Blacklock’s Botched Blaming & Begging

Blacklock’s Holly Doan has posted a rather hysterical, histrionic, inaccurate, and misleading post that, among other things, misrepresents Prof. Michael Geist’s blog. This Blacklock’s bravura is telling – if for no other reason than its failing to suggest ANY credible ground of appeal of this heavily fact-based and legally solid decision. Once again, here’s the judgment:

1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>

Not to be outdone, Ms. Doan’s husband, Tom Korski, appears in a sadly softball podcast interview.

Blacklock’s has kindly provided both of these for public consumption without a paywall:

https://www.blacklocks.ca/this-will-be-law-september-1/#cdnpoli

https://x.com/mindingottawa/status/1801211869656449445

Both of them misstate the careful findings of fact and law by Justice Roy, whose exemplary judgment deals with the use of “licitly” acquired passwords and fair dealing.

Those entities with competently designed websites with “effective” TPMs who understand basic copyright law have nothing to fear from this judgment. Indeed, they should welcome it because it reminds everyone that illicit hacking of a password or content sharing that is not fair dealing can lead to big trouble. The manner in which the work is obtained will go to the fair dealing analysis, but does not necessarily preclude fair dealing.

After all these years and its long litany of litigation losses, Blacklock’s still offers only an individual membership level online. Indeed, its botched business model seems to be that of selling single subscriptions to government departments, posting “inaccurate, deceptive or inflammatory articles”, and then using ATIPs to identify and pursue what it considers to be illegal sharing of passwords and/or content.

If Blacklock’s wants to fundraise off a devastating loss (which is a Donald Trump trick), then Blacklock’s should not mislead potential sympathizers, if there are any. This is clearly unlikely to attract small donors who might otherwise contribute to save endangered elephants or support other meritorious causes. The big players may predictably conclude that any appeal would likely fail and thus simply reinforce Justice Roy’s decision, which in any event is actually helpful to them. Moreover, the SCC is very unlikely to take this case if leave is somehow sought because the SCC doesn’t review fact finding or rewrite statutes. In this case, the statute is what it is and what it has been for the last 12 years re TPMs and the last 100+ years re fair dealing – including several notable decisions since the landmark 2004 CCH decision. Moreover, Blacklock’s Hail Mary fantasy of a legislative fix is extremely unlikely to happen. Both Liberal and Conservative governments have known for decades that controversial copyright revision is not a hill to die on and can indeed be fatal to the careers of whichever politicians lead the charge.

It should be said that the Department of Justice ought to be very pleased with the result of this litigation and the work done by Alexander Gay, General Counsel. Likewise, CIPPIC and Gowlings with respect to its partner James Plotkin’s exemplary intervention.

BTW, where’s @bsookman’s belated Blacklock’s blog?

HPK

Big Black Eye for Bad Built Blacklock’s Business Model: Long Live Felicitous Licit Liberty!

 Blacklock’s lengthy litany of litigation losses has now been extended notably with the long-awaited Federal Court  judgment from Justice Roy regarding TPMs and Fair Dealing that is both monumental and minimal in interesting and important ways. See 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>

• It is monumental because it is 67 pages of careful, detailed, heavily fact-based findings that are likely bullet proof on appeal because there are no “palpable and overriding” errors and no extricable legal conclusions that are wrong in any way. Indeed, its correctness and common sense are commendable.
• It is minimal because it confirms the obvious point that there someone who “licitly”, i.e. legally, accesses a website without hacking or otherwise illicitly circumventing a TPM can share content consistent with Canadian fair dealing law that goes back to 1911 and the SCC’s venerable “implied right” doctrine.
• No animals were injured in this case – there was no hacking, descrambling or other illicit activity involved. The Government was doing what it paid for and doing its job.
• Enlightened media providers such as the Globe and Mail, NY Times, etc. should  welcome this decision because their sophisticated websites can’t be hacked and the sharing of their content e.g. via cutting pasting for fair dealing purposes is good for business.
• Contrary to some high-powered  social media whining, there is no basis for any argument and no record, in any case, for any argument based on the 2020 Canada-USA “CUSMA” agreement.
• If Blacklock’s (“BR”) is even thinking of an appeal, it may first wish to consider that its likely lack of success will dramatically reinforce this decision. All the more so if it gets to the SCC. But let Blacklock’s  appeal – it will be a “Go ahead, make my day” moment for me and many other observers and potential interveners.
• The likelihood of a legislative intervention on this issue and in response to this decision is close to absolute zero.
• Congratulations to Alexander Gay for the Attorney General of Canada (“AGC”) and James Plotkin (recently made partner  of Gowlings) for CIPPIC who both did superb work.

 Likely to be continued…

 HPK

(P.S.: Let me remind readers, as  always, that nothing on this blog is legal advice.)

 

Blacklock's Loses Bigly in Federal Court - Part I

May 31, 2024

 JUDGMENT in T-1862-15

THIS COURT’S JUDGMENT is the following:

1. It is hereby declared that, having purchased the only type of subscription

available, which was allowing the acquisition of the password needed to access

articles produced by Blacklock’s Reporter, Parks Canada’s use of the password in

the circumstances of this case constitutes fair dealing under section 29 of the

Copyright Act.

2. It is hereby declared that the licit acquisition and use of a password, if it is

otherwise a technological protection measure, does not constitute the

circumvention of the technological protection measures of the Copyright Act.

3. There is no order as to costs.

"Yvan Roy"

Judge

***

Federal Court docket for T-1862-15

https://www.ippractice.ca/file-browser/?fileno=t-1862-15 

More to follow - this is a 67 page and very thorough decision.

PS June 1, 2024:

Yet another Blacklock's big black eye in its long litany of losses: a week before its devastating loss in the Federal Court, Blacklock's loses badly & expensively in lengthy Ontario courts litigation to avoid paying its former lawyer, Yavar Hameed <https://canlii.ca/t/k4tlk> HT @MarkBourrie

Update on Access Copyright – The Demise of a Dubious Enterprise?

As I’ve said before in my February 23, 2024 blog,

In 2018, the Province of Alberta and dozens of K-12 school boards sued Access Copyright for a refund of $25 million they allegedly overpaid for Access Copyright licences for 2010, 2011 and 2012.

Access Copyright, on the other hand, has defended and  counterclaimed for a potentially much larger amount based upon subsequent Copyright Board tariffs.

The Plaintiffs (consisting of “the Ministries of Education of 10 Canadian provinces and territories (excluding British Columbia, Ontario and Québec) and each of the school boards in Ontario” achieved a massive victory in the litigation, as I’ve written. Access Copyright (“AC”) suffered a monumental loss.

AC has, not surprisingly, decided NOT TO APPEAL this decision – presumably because it was so clearly correct, extremely well reasoned, and very thorough at 121 pages. As I said in my previous blog, the decision would have been “ likely to be upheld in any appeal.” The very likely confirmation of its loss in the Federal Court of Appeal would have been even more devastating for AC, not to mention resulting further legal fees, costs, and accruing interest. Moreover, by not appealing, AC can resort more immediately to the old, although desperate and rarely successful, strategy of using a litigation loss to try to convince the Government that the legislation is broken and needs to be fixed.

As the  decision states at para. 36, the Plaintiffs were seeking $25,493,109.36 and succeeded in their  claim. AC’s counterclaim was totally dismissed. Given the considerable passage of time in this litigation, the nature of  the Plaintiffs’ claim, and the accrual of interest, I am estimating that AC is now on the hook for about $30,000,000. That sum represents about half of AC’s total assets of $59,964,000  and almost 50% more than its Net Assets, based upon its last published audited financial statements for 2022. Clearly, this result will have a major and conceivably even existential impact on AC’s operations and the viability of its business model.

The elephant in the room, of course, is the Supreme Court of Canada’s landmark decision on July 31, 2021 in York University v. Canadian Copyright Licensing Agency (“Access Copyright”), 2020 FCA 77 (CanLII), [2020] 3 FCR 515, <https://canlii.ca/t/j6lsb> which held that Copyright Board tariffs, such as those on which AC depended, are NOT mandatory. I made instrumental submissions in that case on behalf of CARL. This was preceded by the Court’s 2015 decision in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0> in which  Professor Ariel Katz, Prof. David Lametti (as he then was in 2015) and I were very influential in the important result that helped to pave the way for the York decision.

As a result of the York decision, the Copyright Board can do nothing to rescue AC – absent a drastic revision of the Copyright Act that would undo decades of jurisprudence and be not only unwise but quite possibly even unconstitutional.

Sadly, the Copyright Board has a history of incongruously keeping at least one obsolete collective on life support. The Board has managed to keep the Canadian Private Copying Collective (“CPCC”) artificially alive based on a very different legislative mechanism, namely the de jure mandatory private copyright levy, which I, on behalf of the Retail Council of Canada, played a major role in managing to all but eliminate. When is the last time anyone you know bought a blank CD, much less used it to record music? The last publicly reported financial data from the CPCC is from 2017. So, the CPCC has had enough oxygen to pay its small staff,  lawyers, and lobbyists etc. enough to lobby for another day. Here's what they are currently  absurdly seeking in the Pre-Budget Consultations in Advance of Budget 2024:

The CPCC asks that the government amend the Copyright Act to make the private copying regime technologically neutral, requiring large technology companies to finally pay their fair share to copyright holders. The focus of these amendments would be to allow the regime to apply to both audio recording media and devices.

This would supposedly require “minimal revisions to the Copyright Act ” to “make it possible for the CPCC to ask the Copyright Board of Canada to approve a levy on the smartphones and tablets where Canadians now make their private copies”.  They say that these proposed changes will “reinstate a true marketplace solution.” A truly “marketplace solution” for private copying levies would be to see them disappear through repeal of Part VII of the Copyright Act. There are very few, if any, other comparable jurisdictions with comparable private copying regimes that provide comparable levies  and these notably do NOT include the USA, Australia or the UK. Hopefully, the Canadian Government will, upon reviewing the history of this levy and the previous absurd attempts by CPCC to impose it on other types of media and devices, will know how to say no – or better still, to just ignore the ridiculous request and repeal Part VII. The Federal Budget 2024 appears to have wisely ignored the CPCC’s absurd advocacy.

AC has already announced that it is downsizing and falsely blames its troubles on the 2012 legislation that added the word “education” to the fair dealing provisions. That legislation only confirmed the obvious and is totally consistent with several Supreme Court of Canada decisions. IMHO, as I’ve suggested many times, AC can only justify its continued existence if it can provide a valid license for a viable repertoire offering real value at a low enough price to attract the educational community. It should not be coddled with bad legislation or licensing deals with the Federal government that have arguably unnecessary and perhaps even “sweetheart” deals, such as the initial licences that was key to its launch in the 1980s and which apparently and inexplicably continues to date.  The royalty rate for 2016 to 2017 was $621,755.25 and has increased since then by the Consumer Price Index. The deal also includes Copibec, the Quebec counterpart to Access Copyright.

Now, just in time for Passover 2024, the Federal Budget 2024 does NOT accede to Access Copyright’s perennial, incessant, and misleading whining about trying to eviscerate fair dealing rights for educators and others. It bears frequent repetition that Canadian fair dealing rights for users – as spelled out in the statute and upheld consistently by the Supreme Court of Canada – stop far short of what the American’s have provided for users’ fair use rights since 1976 in 17 USC 107.  OTOH, Budget 2024 does include a potentially positive copyright item “to allow the circumvention of digital locks to diagnose, maintain, or repair a product. This will enable consumers to repair their devices where they choose.”

 We shall watch with interest the potential demise of unnecessary, dubious, and obsolete copyright collectives facing existential challenges and which serve nobody’s interest beyond the lawyers, lobbyists, and executives that persist in prolonging their inevitable demise. 

 

A New and Important Book by Prof. Myra Tawfik on Canada’s Copyright History

Canada has slowly asserted an independent copyright position on the domestic and international fronts in spite of intense and immense pressure from the USA and the UK. That independence has taken a long time to achieve, and it has been denied or imperiled many times – including now.

Being something of a copyright nerd, I have a lot of books on Canadian and international copyright. Three of these books deal in various ways with the origins of copyright law in Canada in the 19^th century.

The latest and most detailed book is by Prof. Myra Tawfik of the University of Windsor law faculty.  Her monograph published in 2023 is For the Encouragement of Learning: The Origins of Canadian Copyright Law  Myra Tawfik (Toronto, ON: University of Toronto Press, 2023). (388 pages). Prof. Tawfik has excellent credentials and was cited twice in the landmark 2021 Supreme Court of  Canada decision of York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), <https://canlii.ca/t/jh8bc>. I am honoured that I was also cited in that decision, along with Prof. Ariel Katz and others. I also provided arguments on behalf of CARL that were very instrumental in the decision.

Prof. Tawfik’s book examines in great detail early Canadian statutes and practice from 1824 to 1867, and a summary of how all of these early developments were influential in what was to follow up to January 1, 1924 when the essence of Canada’s current Copyright Act was proclaimed into force “100 years after Francois Blanchet rose in the  Lower Canadian House of Assembly to introduce his Bill for the encouragement of learning” in 1824. 2024 is the centenary of this 1924 milestone which was itself a centenary of the 1824 event. It is too bad that the Canadian copyright academy appears to have thus far overlooked this centenary.

Canada finally stood on its own when in 1924, paradoxically by implementing a statute very similar the UK act of 1911, and finally cut the legal cord with the UK of the Colonial Laws Validity Act with the Statute of Westminster of 1931.

This 19^th century history has been ignored for too long, perhaps because it has generally not been seen as immediately or very obviously relevant to the kind of copyright litigation we have seen in the last many decades and are now seeing.  That said, the Courts occasionally do explicitly reference the origins of Canadian copyright law – for example in Justice Binnie’s opinion in the 2002 Théberge decision, which Prof. Tawfik does indeed mention.

Her book begins with an interesting introduction that highlights her thesis that Canadian copyright is a fusion of British common law tradition and European civil law tradition. She suggests that, in spite of the  colonial treatment of Canada in the 19^th century, Canada (consisting mainly of “Upper Canada” and “Lower Canada” as they were then known) developed a normative approach aimed at “the encouragement of learning”.  The struggle to achieve these “imperatives” continues to this day, as Access Copyright and its protagonists deny the history and destiny of Canadian copyright law and seek to cut back on fair dealing by, among other thigs,  eliminating the word “education” from s. 29 of the Copyright Act.

In the period on which she mostly focuses, namely 1824 to 1867, registration was required for those seeking copyright rights. She has spent 15 years meticulously examining available data about the registrations from that time. Interesting lists are included in the appendices. She goes into great detail about the differences between Upper and Lower Canada in those days. Indeed, there are still some significant differences in how Quebec institutions, collectives, practitioners, and scholars approach copyright law compared to the rest of Canada. So, this background is not only interesting but potentially important.

The main theme of her book is that “…copyright’s earliest focus was on advancing literacy and learning by providing incentives to authors to disseminate their works. These authors were teachers, and the works they were producing  were school books.” This is well documented by her painstaking examination of registration activities and legislative developments in the 19^th century and up to 1924.

Her first chapter deals with “Contextualizing Copyright in Nineteenth-Century British North America” and how British law, deriving from the 1710 Statute of Anne, and British common law, were imported to a certain extent into pre-confederation Upper and Lower Canada. This provides a fascinating political and historical perspective of the early 19^th century in Canada and makes one wonder all the more about how confederations even took place in 1867 and the differences that still survive. There is a discussion about the “Right of Petition”, whereby persons could petition a legislature to buy multiple copies of a book for educational purposes.

Chapter 2 deals with the crucial role of the 1710 Statute of Anne and of American law, as enshrined in the US Constitution to “promote the progress of science and the useful arts.”

Chapter 3 deals mainly with the evolution of copyright law in Lower Canada. Interestingly, it shows that French law was not a part of the 19^th century developments in Lower Canada and the “droit d’auteur” doctrines played no role until the early 20^th  century, when Canada implemented moral rights in its copyright law.

Most of the balance of Prof. Tawfik’s book focuses on the importance of school books, their essential role in the education of children, and the politics and legal efforts to achieve these goals. This includes Chapters 5 and 6 on the 1832 Copyright Act, and Chapters 7 and 8 on the UK Copyright Act of 1842, including how it “put a tax on knowledge in Canada”.

Chapter 9 is an important look at copyright in the “Province of Canada” and a look at registrations as “proxies for overall trends in authorship and printing and publishing.”

Chapter 10 recounts the post-Confederation attempts by Canada to sever copyright ties with England, still very much our colonial master, by virtue of being able to disallow any Canadian law it did not fancy. The heroic Prime Minister Sir John Thompson even made a special voyage to London in 1894 to deal with Canadian copyright but tragically died en route. Canadians should never forget his efforts and his famous quote cited by Sara Bannerman and myself characterizing Canadian authors at that time  as “belonging rather to the future than the present.”

The book lives up to its promise in the introduction of showing how the “normative tradition of a particular body of law” can be useful to judges to “interpret its modern applications”. Indeed, Prof. Tawfik has demonstrated the focus on the encouragement of Canadian books and their essential production, protection, and injection into the Canadian educational system as a guiding principle throughout the 19^th century in the various components of what is now Canada. Accordingly, it is fitting that there has been great interest in the last decade or so in the historical background of Canadian copyright law – and in tracing this back to the early, mid and late 19^th century.

An indispensable companion to Prof. Tawfik’s book is Prof. Sara Bannerman’s 1913 The Struggle for Canadian Copyright, which begins with the 1842 British legislation and goes up to and including up to and even after 1971, the last major milestone in the extremely important Berne Convention.  This book “deals primarily with Canada’s experience  with the Berne Convention between 1886 and 1971.” I am quite honoured to see my name mentioned in the acknowledgments of this important book. Prof. Bannerman, who holds a Canada Research Chair at McMaster University, brings the perspective of an accomplished scholar who is not a lawyer to this important period. Another useful book is Dominion and Agency: Copyright and the Structuring of the Canadian Book Trade, 1867-1918. by Eli MacLaren of the Department of English at McGill University,. This was published in 2011. I am pleased to have both of these books on my shelf. Together with Prof. Tawfik’s recent book, they comprise a remarkable trilogy.

I can enthusiastically recommend all three of these books to any and all of the following:

·       Lawyers who may need to point out the normative tradition, the DNA, and other aspects of early Canadian copyright law and their relevance to modern Canadian copyright;

• All Canadian copyright academics;
•  Members of Canada’s library and archive community;
•  All Canadian post-secondary and public libraries;
•   Policy decision makers at the K-12 and post-secondary levels in Canada;
• Any public servants concerned with copyright policy in Canada; and,
• UK, American, Australian and other foreign copyright scholars who wish to be well informed about Canada’s copyright history.

 HPK

Access Copyright Adds To Its Lengthy Litany Of Litigation Losses

It is easy to lose track of how many major decisions that Access Copyright has LOST in the last twenty years, which include three straight losses in the Supreme Court of Canada (CCH in 2004, Alberta in 2012, and York in 2021) and now a very notable Federal Court decision that is likely to be upheld in any appeal.

The latest is the landmark ruling by Justice Aylen of the Federal Court in Province of Alberta et al v. Access Copyright 2024 FC 292, rendered February 22, 2024.

I have quoted at length from Justice Aylen’s ruling because it is very long (121 pages) and detailed and will be a challenge even to experienced copyright lawyers to read carefully on short notice. For whatever reason, it does not have a table of contents. But it is a “must read” for every copyright lawyer, educator and copyright policy official in Canada. It was issued very quickly and decisively, following final arguments just over a month ago on January 17 and 18, 2024. At times in this blog, I refer to Access Copyright as “AC”. I refer to the plaintiffs, Province of Alberta et al, as the “Consortium”.

 Justice Aylen states the issues, as agreed by the parties, at the outset:

 

[3] The parties have brought a motion for summary trial in which they have jointly asked the Court to answer the following three questions:

1. Have the Plaintiffs been licensees from 2013 onward?

2. If the Plaintiffs have not been licensees from 2013 onward, are the Plaintiffs nevertheless liable in equity to pay Access Copyright?

3. If the Plaintiffs are not liable in equity to pay Access Copyright, is Access Copyright entitled to retain the 2010-2012 overpayment in any event?

 Spoiler alert – here is the bottom line of the ruling at page 121:

THIS COURT ORDERS that:

1. It is declared that the Plaintiffs overpaid Access Copyright for tariff royalties during the years 2010, 2011 and 2012 by an amount equal to $2.35 per full-time equivalent student [Overpayment]. The total amount of the Overpayment as paid by each Plaintiff, exclusive of pre-judgment and post-judgment interest and inclusive of the Copyright Board-set interest factor and taxes, is as set out in Schedule B to the Statement of Claim.

2. It is declared that the Plaintiffs were not licensees of the Approved 2010-2015 Tariff from 2013 to 2015.

3. It is declared that the Plaintiffs are not liable to Access Copyright in equity, or otherwise, in relation to any of the claims advanced by Access Copyright in this proceeding.

4. It is declared that Access Copyright is not entitled to retain the Overpayment.

5. Access Copyright shall pay to each of the Plaintiffs a refund of the Overpayment, in the amounts as set out in Schedule B to the Statement of Claim.

6. Access Copyright shall pay to the Plaintiffs pre-judgment interest on the Overpayment, calculated pursuant to subsection 36(1) of the Federal Courts Act.

7. Access Copyright shall pay to the Plaintiffs post-judgment interest on the Overpayment, calculated pursuant to subsection 37(1) of the Federal Courts Act.

8. Access Copyright shall pay to the Plaintiffs their costs of this motion and the underlying proceeding calculated based on the mid-point of Column III of Tariff B [the Tariff], with the exception of the documentary production costs which shall be calculated based on the mid-point of Column IV of the Tariff.

9. Access Copyright shall pay to the Plaintiffs their reasonable disbursements of the motion and the underlying proceeding. In the event that the parties are unable to reach an agreement, the disbursements shall be assessed by an assessment officer.

10. Access Copyright’s counterclaim is hereby dismissed.

 “Mandy Aylen”

Judge

 

The essence of the Consortium’s claim as stated by Justice Aylen in the very lengthy and detailed recitation of facts was this:

 

[36] On February 16, 2018, prior to the Supreme Court’s decision in York University, the Plaintiffs commenced this action against Access Copyright seeking, among other relief: (a) a declaration that Access Copyright’s tariffs as certified by the Board are not mandatory; (b) a declaration that the Plaintiffs overpaid Access Copyright for the years 2010, 2011 and 2012 by an amount equal to $2.35 per FTE student; and (c) payment by Access Copyright of a refund or monetary damages to the Plaintiffs in the amount of the overpayment, namely $25,493,109.36, together with pre-judgment and post-judgment interest. (highlight added)

 Further:

 

[83] In a letter dated May 4, 2016 [2016 Letter], the Plaintiffs requested a refund from Access Copyright of the difference between the per FTE student rate of $4.81 that was paid in 2010 through 2012 under the continuation tariff and the $2.46 per FTE student rate that was ultimately certified, in accordance with section 15(5) of the Approved 2010-2015 Tariff. The total amount sought by the Plaintiffs was $25,493,109.36. (highlight added)

 

Note that this figure does NOT include interest due.

 This is a  lot of money but the matters of principle are even more important. Justice Aylen pays significant attention and reliance on the Supreme Court’s 2021 decision in the York case, which came down in the midst of this litigation, and the SCC’s 2015 decision in CBC v. SODRAC. I was counsel for CARL in both these cases. I acted for David Lametti, as he then was, and Ariel Katz in the SODRAC case, and made complementary submissions to Ariel Katz in the York case. The York decision relied on the brilliant scholarship of Ariel Katz in his “Spectre I” and “Spectre II” papers. I am proud to have worked with Ariel over the years to demolish the myth of the “spectre” of mandatory tariffs. He deserves the main credit.

 AC’s main argument was that it was entitled, based on the very amorphous mostly common law of “equity”  and other stretches of the common law, to keep this money. But the Copyright Act does not provide for equitable relief for an entity such as AC that is neither a rights owner or exclusive licensee. She rules that:

 

[259] Accordingly, I find that none of Access Copyright’s asserted common law doctrines apply so as to prevent the Plaintiffs from seeking a return of their royalty overpayments.

 

Justice Aylen has some scathing findings re other aspects of AC’s submissions:

 

[192] While this is sufficient to dispose of Access Copyright’s meritless assertion that participating in the tariff-setting process at all levels (before the Board, this Court, and the Federal Court of Appeal) constituted an offer to pay, the rationale for why the Plaintiffs would have participated sheds further light on the absurdity of Access Copyright’s assertion. At the relevant time, the Supreme Court had not yet decided York University, so it was possible that the Plaintiffs would be bound to a statutory licence. If that were ultimately the case, it is obvious that it was in the Plaintiffs’ interests to participate and advocate for a tariff lower than the one being proposed by Access Copyright ($15.00 for 2010 to 2012 and $9.50 for 2013 to 2015), which was an increase of $10.19 and $4.69 per FTE over and above the royalty under the Approved 2005-2009 Tariff.  (highlight added)

 

[224] To interpret the Copyright Act as allowing equitable remedies that permit recovery of a remedy provided for under subsection 68.2(1), but not otherwise available to Access Copyright under the Copyright Act (because the Plaintiffs were not licensees), would be incompatible with the object of the Copyright Act and result in absurdity. Parliament has struck a careful balance between users’ and creators’ rights, as well as with respect to the risk of collective societies developing monopolistic powers. In striking that balance, Parliament chose to make statutory licenses voluntary. To permit Access Copyright to obtain through equity what it cannot obtain under the Copyright Act would turn the copyright regime on its head, by effectively making voluntary statutory licences mandatory through the use of equitable remedies. Under the circumstances, it is “irresistibly clear” that the statutory scheme precludes Access Copyright from seeking the equitable remedies it claims in the circumstances of this proceeding [see Moore, supra at para 70]. (highlight added)

 

[227] This concern lays bare one of the problems with Access Copyright’s equitable claims. While Access Copyright has gone to great lengths to assert in its submissions that it is not making an infringement claim (notwithstanding the language used in its pleading), Access Copyright grounds its equitable claims in the Plaintiffs’ acts of compensable copying. But compensable copying in the absence of a licence is merely an act of infringement—an unauthorized exercise of the owner’s exclusive right. As stated by the Supreme Court in York University, a person who has not paid or offered to pay is not licensed and may be liable for infringement. To permit Access Copyright to obtain an equitable remedy for compensable copying would have the effect of using equity to make the tariff de facto mandatory or permitting Access Copyright (a non-exclusive licensee) to recover for infringement, either of which would turn the copyright regime on its head. (highlight added)

 

[228] Through its equitable claims, considered collectively, Access Copyright ultimately seeks payment by the Plaintiffs of an amount equivalent to the royalties the Plaintiffs would have owed had they been licensees, which would result in the inequities and absurdities addressed above. (highlight added)

 

[229] For these reasons, I conclude that, in the circumstances, it is not open to this Court to award the equitable remedies sought by Access Copyright as to do so would turn the copyright regime on its head. (highlight added)

 

[273] For the reasons stated above, my determination in relation to each of the issues is as follows:

1. Were the Plaintiffs licensees in 2013, 2014 and 2015? No.

2. If the Plaintiffs were not licensees from 2013 to 2015, are the Plaintiffs nevertheless liable in equity, or otherwise, to pay Access Copyright an amount equivalent to the tariffs royalties for 2013 to 2015? No.

3. If the Plaintiffs are not liable in equity, or otherwise, to pay Access Copyright an amount equivalent to the tariff royalties for 2013 to 2015, is Access Copyright entitled to retain the 2010 to 2012 overpayment in any event? No.

 

As to costs, Justice Aylen rules:            

 

[296] Accordingly, I find that the Plaintiffs are entitled to their costs to be calculated in accordance with the mid-point of Column III of the Tariff for all steps in this proceeding, other than documentary production steps which shall be calculated in accordance with the mid-point of Column IV of the Tariff.

 My overall assessment:

 

1.      This ruling is  incredibly important, detailed, meticulous, and comprehensive. It reviews the evidence, the arguments, and the applicable case law in unusual and commendable detail.

2.      I would say, in my opinion and based upon my long experience, that any appeal by AC is unlikely to succeed.

3.      Needless to say, an affirmation by the Federal Court of Appeal would be even further devastating to Access Copyright.

4.      Moreover, any appeal might spark a cross appeal as to costs, which is the one aspect where AC got some sympathy. Column 3 costs, as awarded to the Consortium, are at most a small fraction of actual costs.

5.      Although his cases technically began in 2018, there was a lengthy leadup between the parties at the Copyright Board and in the lobbying corridors. The Consortium deserves credit  for fighting for justice for Canadian educators for so long.

6.      This ruling is anything but shocking. It confirms that Canada, like the USA, does NOT have mandatory tariffs and that fair dealing is important and a key aspect of the copyright bargain.

7.      Given the recent downsizing and restructuring of AC and the departure of Roanie Levy, it will be interesting to see if it now takes a less aggressive litigation approach or doubles down and becomes even more aggressive.

 Finally, this case provided an interesting contrast in advocacy and approach:

·       AC’s positions were very aggressive and sought to turn the Copyright Act “on its head”, as the ruling repeatedly states. AC’s oral advocacy, as led by Sarit Batner of McCarthy’s, was very dramatic, perhaps even melodramatic and too much so, even allowing for the “meritless” and “absurdity” aspect of many of AC’s key submissions..

·       The Consortium’s positions and oral advocacy, led by Aidan O’Neill of Fasken,  were much more restrained, concise, and even understated. In the result, this approach was clearly far more convincing in this instance.

 

Let me remind readers, as  always, that nothing in this blog is legal advice.

 HPK

Note: I've corrected the above to reflect that the final arguments were on January 17 & 18, not February 17 & 18.

Province of Alberta et al v Access Copyright - Court File T-326-18

 I watched with great interest the two-day summary judgment hearing on January 17 and 18, 2024 in Province of Alberta et al v. Access Copyright. This particular proceeding has been going on for almost five years, and the overall confrontation between these parties for much longer. I would expect, with the inevitable appeals, that it could go on potentially for years to come. There is much that I could say about all this, but I won’t say it now.

I will, however, say this. For the purpose of its so-called equitable claim in this litigation, Access Copyright argued in court that the 2012 amendment to the Copyright Act adding the word “education” to fair dealing was not significant – since it wants to assert that the educators had no basis to rely on greater fair dealing rights and somehow, via equity, should be forced to pay up for their allegedly uncompensated use since then. As Access Copyright wrote in its memorandum for the court, “In sum, as the Plaintiffs themselves made clear, nothing within the Copyright Modernization Act converted fair dealing into free dealing.”

 On the other hand, Access Copyright is loudly and flagrantly contradicting this position outside the court room in its aggressive campaign to get rid of the word “education”, since it asserts on the lobbying front that the addition of this word education has cost it over $200 million dollars.

e.g. “TORONTO [July 13, 2023] – Due to changes in fair dealing provisions in the Copyright Act, since 2012, Canadian writers, visual artists, and publishers - an indispensable part of Canada’s culture - have been deprived of over $200 million in unpaid royalties under tariffs certified by the Copyright Board of Canada”

Taking contradictory positions in different forums at the same time is, at the very least, unusual and potentially problematic. Go figure.

BTW, the educators relied very heavily on the SODRAC and York decisions from the SCC, wherein the submissions of Prof. Ariel Katz, Prof. David Lametti as he then was in the SODRAC case, and myself were determinative.

HPK