A Supremely Cool Day in Ottawa At and From the Supreme Court of Canada

This morning, we learned from recently retired Justice Marshall Rothstein and his colleagues on the Supreme Court of Canada, none of whom dissented on these points, and to the great satisfaction of my clients the Centre for Intellectual Property Policy of McGill University (headed by Prof. David Lametti, now David Lametti, M.P.) and Prof. Ariel Katz of the University of Toronto, both of whom appeared with me at the hearing, that inter alia:

 (108)      SODRAC’s framing of the issue is not entirely wrong: the Board does have the power under s. 70.2 to “fix the royalties and their related terms and conditions”. That is, the Board may decide upon a fair royalty to be paid should the user decide to engage in the activity at issue under the terms of a licence. However, this power does not contain within it the power to force these terms on a user who, having reviewed the terms, decided that engaging in licensed copying is not the way to proceed. Of course, should the user then engage in unauthorized copying regardless, it will remain liable for infringement. But it will not be liable as a licensee unless it affirmatively assumes the benefits and burdens of the licence.... 

(113)        I find 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.

And by a remarkable coincidence that could only happen in Ottawa, I attended an event tonight in the lobby of the Supreme Court of Canada hosted by the Bora Laskin Society at which we heard inspiring, wise and witty stories from Justice Michael Moldaver with moderator Professor Adam Dodek. 

And, with the kind and patient tutelage of none other than Justice Russell Brown, the recently appointed Justice of the Supreme Court of Canada who fills the vacancy left by Justice Marshall Rothstein who retired this summer, I finally learned how to do a selfie. And here's that selfie:

HPK