Wednesday, March 31, 2021

My Response to Consultation on Canadian Copyright Term Extension

I submitted my personal comments in response to the Canadian Government's problematic consultation on How to Implement an extended term of Copyright Protection in Canada

Here's my submission.

Here's my bottom line of recommendations:

a.      Adopt the suggestion by former US Register of Copyrights Maria Pallante for a registration regime for the final twenty years of a life + 70 term;

b.     Establish a full and proper consultation over a period of at least six months following publication of the proposed details – and ideally the wording of any legislation and regulations – implementing such a regime;

c.      Insist on decoupling this consultation from the clearly vapor ware and diversionary announcement of parallel consultations involving the “internet of things” and “online intermediaries”;

d.     Veto any option that would involve extended collective licensing, involvement of collectives and/or involvement of the Copyright Board in any manner; and,

e.      Recognize that there is no need for undue haste to comply with the apparent deadline of December 31, 2022 when the consequences of improvident compliance are so high and the risk of potential non-compliance may be manageable and perhaps even minimal.


Tuesday, March 02, 2021

Let’s Listen to the Former American Register of Copyrights about How to Deal with the Last 20 Years of the Extended Life + 70 Copyright Term


As the absurd and inexcusably short deadline of March 12, 2021 to comment on the Government of Canada’s  very disappointing consultation document on how to implement the CUSMA term extension obligation looms, interested parties may wish to note the following.

Maria Pallante is the former Register of Copyrights in the US Government. When the Register speaks, the world listens. She is now  the president and chief executive officer of the Association of American Publishers, an organization not known to embrace the public domain. Nobody would ever suggest that Ms. Pallante is or ever has been a copyleft or user friendly person. Nor would anyone question her distinguished qualifications and expertise.

 Here is what Ms. Pallante had to say in 2013 about the final 20 years of the life + 70 concept in a very important paper she published while still Register of Copyrights.


Perhaps the next great copyright act could take a new approach to term, not for

the purpose of amending it downward, but for the purpose of injecting some

balance into the equation. More specifically, perhaps the law could shift the burden

of the last twenty years from the user to the copyright owner, so that at least in

some instances, copyright owners would have to assert their continued interest in

exploiting the work by registering with the Copyright Office in a timely manner.107 And if they did not, the works would enter the public domain.108


107. If U.S. history with respect to renewal registration of copyright is any indication, very few copyright owners—in this context, heirs and successors in interest rather than the author herself—will actually do so. See U.S. COPYRIGHT OFFICE, STUDY NO. 31, supra note 9, at 220 (stating that, of works registered in 1931–1932, one third of musical compositions, 7% of books and 11% of periodicals had been renewed). In contrast, a 2007 study by Stanford University found that an average of 30.8% of

books published between 1923 and 1963 had their copyright registration renewed. See STANFORD UNIV. LIBRARIES & ACADEMIC INFO. RES., ’23–’64 IMPRINT COPYRIGHT DETERMINATOR: FINAL REPORT 4 (2007), available at FinalNarrative_


108. This should not, as far as I can see, present insurmountable problems under international law. The Berne Convention requires a minimum term of life plus fifty years, defers to member states as to the treatment of their own citizens, and provides the term of protection of the country of origin for the works of foreign nationals. See Berne Convention for the Protection of Literary and Artistic Works, supra note 2, art. 7. At the same time, copyright owners who choose to assert their continued interests would have the full benefit of the additional twenty years, subject to the requirement of additional registration.

(highlight added)

The Columbia Journal of Law & the Arts, Volume 36, No. 3 (2013)  p. 337

I wonder whether whoever gave the arguably irresponsible opinion to the responsible Canadian Ministers that requiring registration for the final 20 years of a life + 70 terms  “raises serious questions” re Canada’s international obligations was aware of Ms. Pallante’s position that registration for the final 20 years was  apparently just fine under international law. Does whoever gave this opinion to Canadian Ministers know more than Ms. Pallante?

 The Government bureaucrats on the recent very unhelpful consultation call would not identify who was responsible for the very unfortunate consultation document, other than that is was both departments. Maybe it’s ATIP time for someone with a lot of patience and perseverance.

 And maybe, for once, Canada should do as the Americans say, though not as they do.

 And, BTW, the American’s have been a scofflaw flouting international copyright law and the WTO and the Berne Convention for the last two decades. Maybe Canada can learn from this as well…

 Finally, anyone who thinks that these Government  proposals will have any benefit to anyone other than Access Copyright and perhaps other collectives and not be a lifeline and/or a make work project for the Copyright Board is either na├»ve or willfully blind.

 BTW, h/t Sean Flynn and Ariel Katz.


Thursday, February 25, 2021

February 25 2021 Online discussion about CDN Government Consultation paper on how to implement an extended general term of copyright protection in Canada

The government held a one-hour online discussion about its Consultation paper on how to implement an extended general term of copyright protection in Canada.

Responses are due on March 12, 2021. That’s not a misprint.

There were lots of questions but very few if any specific answers. My questions were as follows and in my personal capacity:

  •  Why the extremely short one month deadline for comments on the consultation paper?
  •  Who is the principal author of this paper?
  •  Why has the registration proposal for the 20-year extension recommended by INDU and several experts been effectively taken off the table?
  •  What are the resource/cost implications for the Copyright Board of the various options?

Here are some takeaways from today’s session:

·        The Government seems to have decided in advance that requiring registration and presumably some fee for owners to take advantage of the extra 20 years “raises serious questions” re Canada’s international obligations. That is frankly highly debatable. It would be interesting to see whatever opinion was responsible for the Government’s clear predilection to take this off the table.  BTW, this was the solution proposed by INDU, and several experts – including myself.

·        I asked who was the principal author of the consultation paper – but was told only that it was both departments.

·        In response to several questions about the short timeline to respond, the repeated answer was that there were other consultations also coming up soon on the “internet of things” and “online intermediaries.” I asked what these were even about and why these issues were so urgent, when we are facing a deadline of the end of 2022 to implement a CUSMA obligation that could potentially cost Canadians Billions of $$$ and negatively affect access to knowledge, innovation, etc.  No specific answer.

·        There was confirmation that some of the options could have resource/cost implications for the Copyright Board.  Handing any of this over to the Copyright Board? What could possibly go wrong? I didn’t ask that question. 

        The last point for the moment but not the least - the Government officials indicated that any legislation might not be a standalone bill. Does this mean another middle of the night sneak attack in an omnibus bill with no possibility of meaningful hearings or debate? Sadly, the Liberals have broken a campaign promise and taken up and perfected the Stephen Harper tradition of omnibus bills that include stealth inclusion of copyright provisions in omnibus bills not subject to normal scrutiny, such as Stephen Harper's frankly shameful inclusion in the 2015 eve-of-the-election budget bill,  of all things, of an extension to 70 years for sound recordings. There was no consultation or debate, of course. It was a simple and gratuitous giveaway to the American recording industry through the efforts of its Canadian surrogate Music Canada and a triumph of lobbying over logic and evidenceas I have previously said.


Friday, February 12, 2021

Copyright Term Extension - March 12 2021 Deadline to Respond to Very Disappointing Document

 ICYMI, see here:$file/consultation-implement-extended-term-copyright-protection-Canada-en.pdf

Deadline to respond is March 12. 2021. There is no conceivable explanation  for such a short deadline given that:

  • The disappointing and very questionable content of the document requires significant expertise in domestic and international copyright and treaty law in order to to adequately respond
  • Those few who have such expertise are likely to be very busy with leave to intervene applications in the Supreme Court of Canada in the Access v. York case due a few days earlier
  • There is no need to rush this, given that Canada has until the end of 2022 to implement our unfortunate capitulation in CUSMA
As always, this is not legal advice. But, from a political standpoint, folks may wish to immediately protest the inexplicably short consultation deadline.


Wednesday, January 06, 2021

The Copyright Board Begins 2021 with Less Transparency and More Potentially Dysfunctional Delays


Just in time for Christmas, 2020, the Governor in Council implemented the long-awaited Time Limits regulations regarding the Copyright Board – which were published on December 23, 2020, ironically more than 1.5 years after the preliminary announcement and consultation.

The Time Limits in Respect of Matters Before the Copyright Board Regulations: SOR/2020-264 are now in place.

This does not appear to solve and does appear to continue and confirm the main problems I identified on April 29, 2019. The Board often keeps cases open for long after a hearing has supposedly concluded or should have concluded. Normal courts and tribunals just don’t do that. These regulations explicitly permit this to be done.

Here’s the deal:

Proposed tariff

2 The Board must make a decision with respect to the approval of a proposed tariff under subsection 70(1) or 83(8) of the Act

·        (a) if the Board holds any written or oral hearings in respect of the proposed tariff, within the period of 12 months after the day that is fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board; and

·        (b) in any other case, before the day on which the effective period of the proposed tariff begins.

Royalty rates or terms and conditions

3 The Board must make a decision with respect to the fixing of royalty rates or their related terms and conditions, or both, under subsection 71(2) of the Act within the period of 12 months after the day that is fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board.

Final day for submissions

4 If, on or after the day fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board, the Board or a case manager fixes another day as the final day on which any party may present their written or oral submissions to the Board, that later day is not considered to be the final day for the purpose of determining the 12-month period referred to in paragraph 2(a) or section 3.

            (Highlight and emphasis added)

So, the Board or a case manager can keep a case open for a long, long time. And that has happened many times.

And as if that’s not enough, there's still an "exceptional circumstances" loophole.

Extension of time limit

6 (1) The Board or a case manager may, in exceptional circumstances, give a direction or make an order that extends a period referred to in section 2 or 3 and sets out the extended period and the exceptional circumstances that justify the extension.

            (highlight and emphasis added)

I commented through the official consultation process at the time to the officials in charge of this project on May 27, 2020 here.

One of the possible contributing factors to the Board’s perennially dilatory delivery of decisions that nobody wants to acknowledge may be its apparently unique disincentive mechanism for retired members to finish off any work relating to pending decisions in a timely manner. For example, it took former Chair William Vancise almost four years after his retirement to finish off his pending decisions at the Board.

Whatever the reason for the unusual, if not unique, open-ended nature of this provision for retired members, it certainly does not encourage confidence in the expeditious renderings of decisions. Judges in the Federal Courts get only 8 weeks to finish off their decisions after they cease to hold office. Supreme Court of Canada justices have six months after they retire. The Canadian Judicial Council has specifically pronounced that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances. In some provinces, such time lines are included in legislation.” The Federal Court, Federal Court of Appeal and Supreme Court of Canada routinely render decisions on matters much more complex than any Copyright Board case in six months following the hearing.

The PMNOC (patented medicines) regime – which involves extremely complex evidence and hearings involving huge amounts of money – must now be completed from start to finish in the Federal Court – including the judgment – within 24 months. I’ve discussed this in my submission on the Copyright Board reform process on 2017.

In fact, here’s a very recent important complex 92 page PMNOC decision from the Chief Justice himself of the Federal Court rendered in exactly 24 months from start to finish as required by law. See Allergan Inc. v. Sandoz Canada Inc., 2020 FC 1189 (CanLII), <>.

Overall, these new Copyright Board regulations would appear to accomplish nothing other than to legitimize and confirm a culture of delay that is unique among Canadian courts and tribunals and likely by any international comparative measures. In the USA, copyright royalty decisions are rendered within 11 months start to finish – because that’s what the law requires.

The US Copyright Tribunal has a hard deadline requirement. It must issue its decisions within 11 months as follows:

§352.2   Timing.

The Copyright Royalty Judges will issue their determination within 11 months of the date of the post-discovery settlement conference or 15 days before the expiration of the existing rates or terms in a proceeding to determine successors to rates or terms that will expire on a specific date, whichever date first occurs. The date the determination is “issued” refers to the date of the order.

(highlight added)

Above all, let’s be frank here. The Copyright Board rarely holds more than two or three contested hearings a year and usually and lately less  or even none and rarely issues more than five actual “tariffs” per year, many if not most of which are uncontested or settled on consent.  The Board rarely releases more than one or two substantive decisions a year – and sometimes less. The many tariffs that are uncontested or dealt with on consent should not create the impression that the Board has a large workload, despite Prof. de Beer’s controversial study from 2015 that incongruously managed to parlay the Board’s own data of 74 previous tariffs then to date into the astonishing, incredible and frankly surreal number of 852. This study appears to have been instrumental in getting the Board another million a year in its budget. See my detailed critique of Prof. de Beer’s “statistical” methodology and analysis here. Even the Board’s own figure of 74 was exaggerated, since this figure reflected a number of minor “redeterminations” and other less than significant events.

But it was is still the Board’s own number, as calculated from the Board’s own posted information – now unavailable thanks to the Board’s expensive, new and much less useful website. Still, this is less than 10% of Prof. de Beer’s number of 852. Prof. de Beer’s problematic analysis is cited in the Government’s unconvincing rationale and explanation for the new regulations.

Here from my 2015 blog are Some Comparative Observations & Stats on the Copyright Board, Selected Canadian Tribunals & the Supreme Court of Canada.

The Board’s new and very expensive  $757,548.50 (+?) website manages to make it even more difficult if not impossible to extrapolate the analysis that I was able to do – pro bono and at my own initiative  – to criticize Prof. de Beer’s study or, indeed, to track the past or present workload and efficiency of the Board.

Indeed, the Board’s new website is a serious step backwards in terms of transparency and utility. The only obviously needed improvement – which could have been done years ago for little if any cost  – was to provide a functioning search facility. This was not rocket science. Lots of Boards and government sites had this without Decisia. It remained dysfunctional for as long as I can remember, despite regular large fees paid for third party website maintenance. After much kvetching from me, the Board’s decisions from 2020 are now on Canliibut only for 2020 and none of this batch is very significant. Indeed, the Board’s website is not even up to date for the listing of 2020 decisions. For example, some of the earlier decisions from 2020 that are now on Canlii aren’t even on the Board’s own website.

There is no reason whatsoever why Canlii wasn’t long ago given the Board’s whole decision and tariff database back at least to 1990.  There would be virtually zero cost in making this happen. The older pre-1990 stuff is on the CPR database and I’m sure that the Board must have it all in digital format.  It would be shocking if it did not.

Again all this could have been at virtually zero cost. I’ve raised this and asked the Board about it many times with no satisfactory or sensible answer. The absence of the Board’s decision from Canlii since 1990 is nothing short of an affront to the concept of access to justice and transparency. This can still be remedied at zero cost – but the Board appears intent on keeping its decision record  and a lot of other information as obscure as possible – and even more so than before with its new website. This new website was supposed to provide  “an intuitive architecture and an improved navigation system”.  It is conceivable that, in the eyes of an uninformed non-lawyer member of the public who is totally unfamiliar with the Board or copyright law, the new website might initially seem more attractive than the old. But that is not the Board’s audience. Even with all my prompts,  the Board still only has 49 followers  - most of whom were already well in the loop.

The Board held no hearings in 2020 and has postponed the three that were scheduled with no new date in sight. Whatever the reason, it surely has nothing to do with COVID. The rest of the Canadian justice system at all levels up to and including the Supreme Court of Canada has adapted to COVID and even managed to make most aspects of the hearing process faster, easier and cheaper using Zoom and other long tried and true technology – such as online filing.

The Copyright Board goes into 2021 with a new Chair, namely The Honourable Luc Martineau from Canada’s Federal Court. We wish him well. Hopefully, his experience at the Federal Court, which is vastly more productive and efficient than the Copyright Board by any measure, will help to counteract the ingrained and now, regrettably, continued culture of systemic delay that has been confirmed by the new regulations. He is the first judge from the Federal Courts to be the Chair of the Copyright Board, which is consistent with one of the implicit suggestion in the only published comment of which I’m aware from the outgoing Chair Justice Robert Blair, who retired as Chair after only term. Justice Blair stated in 2018, in the context of the Board’s expertise or lack thereof, that: “ The Chair must be a sitting or retired superior court judge (where very little intellectual property work, much less copyright work, is done), and to date has not come from the Federal Court system where they actually know something about those subjects!”

However, the Board continues into 2021 with a Vice Chair and Secretary General who are both non-lawyers.  This has never been the case before that I can remember – which goes back to the 1980’s. Moreover, both of these individuals hail from the collective-friendly culture of the Department of Canadian Heritage. This may partially explain the Board’s new and less transparent website and absence from Canlii. Lawyers tend to believe – or should believe –  in access and transparency when it comes to legal decisions and case information. This is fundamental to the rule of law.

Obscurity and difficulty or impossibility in finding past decisions and other information can only confer an advantage on large collectives, large institutional users, and their large law firms, who may be able to work around these problems. This new website is very unhelpful – and potentially a real setback – to the many smaller users, user associations and individuals who find participations in Copyright Board proceedings so discouraging, difficult and increasingly even impossible. Whatever may have been the intention, this new website will help to shield the Board from greater scrutiny.

Another serious but fixable problem with the new website is that virtually all previous links on my blog and anywhere else to Board decisions and other materials have now rendered useless. The links could have easily been kept active at no cost with a URL redirect – and this could presumably even now be easily restored – at virtually no cost – if the Board kept an archive of its old website, which it most assuredly should have done.

Rearranging or repainting the deck chairs isn’t going to repair the unique and dilatory dysfunction at Canada’s Copyright Board.

The Canadian Senate Committee studying the Board described it as “ dated, dysfunctional and in dire need of reform”. That reform simply hasn’t happened. Indeed, things have gotten worse.

The saving grace is that the Supreme Court of Canada and the Federal Court of Appeal have both said that the Board’s tariffs are optional and not mandatory. One would have thought that this would have provided a strong impetus for reform within the Board and its government overseers. It’s obvious that a reasonably priced, timely tariff that would provide convenient access to a satisfactory repertoire with reasonable terms and conditions would be readily adopted without any compulsion, much less the “oppression and extortion” that the Courts have warned about since 1894.

The Supreme Court is about to look at this again and will likely affirm that it said what it meant and meant what it said in 2015 when Prof. Ariel Katz, Prof. David Lametti (as he then was) and I as their counsel won the mandatory tariff victory in that Court in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <>.  The Supreme Court will likely hear this case in the late spring or the fall of 2021 – with a decision to follow in about six months and maybe even less  – unlike the many years that the Board typically takes to decide much less complex and important matters.

There can be no doubt that the major Canadian copyright collectives and content owners will now try to bypass these compelling judgements from the Supreme Court and the Federal Court of Appeal and short circuit the forthcoming Supreme Court hearing with expensive lobbying campaigns for a legislative fix that will be paid for by their membership, as usual. If Parliament decides to weigh in on this issue, it clearly should do so in a manner than confirms the existing state of the law that is in turn based on nearly eight decades of Supreme Court of Canada jurisprudence.


Saturday, October 24, 2020

Leave to Appeal Granted in Access Copyright v. York U

Both sides have been granted Leave to Appeal.

Here were my observations about the decision from the Federal Court of Appeal decision from April 22, 2020.

Interveners, start your engines.


Thursday, September 24, 2020

The Outpost - Mass Copyright Litigation



Another instalment in the mass litigation litany from the Aird and Berlis firm has now been released involving The Outpost - a 2020 picture.

There are 841 "Doe" defendants. See attached Statement of Claim.