Update on Memoranda in Warman and National Post v. Fournier & copyright in headlines, limitation periods, etc.

On March 14, 2013 I wrote about the appeal in Warman & National Post v. Fournier, and in particular about the National Post’s effort to establish that it has an enforceable copyright interest in the headline or title “"Jonathan Kay on Richard Warman and Canada's Phony-Racism Industry"”.

By way of update, here are all three memoranda of law on behalf of:

Richard Warman,

National Post, and

Mark and Connie Fournier, who are self-representing.

Warman’s memorandum is confined to the single but important issue of whether the three year limitation period in the Copyright Act applies with respect to “continuing or ongoing infringement”.

The National Post ((which, for whatever reasons, took no part in the proceedings below), is dealing with the substantive copyright issues.

Because there are wide-ranging and fundamental copyright issues of a procedural and substantive nature at stake in this case, applications to intervene would not be surprising. I will post them as they happen.

HPK

Moral Rights in the USA - "Frankly, My Dear, I Don''t Give a Damn" v. "Tomorrow Is Another Day"

For better or worse, Clark Gable seems to sum it up very well for the US attitude towards moral rights.

Mira Rajan - after a long blogging silence – has re-emerged on the 1709 Blog and is once again tilting at a windmill, this time at the issue of moral rights in the USA – or more particularly the lack thereof.

What she does not seem to realize is that:

• Frankly, for better or worse, virtually nobody with any influence in the USA would seem to actually “give a damn” about moral rights for anyone other than for visual artists. RIP Ted Kennedy.  See "Frankly my dear, I don’t give a damn…”
• The USA cleverly and cynically exempted itself in the TRIPs agreement from repercussions  under international law for its failure to provide moral rights. The world let the USA get away with this
• The Berne Treaty provides no recourse for failure to provide redress for non-existent moral rights regimes
•  Maria Pallante, the recently appointed US Register of Copyrights, in her recent speeches and testimony to Congress said not an iota about moral rights.
• We can expect no more attention from the US Congress on moral rights than we can expect their devotion to combatting global warming, repeal of the second amendment regarding gun control, Canadian style Medicare, or a unanimous affirmation of the principle behind Roe v. Wade.
• Moral rights reform in the USA is, for better or worse, probably a lost cause in our time. Mira’s research skills might be better devoted to something in the realm of art of the possible.
• Even in countries such as Canada where moral rights has been given a high legislative profile, there are less than a handful of meaningful judicial decisions in the last 80+ plus years that moral rights have existed in Canadian legislation…
• When it comes to moral rights in the USA, it would seem that “tomorrow is another day”…

HPK

Access Copyright v. York University - Statement of Claim including Schedule "B"

Here is Access Copyright’s Statement of Claim against York University.

There are three schedules including the Interim tariff approved by the Copyright Board 18 hours before Christmas (here is a link to the Board version), 2010 (Schedule "A"). Here is Schedule "B", courtesy of Alan Macek.

Schedule "C" is the York U fair dealing guidelines dated 11/13/12, available here.

AC seeks to enforce this interim tariff and get paid in full for it and get an injunction against York U operating outside the tariff, among other things.

So, the "mandatory tariff" issue is now front and centre.

Suffice it to say for the moment that this is a very interesting attempt to enforce the interim tariff, which is referred to as the "Approved Tariff". It is not framed as an infringement action.

HPK

rev.

Access Copyright Thrashes Thrice

Access Copyright (“AC”) today announced:

• A lawsuit has been launched against York University. It alleges that York's purported fair dealing guidelines authorize and encourage copying that is not supported by the law, and that there is no justification for the University to operate outside the interim tariff.
• An interim elementary and secondary school education tariff application has been filed with the Copyright Board of Canada. This application seeks an effective enforcement mechanism against the ministries of education and Ontario school boards for their stated intention to stop paying the royalties set by the Copyright Board.
• A proposed post‐secondary tariff has been filed with the Copyright Board of Canada for the period of 2014‐2017. With this application, Access Copyright ensures the continuation of an existing process at the Copyright Board to establish the royalties to be paid for the use of copyright‐protected content in post‐secondary educational institutions.

I have a copy of the second item, namely the interim elementary and secondary school education tariff application, which is attached.

This application for an interim tariff seeks an enforceable tariff based upon AC’s notion of fair dealing, notwithstanding that the K-12 schools have all apparently determined based upon legal advice from counsel that they do not need a license from AC, presumably because everything they copy is either not in AC’s repertoire or is insubstantial or is fair dealing. Much as certain folks may be in denial, we have heard from the Supreme Court of Canada and Parliament on these issues quite recently and quite explicitly. This application will be nothing if not controversial, if it indeed proceeds.

Interestingly, this follows a recent speech in Toronto by the General Counsel of the Board. A very reliable person who attended that speech (I did not) has advised me that the speaker commented that he had heard that schools would be relying on a fair dealing policy in which ‘everything is claimed to be fair dealing’ and that he thought it was “courageous” for schools to rely on such a policy. He reportedly then said, with AC very much present, that if AC wanted to move forward on the K-12 2010-2012 and 2013-2015 files, it could bring the fair dealing policy before the Board. My source of this information is “positive that he said the word “courageous” but the other sentences aren't exact quotes”.

I also attach AC’s proposed post-secondary tariff for 2014-1017. I haven’t read it in any detail. However, I note that it still purports to cover posting a link or hyperlink to a digital copy. And, ever the apparent voice of sweet reason, the proposed FTE rate is lowered by $10 to $35 and $25 for Universities and “all other Educational Institutions” respectively. That said, the fact is that dozens of post-secondary institutions have decided that an AC license is not worth taking at even the "discounted" prices earlier offered of $26 and $10 respectively. Prof. Sam Trosow has called this #ACdeal “a bad deal at any price”

I am waiting for a copy of the lawsuit against York University supposedly based upon its fair dealing guidelines. In the meantime, it’s interesting to speculate on why AC would seek what sounds like a very  vague declaration – which the Courts may be disinclined to even consider - rather than actually sue for infringement (if any, and leaving aside some rather existential questions about "standing") or to deal with this in the current and proposed Board proceedings.

HPK

PS - A vigilant and loyal reader reminds me that IP Osgoode reported at length on General Counsel Mario Bouchard's January 28, 2013 ALAI presentation referred to above here.

rev. April 9, 2013

Recent Legislative Developments In Canadian Copyright Law: Is Canada A Reliable Role Model Or A Renegade Rogue? From Fordham 2013

Here is my presentation on the legislative developments in Canadian copyright law in 2012 - which led to a 70 minute long Fordham 2013 session in the amphitheater. Interestingly, the more negative comments on Canada came not so much from the usual American suspects - who have implicitly if not explicitly now noted that certain promising things have happened in Canada and that Canada is no longer quite as bad as the Ukraine. The more negative or skeptical comments came rather from certain Canadian sources. However, I, for one,  do believe that Canada's Parliament and the Supreme Court of Canada have both fulfilled their roles elegantly and have, in 2012,  made Canada a role model for other nations to follow.

So - here are my slides. My comments are in green bold. Most of the rest of this is quotations from the statute, the legislative summaries from the Library of Parliament, the regulation and Bill C-56:

  HPK Slide Show Re CDN Legislative Developments Fordham 2013 Final by hknopf

HPK