom use) has been hardwired into the US Copyright Act since 1976  https://www.law.cornell.edu/uscode/text/17/107 

o   Undo the Supreme Court of Canada’s two decisions declaring that Copyright Board tariffs are not mandatory for users – notwithstanding that there are no “mandatory” tariffs or anything remotely equivalent in the USA.

Needless to say, none of this belongs in a “Budget” package – let alone legislation – where it will receive virtually no parliamentary scrutiny. Moreover, the current minority Liberal Government has been immunized from criticism by what is effectively a coalition without benefits with the second so-called opposition party and the lack of any adequate current or likely leadership from the main opposition party.

Bottom line

The maximalist agenda is thriving in Canada. I can frankly not remember any batch of such extreme and unwise bills and policies  in my four decades of involvement or historically at any time before.

If Mr. Ripley becomes the Chair of the SCCR, which obviously would be with blessing of the Canadian government, one can be assured that he would very competently and quickly promote a very maximalist “Broadcasting Organizations Treaty”. This would be welcomed by broadcasters (whatever that term means anymore), content owners, intermediaries and other corporate interests. Not so much by users everywhere. It will be very interesting to see how the developing countries - who are in the majority at WIPO -  line up on this.

HPK

PS - as tweeted by @Jamie_Love on May 9, 2022: "WIPO #sccr42 has decided to split the Chair by year. Aziz Dieng from Senegal for 2022. Owen Ripley from Canada for 2023. Peter Labody from Hungary, vice-chair of SCCR 42. It was an unusually contested election, Group B v the Africa group. Still no female SCCR chair."

- as tweeted on May 9, 2022 by @ThiruGeneva: "#SCCR42 agrees that Mr. Aziz Dieng will assume the chair of the committee until #SCCR43 (in 2023). Mr. Labody will remain vice-chair until 2024. Mr. Ripley will be vice-chair until 2023; in 2023 he will assume the chair of SCCR until 2024."

Oops! He Did It Again: Budget 2022 Hides Copyright Time Bomb By Throwing Parliamentary Scrutiny Under the Omnibus Bus

 

(Merriam Webster)

There is a ticking time bomb buried deep in the 2022 Federal Budget. It is deviously hidden at page 274 in Annex 3 in a manner so as to avoid detection, debate and the democratic process itself. This is contrary to a basic campaign promise Justin Trudeau made in 2015. It saddens me to say that he and Finance Minister Chrystia Freeland, both in process and substance, appear to have caved in to greedy lobbyists to the detriment of democracy.

In 2015, Justin Trudeau made a campaign promise to do better than Stephen Harper, who it will be recalled gave away an extra gratuitous 20 years of copyright protection for nothing in return to the American recording industry in an omnibus bill just before he lost the 2015 election:

We will not resort to legislative tricks to avoid scrutiny.

Stephen Harper has used prorogation to avoid difficult political circumstances. We will not.

Stephen Harper has also used omnibus bills to prevent Parliament from properly reviewing and debating his proposals. We will change the House of Commons Standing Orders to bring an end to this undemocratic practice.

 Justin Trudeau broke that promise in 2018 – and, oops, he’s done it again even more blatantly and harmfully in Budget 2022 where he and Minister Freeland announced  in a manner that only those who knew what to look for would find:

Amendments to the Copyright Act

In Budget 2022, the government proposes to introduce amendments to the Copyright Act to extend the general term of copyright protection from 50 to 70 years after the life of the author as agreed under the Canada-United States-Mexico Agreement.

The government is committed to ensuring that the Copyright Act protects all creators and copyright holders. As such, the government will also work to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders, as well as a modern and innovative marketplace that can efficiently serve copyright users.

 That may sound abstruse, abstract, irrelevant or maybe even positive to most Canadians who naively or, for selfish financial reasons, think that, if copyright is good, more and stronger copyright must be even better. However, those who understand these issues know that it will “tax” and harm all those concerned about education, research, culture, innovation, learning, science, and creativity itself. After all, the entire history of the arts, science and culture is built upon achievements from the past. If that past is locked up too long, there will be less progress in the future.

This is a flagrant yet stealthy insult to democracy. By using omnibus budget implementation legislation, there will be nothing but token and extremely little if any debate or parliamentary scrutiny on these measures. Any hope of opposition is lost since Canada no longer has a viable opposition party that can do its job in a minority parliament. The NDP’s ill-conceived three year peace, silence and non-aggression pact with Justin Trudeau, which has likely guaranteed its own irrelevance and perhaps even oblivion in the future, will ensure that there is no effective opposition to this budget or the massive omnibus implementation bill that can soon be expected.  

All Canadians, ranging from pre-schoolers to the most senior scholars and creators, whether interested in innovative science and research or just plain fun reading, music listening, film or art enjoyment will be deprived of access to the “public domain” for an additional 20 years (meaning life + 70) going forward. Assuming that the law takes effect on January 1, 2023, that would include the likes of foreign luminaries such as Noel Coward, Pablo Picasso, J.R. Tolkien, Leonard Bernstein and  John Lennon  and Canadian icons such s  Northrop Frye, Yousuf Karsh, Marshall McLuhan, Lester B. Pearson, and Pierre Trudeau himself. It will be good news for certain publishers, other copyright content owners such as foreign movie and music industry multinationals, collectives and their executives, lobbyists and – of course and as always – lawyers for all of the above. It will cost the Canadian public at least about $474 million a year with a present value of about $4.176 billion, based upon my admittedly facile extrapolation to the Canadian context from a careful study conducted for the Government of New Zealand in 2009 in contemplation of the ill-fated TPP.

This amendment will be a one way ratchet that cannot conceivably ever be undone. As framed in the budget, it ignores the recommendations from many experts including Prof. David Lametti, as he then was before he was elected and became Minister of Justice, and Maria Pallante, the former Register of Copyrights in the USA,  that there be mandatory registration to take advantage of the 20 year extension. This would clear away dead wood and still allow commercial interests to exploit works that still have a market value. Here’s my submission from the so-called consultation process, which has apparently been ignored along with those of many other well-known copyright scholars. If the Government can’t figure out how to implement a registration system at this time, it can at least enable the enactment of registration regulations by the Governor in Council. Such a deferral of details does not require rocket science.

The hidden budget time bomb signals that we can expect this and potentially other even worse copyright measures to be included very soon in an omnibus bill that will receive virtually no parliamentary scrutiny and be immune from the usual bulwarks of democracy that Justin Trudeau and Chrystia Freeland have deemed dispensable. This is nothing if not ironic and frankly shocking – though hardly surprising given Trudeau’s past record.

What is even worse in the copyright proposals in Budget 2022 is the second paragraph that suggests, in coded but fairly explicit terms to those in the know, the promise to remove “education” as a recognized fair dealing purpose in s. 29 of the Copyright Act. It sadly seems that the responsible Minsters Champagne & Rodriguez are unaware that “teaching (including multiple copies for classroom use), scholarship, or research” has been hardwired into American copyright legislation as an essential example of  “fair use” since 1976. They are probably unaware that three decisions of the Supreme Court of Canada since 2004 on fair dealing were rendered before “education” was explicitly included in s. 29 of the Copyright Act in 2012. I was involved in one of these. They are probably unaware that the repertoire of Access Copyright, who has been doing most of the whining, has very little place in Canada’s colleges and universities. Engineering, accounting, psychology and almost all other post post-secondary students are not required to read Margaret Atwood.

But that’s not all, as they say on TV commercials. Included and still even worse and nearly explicit, given the context,  is the promise to make Copyright Board tariffs mandatory for users.  All of this would undo two Supreme Court of Canada decisions from 2015 and 2021 in which I also had a direct and influential role as counsel working with Prof. David Lametti, as he then was, along with Prof. Ariel Katz in the first case (CBC v. SODRAC).  CARL was my client in the later case of York v. Access Copyright where our intervener arguments prevailed.

The result of such an amendment would be an affront to the Supreme Court and a century or more of legislative history. This would roughly be the equivalent of legislating that nobody has the right to get from Ottawa to Toronto except by flying on Air Canada – unless they pay Air Canada’s fare for an all-year Canada-wide pass  or even for a multi-year period even if they never actually travel from Ottawa to Toronto that year. In turn, that fare would be set by a small, very expensive, very inefficient, and extremely dysfunctional Federal tribunal which takes as much as a decade to render usually retroactive and frequently decisions that are routinely reversed in the courts. In this case, that would be the Copyright Board, which was deemed “dated, dysfunctional and in dire need of reform” by a Senate committee in 2016 and which has seen no significant improvements since then despite a very large increase in its budget. Indeed, the Board has not even held a hearing in almost five years since September, 2017 with nothing scheduled until October 18, 2022 and its website has become even worse, despite enormous expenditures.

This will not be the first time that Trudeau has played this Harper trick.  
Bill C-86, which was given first reading on October 29, 2018, was 884 pages long. It was an omnibus budget implementation bill that touched innumerable issues unrelated to an concept of “budget” and amended dozens of acts unconnected with the budget. It caused much mischief in trade-marks law and launched the College of Patent and Trademark Agents, an expensive solution in search of a problem imposed with great expense upon already highly regulated law firms for no good reason. In turn, even C-86  was not the first Liberal omnibus bill that that broke that important campaign promise.  It followed Bill C-74 earlier in 2018, being the first budget implementation  bill in that sad year.

Sadly, at this time, the NDP has muzzled itself. And the Conservatives can hardly be expected to criticize the same undemocratic methodology that they themselves perfected under Harper.

It is time for Canadians and the organizations that profess to be concerned with education, research, culture and innovation in Canada to demand democracy and transparency when it comes to potential enactment of major deleterious legislation that is so detrimental to the public interest.

Prof. Adam Dodek, the former Dean of Common law at the University of Ottawa, has written an important article about the legal, including constitutional, issues that could potentially arise from the use and abuse of omnibus legislation.

It is absolutely essential in an age where democracy is under threat everywhere, potentially even in Canada, to ensure that legislation is dealt with democratically and not be thrown under the omnibus bus.

HPK

PS: Here's a very important open letter to Ministers dated April 13, 2022 from 25 top IP scholars about these issues and the process.

CIPPIC Rebuffs Blacklock’s Bid to Block Intervention in Summary Judgment Motion

www.blacklocks.ca

Blacklock’s has a lengthy list of losses in its long litany of litigation against the federal government and many of its agencies. I have blogged about this many times.

It will be recalled that Blacklock’s lost decisively on fair dealing back in its first test case against Finance Canada in a judgment dated November 10, 2016 that was not appealed.  Blacklock’s had, for whatever reason, not pleaded anything about Technical Protections Measure (TPM) circumvention, so there was no ruling on that issue. It has attempted to refloat its definitive defeat on fair dealing via new claims in numerous proceedings based on alleged TPM circumvention.  As I have reported, Blacklock’s was unable to stop the Attorney General’s summary judgment motion that may well finally end this this litigation saga.

Blacklock’s latest loss is its unsuccessful attempt to stop CIPPIC from intervening in the summary judgment proceeding. As most readers well know, CIPPIC has a long list of interventions in the public interest. I was and still remain proud to have been CIPPIC’s outside and lead counsel in its first and very influential intervention which was in the BMG v Doe case back in 2004-2005. See here in the Federal Court and here in the FCA. This was the beginning of mass copyright litigation in Canada. The reasoning in these judgments has helped keep Canada relatively free so far from the outrageous excesses we have sometimes seen in the mass trolling cases in the USA. Here’s a pair of complementary articles that I and opposing counsel wrote back in the day in  2005 when such civilized controversies, confrontations, and collaborations on commentaries were still possible.

Since then, CIPPIC has been involved with many interventions in copyright and other cases – including in the SCC.

Flash forward to 2021-2022. Blacklock’s fiercely resisted CIPPIC’s motion to intervene in the summary judgment motion on the basis that:

“…CIPPIC has no “legitimate” interest in the outcome of the proceeding, that the scope of its proposed intervention does not differ from that of the AGC; that it is not in the interest of justice to allow the proposed intervention because BR will suffer prejudice as a result of CIPPIC’s “perceived bias” and “apparent vendetta” against it, and that it will result in an “inequality of arms” and unduly complicate this already protracted litigation”

and that Blacklock’s:

‘…will be prejudiced because CIPPIC is “motivated by bias”, that its Executive Director and General Counsel has a “vendetta” against BR, and is on a “crusade” as a result of past litigation before the Federal Court and the Ontario courts, and that “[his] position and influence over CIPPIC negates any possibility of fairness”’

(highlight added)

Unsurprisingly, the Case Management Judge Sylvie M. Molgat rejected these very surprising and unusual allegations. The result is that CIPPIC will be now be permitted to file a 20 page Memorandum of Fact and Law. The Supreme Court of Canada now allows interveners only 10 pages, so this is significant. CIPPIC will also be permitted to make present oral submissions, for such duration as may be determined by the hearing judge.

Here is CMJ Molgat’s Order, dated January 21, 2022, which is unusually detailed for such an order. Readers should note that interventions are rare in the Federal Court.

Here is CIPPIC’s motion to intervene – which provides a preview of what we may expect to see and hear. CIPPIC will be represented by James Plotkin who has just recently joined Gowling WLG.

I’ll post updates as this moves forward. The motion will be worth watching for sure.

 HPK

 

Tanya Woods v. University of Ottawa – Later Developments Following the Chet Baker Pending Lists Class Action

 I have not blogged about the Chet Baker Pending Lists class action for a long time. Here’s what I wrote on my blog in 2012. I noted potential financial implications for CIPPIC  (the legal clinic at University of Ottawa) (“U of O”), and its then lawyers and students, including Ms. Tanya Woods:

Here’s the judgment of the 2011 Ontario Superior Court:

“approving the fees of Class Counsel in the amount of $6,250,000 plus taxes and directing that such amount be paid out of the Settlement Trust”:

Baker (Estate) v. Sony BMG Music (Canada) Inc., 2011 ONSC 7105 (CanLII), <https://canlii.ca/t/fr2dn>

I had also written about this case in 2011.

Here are some later developments regarding Ms. Woods’ subsequent litigation against the University of Ottawa:

•         Woods Statement of Claim
•        University of  Ottawa Statement of Defence
•        Trial judgment in Woods et. al. v. University of Ottawa, 2021 ONSC 5720 (CanLII), <https://canlii.ca/t/jhz3s> awarding Ms. Woods $328,296.82.

Ms. Woods has filed a Notice of Appeal. The appeal has not yet been “perfected” - so it will be a while before we see the factums.

The most recent development is the costs decision of January 5, 2022 “awarding no costs”.

 I will post further developments when available.

 HPK

Never Say “Never on a Sunday”. Has Blacklock’s Bottomed Out with Another Black Eye – Yet Again?

(Here's the famous "Never on a Sunday" chorus of the Connie Francis classic)

Blacklock's protracted attempt to stop summary judgment proceedings that it had long ago agreed to has resulted in yet another black eye in its long losing litany of litigation.

 Let me repeat myself from my recent blog wherein I repeat my quotation from the Attorney General of Canada (“AGC”) submissions:

 OVERVIEW

1.            This is a bold move by the Plaintiff to set aside a discretionary Order of the Case Management Judge Molgat and avoid a motion for summary judgment which it has been trying to avoid for almost two years. There is no basis in fact or law to set the Order aside. The motion must be heard.

2.            On April 4, 2019, the Attorney General of Canada (AGC) proposed a motion for summary judgment in respect of the Technological Protective Measures (TPM) claims contained in the Parks Canada action at a Case Management Conference (CMC). The TPM claims are the only remaining dispute between the Plaintiff and the AGC, given that Justice Barnes had already concluded that the institutional use of the articles published by the Plaintiff constitute a “fair dealing” under the Copyright Act. The results of the proposed motion would dispose of fourteen actions that are before the Federal Court. An agreement was reached by all counsel at the CMC. With the exception of the Plaintiff, everyone in attendance at the CMC, including the Case Management Judge, had a clear understanding on what was agreed to.

3.            Upon being advised that the AGC would be leading evidence in the motion for summary judgment, a matter clearly provided for under the Federal Court Rules, the Plaintiff reneged on the agreement and spent the next two years trying to derail the motion for summary judgment. As explained in this factum, the conduct of counsel for the Plaintiff has been contemptuous of the Court, and include such things as the disregard of numerous Court Directions.

4.            After two years of resisting and after it was clear that the Plaintiff could no longer avoid the motion, the Plaintiff gave notice that it would discontinue the action. The surprise announcement came at a CMC in July 2021, after the Plaintiff was ordered to comply with the Directions of the Court. However, the Plaintiff did not file the Notice of Discontinuance immediately. The AGC used the delay to serve and file a Counterclaim and it renewed the motion for summary judgment under this new pleading, the very motion that the Plaintiff had been resisting. The Case Management Judge allowed the Counterclaim and directed the parties the set dates for the hearing of the motion. The Plaintiff now appeals from that Order.

5.            The AGC contends that the Order of the Case Management Judge was appropriate and necessary. There are no errors of law, mixed fact and law or fact. The motion will dispose of the remaining thirteen actions and, more specifically, it will dispose of all TPM claims before the Court, even in the Related Actions. The order of the Case Management Judge is in keeping with Rules 55 and 385, which allow her to make decisions that allow for the most expeditious means of adjudicating the claims that are before this Court.

6.            The AGC requests that the appeal be dismissed, with costs.

Blacklock's announced during as per para. 4 above on a Friday that it would discontinue its Parks Canada action, which is one of its long litany of more than a dozen cases against the Federal Government and several of its agencies.

However, for whatever reason, it did not immediately file its discontinuance. So, over the ensuing  weekend, the Attorney General of Canada ("AGC") amended its pleading and, with considerable ingenuity and professional dedication, served on a Sunday a counterclaim on Blacklock's by email, the receipt which Blacklock's lawyer acknowledged.

Blacklock's didn't actually play its discontinuance card until first thing the following Monday morning - but the AGC's amended pleading and counterclaim were already there. 

Despite Blacklock’s enormous efforts, the Case Management Judge ruled that the AGC’s amended pleading and counterclaim was validly filed – on a Sunday – and ahead of time of Blacklock’s belated discontinuance.

So - more than a year later and after an enormous motion record from Blacklock's the Court has ruled in favour of the AGC. See the Judge’s ruling on Blacklock’s unsuccessful appeal attached here, which for some reason has not yet been posted on the Federal  Court’s website but which is a public and precedential document.

Although Blacklock's could theoretically appeal this Judge’s order, success would frankly seem very unlikely. Any Federal Court lawyer will understand the standard of review and other obstacles that Blacklock’s would face.

There's some important procedural lessons in this case for Federal Court procedural nerds. Most notably that “Never on a Sunday” may be a great song for Boomers but it doesn’t apply in the Federal Court. Service on a Sunday may very well be good service – both legally and, in this case, for the taxpayer.

The real lesson is “Never Say ‘Never On Sunday’”….

More importantly, it looks like the AGC can now get to proceed to dispose of Blacklock's belated TPM argument by way of a summary judgment that could effectively bring an end to the long litany of losses by Blacklock’s in the Federal Court.

 It will be recalled that Blacklock's lost badly in its first Federal Court trial on the issue of fair dealing nearly five years ago  - and got nowhere on the issue of TPMs because the issue had not been pleaded. Somehow, Blacklock's was able resurrect the TPM issue in subsequent proceedings - but this would seem to be a long shot and fair dealing will continue to loom large. CIPPIC may become involved when this matter moves forward substantively.

It's hard to understand how Blacklock's sustains its business model and funds its long list of losses in the Federal Court. It must be admitted that Blacklock's is nothing if not tirelessly – some might say tediously – tenacious.

However, the end of all of this may now be in sight - to the relief of taxpayers and very likely most informed copyright lawyers from coast to coast.

 HPK

 PS - Justice McDonald's ruling of August 25, 2021 is now officially posted here: 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2021 FC 872 (CanLII) <https://canlii.ca/t/jjblk>