Fair Dealing, Standard of Review and Possible Interventions at the Supreme Court of Canada

The Supreme Court of Canada’s hearing process involving the SOCAN “Previews” case is well underway. SOCAN has just filed its factum (redacted version attached). Although the fact situation arises from the fairly specific circumstance of the use of 30 second previews of songs on iTunes, the overall issues that will inevitably be argued  go straight to the heart of what is “fair dealing” and what “research” means. If the Court finds in favour of SOCAN and its reasons are framed more generally than necessary, the decision could have far reaching negative consequences for those who believe that fair dealing is important.

Unfortunately, we do no not know at this time if the Court will grant leave in CMEC’s (Province of Alberta et al)  K-12 case, which involved the apparently far more general issue of whether material prescribed by a teacher or provided in multiple copies can be fair dealing. The CMEC Leave to Appeal application is attached. This is the other side of the coin to the previews case. In the former, the Federal Court of Appeal looked at the “purpose” of the user. In the latter, the Federal Court of Appeal refused to do so. The decisions are only a few weeks apart but emanate from different panels of the Federal Court of Appeal. The results are frankly not apparently reconcilable. Normally, we would know by now if the CMEC case would be heard. It is a mystery as to why the Court has not yet ruled on this.

What we do know is that the Court has decided to hear two other cases arising from SOCAN’s never ending Tariff 22 “music on the internet” case. These cases focus on whether there was, in the circumstances involved, a “communication to the public”. They do not involve fair dealing. Apart from the fact that these cases all stem from SOCAN’s Tariff 22 tariff, all involve the internet, and all come from the Copyright Board, there is nothing else obviously in common - except perhaps for the very troublesome but important  question of “standard of review” generally and with respect to decisions from the Copyright Board in particular.

It is interesting that SOCAN’s Tariff 22, which began its life in 1995,  has already been to the Supreme Court of Canada once, and was ruled on in 2004. Although Tariff 22A for online music services is now generating over $11 million a year, the rest of the tariff is a work in progress and appears to be far more beneficial to the numerous lawyers involved than to composers and authors.

All of these three cases will be heard together - likely in one day  - with the possibility of compressed time allotments for each case. In normal circumstances, the parties would get one hour each and interveners 10 minutes each. The other two communications cases are on a different timeline than the “previews” case - but everything will converge on December 6, 2011.

I was - but no longer am - confident that the SCC will necessarily grant leave in the CMEC case. The unusual delay in rendering judgment on the leave application and the fact that two less obviously related cases that have nothing to do with fair dealing have been linked to the “previews” case gives one cause for doubt. But hope springs eternal. Ideally, CMEC will get leave for its case and there will be a standalone hearing. (I should disclose that I was involved in this case in the Federal Court of Appeal for the intervener CAUT). 

Accordingly, any party interested in either issue  of “fair dealing”/ “research” or  the common element of standard of review may wish to seek leave to intervene in the previews case and to join the fray on December 6, 2011, when these cases are scheduled to be heard.

Potential interveners may wish to combine their efforts. This may not only save costs but enhance the chances of being heard under these somewhat unusual circumstances in which time allotments will be scarce and likely very limited.

Applications for leave in intervene must be filed on or before May 16, 2011.

Potential interveners may include those interested in issues involving:

•    education
•    libraries
•    archives
•    museums
•    publishing
•    freedom of expression
•    academic freedom
•    marketing and sales
•    retailing
•    operators of websites that provide previews, thumbnails or other limited versions of protected works
•    research of any kind, commercial or otherwise
•    administrative law generally, and standard of review at the Copyright Board in particular

HK

Attacks on the iPodtax.ca website

With all the muddled and mangled commentary over the #iPodtax (Twitter hash tag) issue and the Conservative Party of Canada (“CPC”) website attacking the opposition, a recent story from Global and its related websites adds to the cacophony. The story dated Friday, April 15, 20111 oddly appears only in cached format here.

The story suggests that Liberal Party of Canada (“LPC”) sources believe that the Conservative website violates Apple’s trade-mark rights because the site is called www.ipodtax.ca  There are also some vague references to copyright infringement.

It’s no surprise that “IPOD” is a registered trade-mark in Canada, but that won’t stop the CPC website or the use of the URL www.ipodtax.ca

The LPC position, if accurately reported. is a non-starter legally. The CPC is not trading in iPods or anything remotely resembling any products or services that Apple sells. Trade-marks law does not prevent the “use” in language of the trade-mark for descriptive, critical or other legitimate purposes. If I say that I like to listen to music on my iPod, that is not a trademark “use” that requires permission. If I say that I think the sound of my iPod is great - or lousy - that is also not a trade-mark use. If I say that I am opposed to an iPod tax, that is also not trade-mark use because I am not selling iPods or any remotely similar product.

As far as the domain name goes, Apple would have no case to attack the CPC for using the domain name “www.ipodtax.ca” That is simply because nobody would believe as a matter of first impression or otherwise, that there is any connection between the domain name and the trade-mark owner, Apple.  Moreover, whatever one may think of the politics behind the website, the use of the domain name does not come close to meeting the “bad faith” requirement that must be proven to result in a domain name being taken down under  “.ca" dispute resolution policy. The CPC is simply not a “cyber squatter”.   

Besides, one would be astounded if Apple were to actually be upset about this website, since Apple has spent a lot of money, along with my client the Retail Council of Canada, in successfully fighting an iPod tax at the Copyright Board and in the Federal Court of Appeal. I know because I have been involved in those battles from the beginning.

The cached article also quotes Michael Geist as saying, among other things, that “If this were any other person or any other circumstance, one could well see Apple filing a complaint on it”. The reporter says “Geist said the use of the trademark is even more sensitive this time because it is being used for political purposes.”

With respect, I must disagree with Michael this time. Anyone has a right to set up a “.ca” website discussing the policy implications of an “iPod tax” and use the term "iPod" as part of the URL, as long as is can pass the tests in the CIRA domain name dispute registration policy - as would clearly be the case here. The fact that the registrant has a political motive is not determinative or even relevant. A site called “stopthesillyipodtax.ca” would be perfectly fine as long as it is devoted to that issue.

In any event, here are some simple facts about the “iPod tax” issue in this election context.

It is true that the LPC is no longer proposing an “iPod tax” as such on each device sold. Instead, it stated on December 16, 2010 that:

Specifically, the Liberal Party will seek to introduce a new Private Copying Compensation Payment of $35 million to be transferred to Canadian artists each year, through the Canadian Private Copying Collective (CPCC).  Liberals are proposing a new statutory program, written in law within the Copyright Act, which will increase at the rate of inflation and be reviewed every five years.

One can debate whether or not $1 per year for every living and breathing Canadian to be paid for out of a government taxpayer funded program and etched in stone in the Copyright Act is or is not good policy and is or is not preferable to an “iPod tax” collected by the CPCC under the authority of the Copyright Board. But the LPC’s proposed  fund indeed would be paid for out of Government revenues received from income taxes. Whether or not it would technically be a “tax”, it would clearly be paid for by all taxpayers and not just by consumers of iPods. I won’t even comment here on why the LPC proposal would also eventually surely result in almost all of the money leaving the country if and when Canada ratifies the 1996 WIPO treaties. More to follow on the national treatment issue later.

It is interesting to note that just today two very accomplished law professors are broadening the ambit of the word “tax” in the context of copyright law. Michael Geist speaks of a “Playbook tax” and Ariel Katz suggests that the challenge I fought in the Federal Court of Appeal a few years ago on behalf of the Retail Council of Canada about the constitutionality of a tax on blank CDs and which came very close to succeeding may still be open. He says:

In 2004 the Federal Court of Appeal considered some of these question, but found that the blank media levy is not a tax but a regulatory charge and therefore constitutionally valid.  The decision, however, is rather confused and confusing, so it is not unlikely that the constitutionality of the levy may have to be determined once again.

Also, it is a simple and indisputable fact, documented by the Copyright Board itself,  that the CPCC did actually ask for a levy of $75 for iPods over 30 GB in capacity in 2007, the last time it asked before the Federal Court of Appeal reiterated that only Parliament and not the Copyright Board can impose such a levy.


HK

How WIPO Treaty Ratification - and not Bill C-32 - would Double the blank media levies ("taxes") in Canada

Michael Geist has a blog today about the potential political debate concerning an “iPod tax” and how Bill C-32 would have supposedly doubled the "iPod tax"  due to the national treatment requirements of the 1996 WIPO WPPT treaty. I've been writing about this for years and have testified about it to a Parliamentary Committee, and its gratifying to see some of these points being repeated in the government document that Michael exposes and in his own blog.

However, it is incorrect to suggest that “... it is worth noting that Bill C-32, the Conservatives own copyright bill, would likely have doubled the fees that Canadians pay on blank CDs.”

Bill C-32 itself would not have resulted in the doubling the dwindling levy proceeds, which now effectively come only from blank CDs. The “doubling” would only result from a subsequent separate decision to actually ratify the WPPT and the then inevitable issuance of a statement by the Minister pursuant to s. 85 of the Copyright Act that would cause foreign “makers” and “performers” to be considered “eligible” for reciprocal payments. This would require recognition in turn by the Copyright Board in a new tariff, which the Board would doubtless not hesitate to provide - assuming that that blank CDs would still be considered to be an “audio recording medium” - which is probably not the case, but would need to be vigorously contested, given the Board’s past decisions.

Indeed, it is well understood that, while this and the previous Governments both wished their bills to be “WIPO Ready”, any decision to actually ratify the 1996 treaties might need to await the demise or significant reworking of the levy scheme precisely in order to avoid the “doubling” aspect and the arithmetically inevitable major royalty outflow, which could serve no useful purpose whatsoever for Canadian interests and would thus potentially be an acute embarrassment to whatever government were to be in power at the time. 

HK

A CPC Dedicated Anti "iPod Tax" Election website.

The Conservative Party of Canada has launched an election website devoted to the "iPod tax" issue.

I make no comment on the contents of the website other than to anticipate the misleading comments that will surely issue yet again from certain quarters that the amount sought would not be $75. It is a matter of record that the last - even if ill-fated - attempt by the Canadian Private Copying Collective ("CPCC")  to get the Copyright Board to impose such a "tax" indeed asked for $75 as follows:

 ...for digital audio recorders, $5 for each recorder with no
more than 1 Gigabyte (GB) of memory, $25 for each recorder
with more than 1 GB and no more than 10 GB of memory, $50
for each recorder with more than 10 GB and no more than
30 GB of memory, and $75 for each recorder with more than
30 GB of memory.

(emphasis added)

This is from the Copyright Board's website which simply republished the Canada Gazette of February 10, 2007.

An iPod "Classic" has 160 GB and many other devices well over 30 GB.The proposed tariff did not distinguish between solid state and hard drive memory - nor do the recent attempts to re-float the "iPod tax".

For those with a sense of nostalgia about past unsuccessful CPCC attempts to impose an iPod "tax", consider what I've said in the past:

Now, if you think that’s bad, go back only five years to 2002 for the proposed 2003-2004 tariff that would have imposed $21 per GB. Here’s the exact proposal from the Canada Gazette:

(g) $21 for each gigabyte of memory in each non-removable hard drive incorporated into each MP3 player or into each similar device with an internal hard drive that is intended for use primarily to record and play music.

Now, for those who can’t or won’t do simple arithmetic, I’ll do it for you.

A $21 per GB tariff (“tax”) on a 160 GB iPod “Classic” that now sells for about $270 would be - get ready for this -$3,360.00.

On a one Terabyte eternal hard drive that sells for as low as $69 in Canada, the “tax” would be $21,000.00.

On a three Terabyte terabyte eternal hard drive that now sells for about $220 in Canada, the tariff (“tax”) would now be $63,000.00. This is NOT a misprint.

So much for the forward thinking capacity of the Canadian Private Copying Collective.

This shows the fallacy of taxing technology. And why Minister Moore was right to call the proposed iPod tax "really toxic and, frankly, really dumb". 

BTW, those prices for hard drives are now much less. One can buy a 3 TB external HD for about $179 at at least one big box store in Canada.

By way of disclosure, I should point out that I have long acted for the Retail Council of Canada in successful opposition to an iPod "tax" before the Copyright Board, the Federal Court of  Appeal and the Supreme Court of Canada (where leave to appeal was denied to all parties). 

HK

Access Copyright's Election 2011 Toolkit - About Repealing Fair Dealing

Access Copyright is entering the election fray.

Unfortunately, most of what is being said is quite misleading and/or troubling. For example, here is part of what Access Copyright has to say:

By favouring exceptions without compensation over collective licensing, the Bill [C-32] foreclosed any meaningful opportunity for rightsholders to participate in shaping emerging markets for access to content with fair compensation. Its net effect would have been to undermine existing licensing infrastructures and foreclose new revenue streams, forcing rightsholders to hold on ever more tightly to what little control over their works they would have had left instead of promoting increased access
through innovative models of licensing and distribution.

Meanwhile, Canada’s creative and information sectors would have been impoverished as creators and publishers would have been forced out of business, unable to earn a living from their craft and businesses. With Canadian voices silenced, educational institutions would have been forced to rely on American and other foreign sources for teaching materials.

 

While exceptions may be warranted for certain users in certain circumstances, (when reasonable access is otherwise unavailable), there is no need for an uncompensated exception when a work is available at a reasonable price and can be obtained with reasonable effort. In other words, exceptions should be unavailable whenever a licence for the use is available from a collective society.

(emphasis added)
 

That is a very inaccurate description of what Bill C-32 would have done.

But the corollary and conclusion are really remarkable.

Access Copyright apparently believes that we as Canadians should give up on the notion of exceptions for fair dealing for research, private study,  criticism, review, news reporting etc. - never mind satire and parody - if there is a friendly collective lurking out there that is willing to provide a license. Say - for example - for $45 per university student student per year.

Some of the questions posed by certain committee members at the C-32 hearings suggest that Access Copyright is getting through to them on such points. The response from key parts of the educational community was typically tepid.

I have to say that as a member of Access Copyright and as a copyright lawyer, it is embarrassing to see such a position being asserted when it flies in the face of what goes on in other comparable countries and what is good policy for Canada, not to mention about two centuries of common law jurisprudence and common sense.

It does not seem sensible for Canada to consider repealing fair dealing.

Providing mere beer money to most writer members and millions a year to a collective's managers, consultants and lawyers by limiting and/or charging excess rates for access to teachers and students at all levels does not strike one as brilliant policy in a competitive world concerned with innovation in the digital economy. Access Copyright's expenses exceed 25% of its revenues, which is a much higher ratio than collectives such as SOCAN.

Any government that is serious about education in Canada will ensure that copyright exceptions and users' rights in Canada are at least as generous and specific as those in the USA. Since the Copyright Board and the Federal Court of Appeal (at least in the CMEC K-12 decision) are arguably not following either the letter or the spirit the Supreme Court of Canada's landmark CCH v. LSUC decision, we do need Parliament to act - but in the very opposite way to what Access Copyright is suggesting.

So - here is Access Copyright's Election 2011 Toolkit. 

In the great democratic tradition, use it early, wisely and often.  

And as you wish.

HK

Imagine All the Freedom - From Excessive Copyright Claims - PM Harper's Performance Pulled from YouTube

Prime Miniister Harper's video with the wonderful young lady Ms. Maria Aragon has been mostly taken down from YouTube.

Imagine - it included a few bars from "Imagine" by John Lennon.

The copyright lawyers are not amused.

Above  is was a quite delightful duet with the PM and the young lady.. Watch it while you can You can't watch it anymore because the music industry lawyers are doing what they do best - which is to take good things down and/or kill them off.

Whatever one's political stripe - this is really touching and delightful. It won't hurt anyone or any corporation in the music industry. If this can't be on YouTube or similar sites, then copyright law is seriously sick.

"You may say that I'm a dreamer - but I'm not the only one" who thinks it would be a real shame if people can't see and hear things like this in the future.

Imagine -  a world without excessively greedy corporate copyright owners, collectives, and their excessively zealous  copyright lawyers. 

Imagine that  - whoever is the next Prime Minster - will lead a government that will amend Canada's copyright laws to "let it be" for things like this.  

Imagine all the people - who would be happy about this - and maybe even vote for it.

This could yet be the copyright election...

HK

PS - as of Friday, April 8, 2011, the above video is no longer available "due to a copyright claim by Lenono Music." Although the DMCA doesn't apply in Canada, it has effectively reached out to Canada in this and countless other instances. 

Wall Busting Canadian Gets C&D Letter from "NYT"

(Nieman Journalism Lab)

A clever Canadian named “Dave” Hayes, with a previously obscure blog, has written a four line Java script over his lunch hour that, apparently, can crack the controversial New York Times $40 million paywall. You simply drag and drop it into your bookmarks toolbar, and then click on it when necessary. It apparently works. Since it needs a file name to be a part of your bookmarks, he called it “NYTClean”. The New York Times is not amused and does not think that this filename is fit to print - even on your computer screen.

One might have thought that the NY Times might have had some thoughts about inducing or authorizing copyright infringement, or maybe even the dreaded DMCA . However, as Americans are constantly astonished to learn and Canadians constantly need to be reminded, the DMCA does not apply (yet) in Canada, which is still a sovereign country despite the tireless efforts of many copyright reform lobbyists.  I’m not commenting here on how such copyright theories would play out either in Canada or the USA.

However, the NYT (if I may refer to it that way) is apparently less upset about the efficacy of Dave’s four lines of code that can apparently blow away the NYT’s $40 million game changing “investment in our future” paywall with one click than Dave’s alleged “trademark dilution and trademark infringement under U.S. and Canadian trademark law”. NYT’s counsel has sent Dave a C&D letter - see below. 

This is rather odd, for lots of reasons. For example:

• According to the Supreme Court of Canada no less,there is no such thing as the American “trademark dilution” doctrine as such under Canadian law;

• Moreover, Dave isn’t even “using” the letters NYT as a trademark, because Dave isn’t selling newspapers or online news reports; and, 

• “NYT” isn’t even registered as a trade-mark in either the USA or Canada, which, though not conclusive, is very telling indeed.

Anyway, I seriously respect and even love the New York Times. It's hard to see how the world could do without it. I actually understand that some newspapers are having a hard time adapting to the internet. But, at last report, the internet is here to stay, which may not be the case with all newspapers, or record companies for that matter, that do not adapt to it. 

Moreover, I am personally rather conflicted about the NY Times paywall, since I sincerely hope that the NY Times survives and indeed proposers. However, I (and many others - see Arianna Huffington here and here ) believe that its  paywall is an awkward and ineffective attempt in the wrong direction. I am certainly not flattered or thankful that this paywall was beta tested on Canadians. Could this have been because Canadians are too polite to protest, eh?

Well, Dave is apparently one uppity wall busting Canadian. If a clever Canadian can write four lines of pay wall busting code over lunch hour, and get attention around the world, and the best that the NYT can come up with is a "trademark dilution and trademark infringement" C&D email, then we should pay attention to “Dave.”

And, of course, the NYT has apparently forgotten about the Streisand effect of problematic C&D letters. They have a way bringing unwanted attention to the very activity that the author wants to C&D. Dave is getting lots of attention, including in Time and at the Nieman Journalism Lab.

And, in this case, this is nothing if not ironic. Remember the first law of email - “Never hit the send key on anything you couldn't live with on page one of the New York Times” (aka NYT).

Anyway, here’s the NYT's letter:

I am writing concerning your “NYTClean” bookmarklet, posted at http://euri.ca/2011/03/21/get-around-new-york-times-20-article-limit/.

As you obviously know, The New York Times Company has used its ‘The New York Times’ trademark since at least as early as 1851 and today offers numerous products and services under its famous ‘The New York Times’ trademark, including its online version of The New York Times at the URL NYTimes.com, and various blogs and electronic media products. NYTCo’s NYTimes.com website receives over 15,000,000 unique visitors each month. NYTCo owns numerous registrations for its ‘The New York Times’ trademark in the U.S. Patent and Trademark Office and Canadian Trade-Marks Office and these trademarks are among the company’s most valuable assets.

We object to your use of our famous “NYT” trademark in connection with your application and your promotion thereof, which constitutes trademark dilution and trademark infringement under U.S. and Canadian trademark law.

Accordingly, we ask that you immediately cease use of the “NYT” trademark in connection with this application. This email is without prejudice to any action that may be necessary to protect the valuable rights of NYTCo in its intellectual property.

Very truly yours,

Rxxxxxx Sxxxxx

Senior Counsel

The New York Times Company

HK

Breaking Blogging Deployments in London and Geneva

The ever reliable, recondite, and renowned IPKat blog has important and timely news on two fronts that will affect not only IP bloggers but practitioners, jurists, academics, government officials, international agency officials and diplomats dealing with IP throughout the world.

The first announcement is nothing but good news. The IPKat has honoured Dr. Francis Gurry, the distinguished Director General of WIPO, with an appointment as the seventh IPKat, to be known as the Gurrykat. The requirements for appointment as an IPKat blogger are highly confidential. However, it is clearly the case that only seven persons have ever met these stringent qualifications. Dr. Gurry’s record, however, is clearly unique and beyond question. Although the IPKat has circumscribed his mandate rather precisely, presumably for at least as long as he will be on probation, we can only hope to eventually look forward to frequent tweets and detailed blogs, especially during and immediately following annual General Assembly Meetings and doubtlessly increasingly frequent Diplomatic Conferences.

Indeed, optimism about Dr. Gurry’s blogging and tweeting abilities is very high. As a relatively young man born in 1951, it is expected that he will quickly master the technology required for successful blogging and tweeting. According to several reliable sources, there is absolutely no truth to the rumours that he may have been born in 1915 rather than 1951. The source of any confusion on this point may be tracable to a typo arising from the clumsy use of an early version of a Blackberry by a former WIPO official.

All pundits are agreed that Dr. Gurry’s contribution as an IPKat blogger will be fully synergistic and complementary to the vision statement as described by the senior IPKat himself, Prof. Jeremy Phillips:

    Prima facie it seems surprising that the Director General of a United Nations agency should be prepared to expose his thoughts to the robust forum of thought which is the intellectual property blogosphere. In retrospect, however, one can see why Dr Gurry would have agreed. While he is a career diplomat who respects the rules and conventions which that role demands, those close to his office say that he has in recent months been seen to have been showing signs of being a visionary in his field, a role that is difficult to fulfill within what the IPKat and Merpel would regard as the chafing confines and stifling etiquette of the diplomatic environment in which he discharges his official functions.

Given Dr. Gurry’s many and magnificent achievements to date, there is every hope that he can rise to the standards expected of other illustrious members of the IPKat litter.

On a more sombre and apparently unrelated front, it seems the WIPO has finally begun the inevitable and essential task of oversight of blogs that may be having a negative impact of the world of IP. The IPKat is reporting, based in turn upon reports from the extremely reliable and esteemed William Mew, Editor of IP Watch, that:

 ...the WIPO Council has approved in outline the establishment of a two-tier “watch-list”: there would be an “A-List” of intellectual property weblogs which are considered to be potentially harmful to the intellectual property environment and a “B-List” of those which are seen as being positively detrimental to the aims and objectives of rights protection.

It seems that one of the first targets for designation on the “A-List” will be this very blog. Mr. Mew is reporting that a WIPO spokesperson --who asked not to be identified by name --  explained that neither list has yet been ratified, but possible blogs for inclusion on the “A-List” include yours truly Howard Knopf’s Excess Copyright (this very blog itself), which "is known to have targeted the much-admired United States ‘301 reports’." As to candidature for the “B List”, the IPKat reports that Mr. Mew has learned that:

Favourites for inclusion on the “B-List” are the Lessig Blog, which is generally held responsible for undermining copyright values among impressionable young readers and remains visible nearly two years after its author went into hibernation, Against Monopoly, for allegedly defending the right to innovate, and the IPKat for its persistent criticisms of WIPO’s failure to protect the rights in its own logo...

We look forward to further news from London and Geneva on related front. Check back for further developments via the IPKat blog here and here.

HK