CMEC is on the defensive re "Implied Licence"

CMEC is once again on the defensive, now about the doctrine of “implied licence” or “implied license.” Note the two different spellings for research purposes.

CMEC says in its Copyright Bulletin #5 that:

It comes down to the fact that the implied licence is a theoretical concept whose scope
has never been explained by Canadian courts.
(emphasis added)


Well, the fact is that the doctrine has been mentioned and discussed in too many Canadian and UK cases to count. Just about everyone except CMEC seems to understand what it means. Most concepts in law have a “theoretical” basis, but this one has also had a very practical existence in IP law for 137 years, as I outlined recently.

Most notably in the current context, the Supreme Court of Canada has explicitly recognized it in at least two copyright cases:

Netupsky et al. v. Dominion Bridge Co. Ltd. (1971) 3 C.P.R. (2d) 1 (SCC)

and

Robertson v. Thomson Corp., [2006] 2 S.C.R. 363

It is dealt with repeatedly in the lower court decisions in CCH v. LSUC. The Supremes didn’t need to deal with it as such when that case arrived upstairs.

Plus many, many more cases in all areas of IP law.

Not to mention last week’s decision in the UK Court of Appeal in Brooker v. Fisher (the Procol Harum/Whiter Shade of Pale decision). In that decision, the UK Court of Appeal held, inter alia, that the plaintiff organist had given an implied license to the defendants and sat on it for far too long to be able to revoke it.

Those responsible for policy and taxpayers’ expenditures at CMEC may wish to actually read these cases, not to mention the landmark decision in CCH v. LSUC that CMEC still fails to appreciate.

CMEC wants legal certainty. However, the educational establishment has very little risk of being sued for normal use of the internet. If a school were to be sued for doing what everyone has been doing for a decade or more and is still doing and if CMEC were to retain vigorous and expert litigation counsel, it would have a very good chance of winning such litigation. In the unlikely event it were lose, then Parliament would surely step into the breach.

The Law Society did not seek a special amendment when confronted by CanCopy (i.e. Excess - oops - I mean Access Copyright before it changed its name) over the issues in the CCH v. LSUC case, which were far more pressing and far less certain in terms of outcome. It fought. And it won. And, frankly, its case was not nearly as strong as CMEC’s case would be in this instance. Now that it is long since over, it can be said that some of us were rather worried that the Law Society might actually lose the case on one or more key grounds. But it fought and prevailed. CMEC has vastly more resources even than the Law Society of Upper Canada to stand up to Access Copyright, if necessary. And a far stronger case, based upon what is now apparent. And no actual threat in sight.

I say all of this because not only am I a copyright lawyer but because I am a taxpayer - and every penny that CMEC spends for better or worse comes from me and other taxpayers. And I don’t want my internet bill to go up because of the inevitable tariff that Access Copyright will file due to the a contrario implications of this proposal, if enacted.

I'm quite confident that Canada's professional teachers in the classroom would really like to teach creatively and to use the internet in innovative and responsible ways. Their management and CMEC should be fighting for their right to do so and to defend them if necessary. In this light, CMEC's apparent obsession with avoidance of any risk of any kind is difficult to understand. However, it is nothing if not consistent with the extraordinarily and unnecessarily cautious approach advocated by Wanda Noel and Gerald Breau in Copyright Matters!, which is published by CMEC.

CMEC's position on the educational internet exception will play into the hands of Access Copyright by implying that everyone outside the educational tent is liable to pay for these same or similar practices and will weaken rights already in place for teachers and students, as I pointed out before.

In any case, I’m confident there is probably a greater risk of being fatally struck by lightning or otherwise killed on the way to work than a school board being successfully sued by Access Copyright for reasonable educational use of publicly available material on the internet. About one in every 6 million Canadians will be struck by lightning each year, if American statistics are any basis. So far, Access Copyright - litigious as it is and reckless as it has been in its litigation - has never actually sued an educational institution in Canada as far as I know - despite threats.

Instead of seeking broad and useful "such as" or "including" wording as exists in the §107 of the US legislation, CMEC has embarked on what is clearly an expensive and divisive preemptive campaign now several years old that - if successful - would likely give its members at the end of the day even less rights than they already have, likely ruin the law of fair dealing for everyone else, and likely ultimately benefit Access Copyright.

Maybe their next bulletin will explain why. Their last five bulletins have certainly not done so.

HK