Monday, July 26, 2021

Default Judgment Dire Doomsday for Downloaders?

 


I am becoming increasingly concerned about how default judgments potentially may be viewed as precedents to establish sometimes sweeping and even sometimes wrong principles in IP cases. Sometimes, default judgments arise because the defendant(s) never participate, which can be for any number of reasons. Sometimes, the default can come towards the end of a case, again for various reasons. The common thread is that the presiding judge does not get to see and hear all of the evidence and all of the law in the ideal forum of the fully contested adversarial process – which is the cornerstone of our common law and the rule of law. I am working on a blog about some of the more high profile and sometimes problematic recent examples of the trend toward default judgments that can potentially take on precedential weight in IP cases, perhaps the most noteworthy of which is that of the Nintendo decision, about which I’ve written before.

There is a new default proceeding urgently looming in the Federal Court that could have profound  and dire effects on the mass litigation trend in Canada whereby hundreds of BitTorrent users are sued at once amounting to thousands overall in the approximately two dozen cases to date from the Aird & Berlis LLP firm, many of whom have been eventually persuaded to settle at relatively low amounts but may have felt the need to retain counsel in the face of an apparent potential threat of $5,000. Aird & Berlis LLP is a big, old and reputable Bay Street firm. Mr. Ken Clark handles these cases and he does so courteously and efficiently and is open to hearing any relevant mitigating factors and to dealing directly with Counsel for individual defendants caught up these mass lawsuits.

In recent years, these enforcement activities arising from alleged BitTorrent activity have been conducted on a very civilized plain, with full credit to Mr. Clark. We have not seen the nauseating trolling antics that have too often happened in the USA that have resulted, for example, in at least two American copyright lawyers sentenced to jail for long periods of time.

However, things are now taking a troubling turn in the mass BitTorrent litigation arena in Canada. Mr. Clark is bringing a motion for default judgment against more than two dozen “Doe” defendants in Federal Court case #T-513-18. These Defendants are not yet publicly named – but they will be if the motion succeeds as framed. An affidavit has been filed that suggests that some of these defendants may have downloaded some pornography based upon some of the colourful film titles. This is extremely problematic from a relevance and privacy standpoint – and I won’t post the affidavit because it may be possible, if the “Does” are eventually named, to connect the porno dots with real names. Mr. Clark is seeking statutory minimum damages of $2,250 to $5,000 plus costs in each case. If he succeeds, enforcement is bound to follow.

Here's the recent letter to Court from Mr. Clark dated July 20, 2021 seeking to “set a hearing date for the special sitting before the Case Management Judge so that we can put that information in the motion record.” He says that “The Plaintiff shall file its written representations and confidential affidavits by no later than July 26, 2021”.

 For any number of reasons, this motion could and arguably should be opposed and may be very vulnerable. However, it is not worth any one individual’s expense to do so and this is much too complicated for self-representation. The issues are potentially very complicated and Mr. Clark is a worthy and formidable adversary – so a lot of time would be required even for any very experienced counsel. There is always the risk of an adverse costs order. Last but not least, the listed “Does” may be out of time to even be allowed back, without a procedural fight, into the ring to defend.

Mr. Clark will no doubt be very thorough, forthright, and professional in his presentation to the Court. However, there are arguably a lot of issues and arguments in this proceeding that potentially could and should be considered and heard. Accordingly, this case calls out for a Court appointed “Assessor” under Rule 52 or an “Amicus Curiae”, or the intervention or the pro bono representation of one or more “Does” by a public interest clinic, e.g. CIPPIC, whose mandate and resources are ideal for this case. Otherwise, a very dangerous precedent could be set by default for masses of default judgments against potentially thousands of  Canadians for several thousand dollars each and the disgorgement of irrelevant personal private information.

HPK

Wednesday, June 09, 2021

The Copyright Board 2021 Second Town Hall – From Dysfunctional to Dormant After Nearly Four Years of No Hearings


 On May 31, 2021 the Canadian Bar Association hosted a second Copyright Board Town Hall. The first was in 2019. I’ve written about it here. As I said at that time:

Spoiler alert: Although Mme Théberge did at least acknowledge the delay issue at the outset, neither she nor Maître Audet indicated any direct and specific steps that the Board is going to take to deal with the issue of lengthy delays.  The Q & A aspect of the session was also disappointing.

Frankly, this year’s Town Hall was even more unsatisfactory and troubling.

 This time, the Board’s new Chair, Justice Luc Martineau, at least did appear, unlike his predecessor Justice Robert Blair who was apparently unable to get to Ottawa in time for the 2019 event. There was no Town Hall last year for COVID reasons and this year’s session was, of course, virtual. Justice Martineau promised more transparency, new regulations to be published in the coming months,  and a “new tone”, or a “slightly different tone”.  I do not recall anything much more specific than that, although he spoke at some length and may have mentioned “innovation”. I will look forward to seeing his remarks published on the Board’s website.

 Mme Théberge – the Vice Chair & CEO spoke of the “holistic and polycentric” nature of the Board’s work. She acknowledged that the Board was “losing credibility” in the past, seeming to  blame her predecessors for issues and problems that have not improved in any measurable manner since she took office in 2018.

 Maître Audet, the Board’s General Counsel, noted some possible questions arising from the pending SCC York University v. Access Copyright case and the forthcoming case on  the “making available” right. This was rather unusual, given that the Board, although once very vociferous in judicial review proceedings and even intervening whenever its former General Counsel Mario Bouchard could,  has more recently and more appropriately kept its counsel and let the Courts do their job without comment from the Board itself – as is fitting. On the issue of post-retirement deliberations, he made what appeared to be an inapposite or inaccurate reference to the concept of “functus officio”.

 There was a Q&A and the moderator, John Cotter, put forward the gist of my questions, which were as follows:

  1. Why are no Copyright Board decisions before 2020 available on CANLII?
  2. Why do links to Board decisions prior to recent website remake no longer work?
  3. Why do retired Board members sometimes deliberate for up to three years or even more post-retirement on cases they have heard and how do they get paid for this and at what rate? Are there any other comparable Boards of Tribunals anywhere that permit this post retirement deliberation beyond six months?
  4. Why has the Board not even held virtual hearings since the pandemic, when so many Courts, Tribunals and the Supreme Court of Canada have managed to do so? 

 The responses from Mme Théberge and Mme Taylor (the Board’s Secretary General) were at best inadequate and unconvincing. I submitted several follow up questions but these did not go forward.

 For example, re the first two questions, we were told that the website was redone to make if more accessible to the “general user”. Mme Théberge suggested that the former website was only aimed at “experts”. This, of course, is a red herring. I doubt if there is or should be any measurable interest amongst the general public in the innards of the Board’s activities. It has always been an “inside baseball” milieu – and the new website will likely ensure that this will continue a fortiori. The handful or less of individuals who have actually participated in Board hearings have varied in sophistication – but their low numbers and impact had nothing to do with the appearance of the Board’s website.

BTW, the Board’s Twitter account @COP_eng, which was highly trumpeted at great length and with much fanfare by Mme Théberge at the 2019 Town Hall, now has a grand total of 72 followers of the English version and 33 of the French. Most of the followers appear to be “insiders” or copyright professionals of some sort who do not need a twitter account to keep track of the very few new noteworthy happenings at the Board. In comparison, the Supreme Court of Canada @SCC_eng Twitter account has nearly 37K followers and the Federal Court and Federal Court of Appeal which have over 2,000 and nearly 3,000 followers respectively. They have lots to tweet about, in contrast to the Board which rarely has any noteworthy announcements.

The recent 2020 remake of the Board’s website at huge cost can only be charitably described as a “degraded” version Board’s previous website, which was at least fairly useful to copyright practitioners. As I have documented, the website was remade at a cost of at least $757, 548.50.

The only thing wrong with the previous website was that the search function was non-functional. This remained inexplicably and inexcusably unfixed for more than two decades.  That problem could and should have been fixed long ago at zero cost – but wasn’t, notwithstanding ongoing huge third part website related costs. It did not require the involvement of Decisia to make the site searchable. My freeware bargain basement blog has been searchable from day 1 – about 15 years ago. Basic searchability of a website is as routine as running water. Apparently, the Board just did not want its site to be searchable. It is searchable now – but at immense and unnecessary expense and delay and it sure helps if you know what to search for. The old website had tariffs and decisions grouped in nicely recognizable categories. That’s no longer the case. So much for the general public. More of what I’ve already written about this is here. BTW, despite the huge expenditure on its degraded website, the Board still does not have an email alert subscription facility – which is a basic feature of the Federal Courts and the SCC. Even my bargain basement freeware blog has had this feature. The Board seems to have dropped its chronological list of “rulings”, which was occasionally interesting and useful to practitioners – even if not searchable.

The Board indicated more than 20 years ago that “A compilation of the Copyright Appeal Board's decisions (1935-1989) is being prepared for publication.” That was vapour ware then, and millions of dollars of budget and 21 years later, we are still waiting. One cannot imagine what possible excuse there could be for not providing these decisions. It does not matter if they were not originally bilingual. The only comfort is that these pre-1989 decisions are really not very relevant or important anymore, and the important ones have been assimilated into many judicial decisions over the years. Still, the taxpayers have paid for these decisions over the decades and deserve to have them readily available and accessible. Researchers may wish to study them. “Official languages” policy is not an excuse. There are countless old court decisions from the Supreme Court of Canada available on its marvellous website in English only, if that is how they were originally released. Same with lots of not so old federal tribunal decisions on CANLII. While modern federal courts and tribunals strive to issue all decisions in both official languages, this was not always the case and doesn’t limit CANLII’s ability to post in one language only, if that’s what’s available. Even today, it can take some time for a Federal Court decision to get officially translated.

As for helping the “general user” learn about copyright, that is clearly NOT the Board’s responsibility. It should not be wasting its time and taxpayer dollars on this – and it’s doing a very poor job of it in in any event. Its mostly useless and sometimes even dangerous for users FAQ section  could use a basic spell check  - e.g. for “Copyright Registration and Infrigement [sic]”. Or “Fore [sic] more information on the tariffs that apply to your situation…” (highlight added). Maybe spell checking wasn’t included in the $757,548.50 remake cost?

Informing the “general user” about copyright is the responsibility of the Departments, especially CIPO, which has some information and could and should do better on copyright in general – if only it’s Minister had the slightest interest in copyright law or policy for which he is primarily responsible. However, he has been MIA and appears to have effectively handed copyright matters over the Canadian Heritage department, from which, BTW, both Mme Théberge and Mme Taylor hail. This is the first time that both the Vice-Chair and Secretary have been non-lawyers.

Above all, there is absolutely no valid reason not to put all old Board decisions – at least since 1990 – on CANLII. They were all available on the Board’s website until the degradation, categorized by issue, and in both official languages – contrary to Mme Théberge’s very questionable assertion and reference to Treasury Board and Official Languages policy. For example, the Competition Tribunal’s decisions are available on CANLII going back to 1990. The Canadian International Trade Tribunal’s decisions are available on CANLII from 1989. The Trademarks Opposition Board has more than 5,000 decisions on CANLII going back to 1990 and even earlier. These tribunals are comparable in some ways to the Copyright Board, but are far more productive. It is certainly not the case that all these decisions on CANLII are bilingual.

Contrary to Mme Théberge’s assertion, I am reliably informed that, there should be no cost incurred in getting all of its old decisions and approved tariffs at least since 1990 on CANLII – since they are all already bilingual and nicely formatted and 100% searchable. Moreover, they have all been published in the Canada Gazette in both official languages. She is apparently simply wrong about this – both regarding costs and the bilingual aspect. All that should be required is for one of her 21 employees to put the decisions and tariffs on a USB key or use cloud transfer to deliver them to CANLII. Only a minimum of direction re ordering and citation protocol would be required. It’s apparently that simple. However, it’s clear that – for whatever reason – she simply doesn’t want this to happen. So much for access to justice and transparency. Maybe that is precisely what the Board actually wants to avoid? Maybe the Board does not wish for the public – or those in government – to transparently see how very few hearings and decisions of any significant importance that the Board has dealt with in the last three decades? The many rubber stamped, uncontested and repetitive tariffs dealing with marching bands, etc. that have very questionably  been parlayed into very exaggerated numbers do not justify even a fraction of the Board’s budget or its endless delays.

And, BTW,  is there any plausible reason not to restore the viability of old and now dead links, which should not have been allowed to go dead in the first place? It’s apparently a simple exercise in providing a URL redirect with minimal effort at no cost using existing resources. I’ve pointed this out before, to no avail.

Speaking of transparency, the Board has recently invited selected persons to participate in a secretive consultation about proposed Rules of Practice and Procedure according to restrictive Chatham House Rules  in a super-confidential consultation requiring participants to sign an absurd Non-Disclosure Agreement (“NDA”). The NDA would require, inter alia, that the participant “(a) not disclose, discuss or communicate, or cause or allow to be disclosed, discussed or communicated, that it is a participant in the technical discussion on the Proposed Rules except on a strict need-to-know basis”. This is an exercise in public policy development.  This is not high-powered commercial litigation where confidentiality and protective orders are sometimes required but avoided where possible. So much for “Transparency” and “Open Government”. The Board should not insult its stakeholders and waste their time in this way.

 As for speeding things up at the Board, forget it. As I’ve pointed out before, the Governments’ recent time limits regulations solve nothing. Indeed, the Regulations do not appear to solve and do 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. These regulations explicitly permit this to be done in the future. Normal courts and tribunals just don’t do that. In the normal world of litigation and administrative law in the normal universe, by the time a hearing takes place, the tribunal or court is fully prepared, the parties have put their best foot forward and have presented their whole case and a decision is rendered after the hearing has concluded – usually within six months max.  Once the hearing is over, there are *never* any further submissions except in very rare circumstances, e.g. a new and potentially relevant and binding case from the courts. At the Copyright Board, the hearing – which may be six years or more in the making – is not the beginning of the end but is too often only the end of the beginning. There is no viable excuse for this. Copyright Board cases are not any more  complicated from a legal, evidentiary or economic aspect than many matters routinely dealt with the Competition Tribunal, the CITT, or the Federal Court – which are all dealt with in real world time frames, including he mandatory two year beginning to end requirement for PMNOC cases in the Federal Court.

As for the timely rendering decisions, the Board just recently posted its decision in the Stingray pay audio matter, which is retroactive to 2007 and goes only to 2016. The decision comes more than four years after the hearing, with two of the panelists deliberating for about three years to render this decision which few will understand and which may be of little importance in the current streaming milieu. Here’s my brief comment on the Stingray decision.

BTW, I noted on October 23, 1919 that the Board had then not held any hearings in more than two years. Ms. Théberge indicated, apparently inaccurately, in response to my Questions #4 that no hearings were scheduled during the pandemic began. That is simply not true. Three had been scheduled but since “suspended” without apparent reasons. In another manifestation of the degraded website, the listing of previous hearings and exhibits that were filed appears to have disappeared for no explicable reason. However, the Boad’s Annual Reports do confirm that the Board has held no hearings since September, 2017 – which was actually a  rehearing following the SCC’s decision in the CBC v. SODRAC case reaching back to 2008.

Ms. Théberge again affirmed Board’s great reliance on the expertise of her large legal and economic staff – seemingly oblivious to the notion that “Whoever hears must decide”. The Board’s full time staff includes six lawyers and four economists. It’s hard to imagine how they spend their time. She indicated that the Board currently has 21 employees. It must be noted that a budget approaching $5 million a year is a lot of money for a tribunal with 21 full time employees and two floors of splendid prime office space on Sparks Street, including a vey large hearing room,  that has held no hearings in almost four years and apparently with none scheduled in the future. The pay rates at the Board seem extremely high for the work required. The Board also regularly spends a small fortune on third party consultants and suppliers of often vaguely specified services, some of whom seem to be frequent flyers over the years. These reports are available – though rather well hidden under the banner of “transparency” – here. These include such oddities as court reporting services during a period when there were no hearings and frequent recourse to outside sources for “temporary help”, not to mention huge amounts on ongoing website maintenance and the new degraded site.

 Recent controversial “consultation” efforts emanating from Heritage Canada contain thinly veiled “make work” options for the Copyright Board. See here and here. However, if the pending SCC case unsurprisingly confirms that Copyright Board tariffs are not mandatory, the Board’s current modus operandi and raison d'être may be existentially challenged and non-sustainable.

Above all, it must be realized that the copyright law is not particularly complicated compared to many other areas of the law, such as competition, patent or trade law. True, it can get complicated – but that is way beyond the mandate and the expertise of the Copyright Board. That’s for the courts, including the Supreme Court of Canada, where the Copyright Board’s shortcomings are rather often dealt with – at inordinate inconvenience and expense to the parties and interveners.

If the Federal Court can resolve complex notice of compliance patent cases involving potentially hundreds of millions of dollars within two years – start to finish, including rendering of judgment – there is no excuse for the Board taking often six years just to get to hearing and another three years or more to render a grossly retroactive decision, which too often has proven to be wrong. You just can’t make this stuff up. It is was it is.

If the Board is to serve any useful purpose in the future, it must be reinvented so as to:

  •  Render timely and minimally, if at all, retroactive “tariffs” that are non-mandatory but sufficiently attractive in the market place that users will consider voluntarily signing licenses, just like making the cost of taking the train from Ottawa to Toronto more attractive than other choices, but not making taking the train mandatory – let  alone requiring an all year Canada wide pass for one trip. For most if not all of the “routine” tariffs, the Board’s involvement should not even be necessary.
  • Concentrate on determination of rates, terms and conditions, which is the reason it was formed more than 8 decades ago,  and stop pretending that it has any expertise in substantive copyright or other legal issues, much less international law
  • Drastically reduce its budget
  • Revert to the model envisaged by Justice Parker in the 1930’s that worked very well for the Copyright Appeal Board, which was well serviced part time by a retired judge and some public servants who had other responsibilities until ambitious bureaucrats got hold of the new Copyright Board in 1990 and beyond and have attempted to create a new mini-CRTC or other endlessly expanding empire.

Interestingly, the Auditor General doesn’t seem to have paid much if any attention to the Board in the past. As to ATIPs, the Board has spent a lot of money in the past on Michel Drapeau to advise on ATIP requests. One doubts that this was for the purpose of facilitating timely and transparent fulfilment. 

We have gotten nowhere close to a Copyright Board 3.0 as I called for on the 30th anniversary of the new Board in 2019.  The current Board has gotten only successively slower, more bloated and “dysfunctional” in the Senate Committee’s words since then.

That fact that it has not held a hearing in nearly four years, which may be a public policy blessing in disguise,  may be due in no small part to:

  • The ruling in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0> in which I, Prof. Ariel Katz, and Prof. David Lametti as he then was persuaded the SCC that “licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.”
  • The fact that “the Board’s power to issue retroactively binding decisions in general” is now on the SCC radar screen as stated in FN 2 of para. 111 of Justice Rothstein’s judgement in CBC v. SODRAC
  • Even major collectives may be reluctant to incur the immense costs, never ending delays, and the uncertainty of pursuing an approved tariff from the Board that has a very good chance, statistically, of being struck down in the Courts – even if it is somehow enforceable as such, which is doubtful now in all cases except the private copying levy, which is of no importance to anyone except the lawyers and collective executives who continue to feed off its decomposing and diminishing small remains with the inexplicable regular rubber stamp of continuing renewal from the Board. When is the last time that anyone you know has bought a blank CD?

I have been involved one way or another with making copyright policy, litigating copyright, writing about copyright, and the Copyright Board itself at hearings and in the Courts possibly for far too long and probably for far longer than anyone else who is still active in this milieu. Thus, I feel competent and somehow compelled to suggest that the Board’s status quo is not and should not be sustainable.

There have been some outstanding and very professional persons at the Board over the years in various capacities. Likewise, there have been some very worthy counsel who have appeared before the Board. Hence my tough love for the Board and my hope that, if it is to survive and serve a useful function, it will be reinvented and become, as it once was, at least for its first five decades or so, a modest, modern and model tribunal not only within Canada but in the eyes of the world.

However, as it now stands, it is even more “dated, dysfunctional and in dire need of reform” than as described  by the Senate BANC Committee in 2016. 

Sadly, the Minister with primary responsibility for the Copyright Board, namely François-Philippe Champagne (FPC) @FP_Champagne, is MIA with no apparent interest in copyright law, policy or related matters. He has abdicated all of this to Steven Guilbeault @s_guilbeault, the Heritage Minister, who has shown nothing but chaotic incompetence on copyright and related “cultural” fronts such as #BillC10. This is all very regrettable because there are undoubtedly some capable officials in both Departments. However, their voices are apparently not being heard, or are being drowned out by lobbyists and Quebec politics.

 HPK

 

Tuesday, June 08, 2021

Copyright Board Stingray Pay Audio Decision Following a Hearing More than Four Years Ago is Retroactive to 2007


Here is the latest decision and tariff from the Copyright Board.

The oral hearing in this decision took place four years ago in May of 2017 and some aspects of this decision are retroactive to 2007. That is not a misprint. See paragraph 318.

Nelson Landry retired from the Board more than three years ago – and Claude Majeau almost three years ago. Former Chairman Robert Blair retired on May 27, 2020 – a year and a day before this decision was released.

I’ve written about the very unusual, if not unique, practice of the Board in allowing its retirees to deliberate – or perhaps ruminate – about pending decisions for as long as three years or more. While this is permitted by the statute according to s. 66.5(1), there would appear to be no need or reason for such lengthy deliberations. Judges of the Federal Courts have eight weeks and the Supreme Court of Canada have six months to finish off or sign off on any decisions arising from cases they heard before retiring, and they invariably have far greater caseloads. Retired Chair William Vancise took nearly four years to render his last Board decision after he retired. Whether or not Copyright Board members have been getting paid for these years long deliberations – and at whatever rate the very possibility of this endless indecision concerning their decisions has apparently been hardly conducive to efficiency. Unlike appellate court decisions where there is a panel of three or more judges, one does not even know which Board member is primarily responsible for writing these decisions.

This tariff was worth less than $3 million a year in 2016 and is declining in value (para. 14). One wonders whether it is still of any importance in light of the avalanche of streaming services to which music fans are flocking – and paying for – and for which artists get paid, however poorly unless they are superstars. There is extremely scant reference to these competing streaming services in the decision.

Anyway, what is “Pay Audio”?

[3] Pay audio programming is a set of music channels distributed by cable or satellite broadcast distribution undertakings (BDUs), provided to them as a service by a third party.4 There is currently only one provider of a pay audio service in Canada: the Stingray Digital Group Inc. (Stingray).5

(footnotes omitted)

 There are some interesting blackouts. E.g. see paras. 114, 115, 123, 177,183, 1855, 187, 192, 193.

Here is what Stingray is apparently about.

Former Objectors

According the Board’s Appendix to its Decision:

 At earlier points in the proceeding, the following companies were also part of the Objectors:Braggs Communications Inc., the Computer & Communications Industry Association, MTS, and Yahoo! Canada Co. All of these latter companies withdrew their participation prior to the oral hearing, for various reasons.

In addition, the following companies objected to one or more of the tariffs under consideration in this proceeding, but also withdrew their participation: Apple Canada Inc., Apple Inc., Canadian Association of Broadcasters, Canadian Broadcasting Corporation, Canadian Satellite Radio, Cineplex Entertainment LP, CKUA Radio Network, EMI Music Canada, Entertainment Software Association, Entertainment Software Association of Canada, Federation of Calgary Communities, Hotel Association of Canada, Iceberg media.com, L’Alliance des radios communautaires, L’Aréna des Canadiens inc., L’Association des radiodiffuseurs communautaires du Québec, Music Canada, National Campus and Community Radio Association, Pandora Media Inc., Pelmorex Media Inc., Restaurants Canada, Saskatchewan Telecommunications Inc, Sirius XM Canada Inc., SONY BMG Music (Canada) Inc., Universal Music Canada Inc., and Warner Music Canada Co.

Conclusion

For all of this, the tariff just decided by the Board is only applicable until 2016. Whether is has any practical importance beyond that date and what will become of this tariff in the future is unknown and likely to remain so for years.

It is very likely that this decision will be incomprehensible to the countless artists affected by it, or even most of the lawyers who follow Board decisions. As for the general public, if any of them stumble over it, one can only wish them good luck in understanding it.

 HPK

Friday, June 04, 2021

Where are the Responses to the Canadian Government's Copyright Consultations?

For those looking for the promises copies of submissions in response to the Government's recent "consultation" efforts on term extension and internet intermediaries, don't hold your breath.

The first consultation effort closed on March 31, 2021. BTW, here's my first submission and here's my second.

I was assured by a senior official on April 23, 2021 that:

Now that the copyright term extension consultation period has closed, our teams are currently in the process of reviewing the submissions that we have received.  We are also working to ensure that the submissions are posted online in a manner that is consistent with the Government’s web publishing standards, including giving due consideration to accessibility needs.  Please rest assured that the submissions will be made available as soon as possible.

I can't imagine what is so complicated about getting these submissions online.

Meanwhile, we wait with baited breath for consultation paper #3 on the Internet of Things. Just what Canada needs now ;-(.

HPK 


Monday, May 31, 2021

Howard Knopf's Comments on Government's "Online Intermediaries" Consultation Paper

 Here are my comments about the Government's Online Intermediaries consultation.

May 31, 2021

 To:

Hon. F-P Champagne, P.C., M.P., Minister of Innovation, Science and Industry

Francois-Philippe.Champagne@parl.gc.ca 

Hon. S. Guilbeault, P.C., M.P., Minister of Canadian Heritage

Steven.Guilbeault@parl.gc.ca

Hon. David Lametti, Minister of Justice

David.Lametti@parl.gc.ca

 copyright-consultation-droitdauteur@canada.ca

(In PDF and Word)

 Re: Consultation on “Internet Intermediaries”

 The following comments are in my personal capacity and do not necessarily reflect the views of any clients of my firm or my firm itself.

 1.     This involves more rhetoric about “web giants”. This is related to and a further extension of the ultra-controversial Bill C-10. See page 5 and FN 3. This is all about “dirigiste” politics in the name of “culture”.

2.     There is no sufficiently precise or even useful definition of an “online intermediary”. For example, could it include universities, colleges and libraries? See Executive Summary and Section 3.1.

3.     The Equustek judgment of the Supreme Court of Canada (“SCC”). should not be relied upon any more than necessary. It was based upon very particular facts and was not grounded in copyright law. Google’s submissions were arguably problematic.  As to the GoldTV case. See page 7 and FN 13 - which wrongly states that GoldTV has been “granted leave to appeal”. The appeal was as of right. Teksavvy was the appellant and not GoldTV. These misstatements frankly raise concern about the quality of the legal analysis in this paper. While Teksavvy recently lost this appeal, it could end up in the SCC where it may indeed be reversed.

4.     The paper simply fails to mention the “making available” litigation – which will be heard by the SCC sometime next year.

5.     There is a very questionable and simplistic take on US, EU and Australian law on pp. 8-9.

6.     Sections 4.2 and 4.3.2 show yet another Government effort to make work for the Copyright Board and boost its budget even further.

7.     Option 4.2 is a directly aimed at making tariffs mandatory. See page 14-15 and FN47 – which at least acknowledges the currently pending Access Copyright v. York University SCC case – but is oblivious to the issues involved.

8.     “Extended collective licensing” should be anathema for Canada. This concept is a non-starter in the USA and makes sense only for small socialist countries such as the Nordic countries. However, it appears that lobbyists driven by vertically integrated interests are pushing it in Canada. Compulsory licensing is also anathema for Canada. See page 14.

9.     What about freedom of expression – which is looming large in the C-10 debate? This is barely mentioned and not analyzed.

10.  Criminal law has no place in this discussion. See s. 4.4.2

11.  Appendix “A” gives short shrift token recognition to “Broader Policy Issues”. See page 21.

Conclusions


1.     This is unnecessary, untimely and wasteful “consultation theatre” in the words of Michael Geist.

2.     The Government has not even published the submissions on its first term extension paper, which were provided two months ago. There is no good reason for this.

3.     The Government should concentrate on moving forward from the INDU Committee Report – and not embarking on chaotic and diversionary distractions.

4.     The Government should stop attempting to make work for the Copyright Board. If the Board is to serve any useful function, it might do so by developing tariffs in the public interest that could earn acceptance in the market place based upon reasonable terms, conditions and rates and not by threats and compulsion. Any attempt to make tariffs mandatory through legislation will be extremely controversial and legally problematic.

5.     The Government should let current court cases work their way through the judicial system – before it attempts to interfere in a heavy-handed, badly researched, unnecessary and premature manner.

Yours very truly,

 "HPK"

Howard P. Knopf



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.



HPK


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 http://collections.stanford.edu/copyrightrenewals/files/ FinalNarrative_

18Sept07.pdf.

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) https://www.copyright.gov/docs/next_great_copyright_act.pdf  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 naïve or willfully blind.

 BTW, h/t Sean Flynn and Ariel Katz.

HPK