Thursday, May 25, 2006

Knopf v. Speaker of the House of Commons - the Hearing

My case against the Speaker of the House of Commons was heard yesterday in the Federal Court. Madam Justice Layden-Stevenson had clearly reviewed all of the important material and cases ahead of time. She patiently heard all arguments and had many good questions. We await her ruling.

There’s a good article about the case by Jack Aubry in today’s Ottawa Citizen and National Post.

Meanwhile, an interesting irony was unfolding. At the conclusion of my argument at about 12:20 I made the point that I wasn’t tilting at windmills, or “ tyring to knock over the Peace Tower or even to put a crack in the mortar, or heaven forbid the foundation.” For non-Canadians, the Peace Tower is the centre-piece of Parliament and perhaps the most important visual symbol of Canada.

Unbeknownst to me at the time of my submissions, it happened that at 7:28 AM earlier in the morning yesterday the modern clock mechanism on the Peace Tower stopped working for the first time since it was installed in 1980.

There are a some ironies and coincidences here.

The first is that the installation of this clock took place at about the same time (1980) as the establishment of Canada’s modern Constitution Act and the Charter of Rights in 1982 - which are the foundation of my case.

The second is that the clock can only be fixed by an American company. The thrust of my testimony and the documents I had tried to submit to the Heritage Committee concerned the 1996 WIPO treaties, the potential Canadian ratification of which is the subject of intense pressure from the American government and the American recording industry.

The third is that the American company in question happens to have its Canadian branch in Woodstock, Ontario, my lovely home town.

My case was about opening the doors on Parliament Hill below the Peace Tower a bit wider to the concept of dialogue between concerned citizens and informed Members of Parliament in a modern democracy.

What a strange coincidence that the clock on the Peace Tower would stop the same day as my hearing. Could it be fate?


Thursday, May 18, 2006

Copyright, Competition, Free Trade & Chocolate Bars

The Supreme Court of Canada today granted leave to appeal in the very important case of Kraft v. Euro Excellence - in which Kraft had succeeded below in using s. 27(2)(e) of the Canadian Copyright Act to block the parallel importation of legitimate Toblerone chocolate bars contained in packaging for which Kraft was the exclusive Canadian licensee of certain copyrighted elements - unless the defendant covered up the offending elements with a sticker, which was done in this case. The defendant also had to pay substantial damages. One can easily imagine the ruling below being used in future cases to effectively stop parallel importation altogether of an enormous variety of consumer goods - on the basis of copyright in some artwork on a package. If this were to happen, it would be very bad news for competition and free trade.

Today, the Supreme Court of Canada granted leave to appeal to the defendant, Euro Excellence. As usual, no reasons were given.

Here is the order from the Court and the Court’s summary of the case:

Euro-Excellence Inc. c. Kraft Canada Inc., Kraft Foods Schweiz AG et Kraft Foods Belgium SA (C.F.) (31327)

The application for leave to appeal is granted with costs to the applicant in any event of the cause.)
Coram: Bastarache / LeBel / Fish

SCC Summary:

Property law – Copyright – Parallel importation of consumer products – Whether courts below erred in interpreting s. 27(2)(e) of Copyright Act, R.S.C. 1985, c. C-42.

Kraft Foods Belgium S.A. ("KFB") and Kraft Foods Schweiz AG ("KFS") manufactured Côte d'Or and Toblerone confectionery products in Belgium and Switzerland, respectively. Euro Excellence imported those products into Canada and distributed them here. KFB authorized Euro Excellence to distribute its Côte d'Or confectionery products in the Canadian market in 1993, but the contract was not renewed when it expired three years later. Kraft Canada Inc. ("Kraft") has been distributing Toblerone chocolates in Canada since 1990. It began distributing Côte d'Or products pursuant to contract in 2001. In October 2002, KFB and KFS registered copyrights on the product wrappers in Canada in the artistic category. They also entered into and registered a licence agreement with Kraft that, among other things, gave Kraft the right to use and publicly present the works in association with the distribution or sale in Canada of confectionery products.

After Euro Excellence refused to stop distributing the products, the Respondents brought an action in the Federal Court seeking an injunction and damages. Kraft alleged that the distribution of Côte d'Or and Toblerone chocolates by Euro Excellence in Canada violated copyright in the artwork on the product wrappers. Under s. 27(2)(e) of the Copyright Act, it is an infringement of copyright for any person to import into Canada, for the purpose of sale, a copy of a copyrighted work that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it. The Federal Court issued the injunction and ordered Euro Excellence to pay damages. The Federal Court of Appeal allowed the appeal, but only on the issue of damages.

I should disclose that I act for the Retail Council of Canada - who sought leave to intervene in the leave application.


Language Issues in Parliamentary Committees

Students of the ancient and arcane law and custom of parliament (lex et consuetudo parliamenti) and potential witnesses in the next round of committee hearings on copyright revision may be interested in the case of Knopf v. Speaker of the House of Commons (T-770-05 in the Federal Court). The application will be heard on May 24, 2006 here in Ottawa at 90 Sparks Street at 9:30 AM in Court Room 1104.

Back in April of 2004, I appeared before the Canadian Heritage Committee, which was chaired at the time by the Honourable Sarmite Bulte, P.C., M.P. I asked to have certain documents relevant to the issue of private copying and WIPO ratification distributed to the Committee members to assist them in their deliberations. These four documents included an excerpt from Mihály Ficsor’s authoritative book, published by Oxford University Press and available only in English. The subject of WIPO ratification was one of the issues - in fact the main issue - before the committee. The Chair refused to distribute my documents to the members because the material was in English only.

I felt that an important principle was at stake, namely whether a witness before a Parliamentary Committee can submit supporting relevant documents in either official language of Canada, or whether the documents must be in both official languages. Clearly, there are often insurmountable logistic problems with the latter practice - and I frankly don’t know how one can be assured of adequate translation of material such as Ficsor’s even if unlimited budget and time were available - which will rarely if ever be the case. For these and many other reasons, I looked into the law and decided to do try to do something about it. In my view, when the Official Languages Act (“OLA”) speaks of the right of Canadians to use “either” official language when communicating with Parliament, “either” means “either”. It does not mean “both”. This is backed up by the Charter.

I felt that the Committee needed to have essential relevant information, even if available only in one official language. The Committee clearly disagreed.

I filed a complaint with the Commissioner of Official Languages, who concluded that the Committee’s practice was OK according to the OLA. So I followed the procedure in the OLA and launched an application in the Federal Court.

The hearing, as noted, will be next week. Anyone attending will get a crash course in the truly fascinating law of parliamentary privilege - which is the main basis upon which the Speaker of House of Commons is defending the actions of Heritage Committee.


Friday, May 12, 2006

Dogged Attempts to Combat Piracy

I'm not making this up. It's too bizarre to be made up. This motion picture industry initiative involves using specially trained black Labrador canines to sniff out potentially infringing DVDs:

United Kingdom, Los Angeles - - The Federation Against Copyright Theft (FACT), express delivery company FedEx and HM Revenue & Customs, has joined forces to launch an exciting new initiative to help combat DVD piracy.

As part of a project promoted by the Motion Picture Association of America, Inc. (MPAA), FACT instigated the training of two black Labradors named Lucky and Flo (pictures attached) by one of the world’s leading experts in the field whose other clients include police, fire and rescue service. The dogs were trained over an eight month period to identify DVDs that may be located in boxes, envelopes or other packaging, as well as discs concealed amongst other goods which could be sold illegally in the UK. These DVDs are often smuggled by criminal networks involved in large scale piracy operations from around the world..
Here's whole press release on the MPAA website.

Jack Valenti must be proud. When he ran the MPAA, he was certainly known for being dogmatic.