- We can probably expect a decision sooner rather than later from the Federal Court in Phase I of the Access Copyright v. York U litigation. Indeed, the decision could come any time now, since final arguments were made June 22 - 24, 2016 and the Federal Court usually renders judgments within six months or less. The decision will likely deal with whether the "interim tariff" that is the basis of the litigation was "mandatory" and York's fair dealing guidelines. These were the key "Phase I" issues.
- We can expect a decision in RE:SOUND v. CANADIAN ASSOCIATION OF BROADCASTERS ET AL, on judicial review from the Copyright Board, which was heard by the Federal Court of Appeal (“FCA”) on February 24, 2016. The long delay is unusual for a Court that usually renders decisions in a few weeks and normally less than six months.
- We can expect a decision from the Federal Court of Appeal in the judicial review of the AC K-12 decision from the Copyright Board, which was heard on November 22, 2016. Likewise, there will very likely be a decision from the Federal Court of Appeal in the judicial review of the AC Provincial Government tariff, which was heard on June 20, 2016, in which fair dealing was a major issue. Although these cases were heard by different panels on different dates, there are some common issues and the decisions may very well come down together and will presumably be consistent.
- At some point, there will be a decision from the Copyright Board in the AC Post-Secondary tariff case, from which the interim tariff that gave rise to the York University litigation arose. This case, which began in 2010, was finally heard by the Copyright Board in January of 2016. For all practical purposes, it was a default proceeding. The Copyright Board “ordinarily” and, indeed, often takes two years or more to render decisions – a delay that is unusual by any measure. So, a decision in 2017 – while certainly reasonably to be expected – cannot be assured unless the new Chairman is able to change the way the Board has worked for very many years.
- Other decisions under advisement at the Copyright Board involve retransmission and online music services, including the long outstanding ruling on whether there is now a new “making available right” and, if so, how tariffs will be affected.
- 1997, c. 24, s. 50;
- 2012, c. 20, s. 58.
- 92 (1) Within five years after the coming into
force of this section,
the Minister shall cause to be laid before both Houses of Parliament a
report on the provisions and operation of this Act, including any
recommendations for amendments to this Act.
- Marginal note: Reference
to parliamentary committee
- 1997, c. 24, s. 50.
- The roll back of the Supreme Court of Canada (“SCC”) rulings on fair dealing, namely CCH v LSUC, SOCAN v. Bell and Province of Alberta v. Access Copyright
- To repeal the explicit inclusion of “education” in s. 29 in the 2012 legislation, not that it has made any great difference given that the key SCC fair dealing rulings were all based on the previous law
- To impose some version of an “iPod tax” on memory and devices or even the “cloud”, or perhaps a “linking” or “snippet” or other form of “tax” on search engines and news aggregators, or some kind of general ISP “tax”
- To eliminate or at least raise the $5,000 cap on statutory damages for non-commercial infringement
- Term extension to life + 70 years – especially if NAFTA is re-opened as Trump keeps threatening
- Amendments to create new rights and to attempt to force the Copyright Board to eliminate what they call the “value gap”, which will become their mantra.
- Amendments to force incorrect interpretations of the Berne “three step test” and US jurisprudence on the “effect on the market” into Canadian domestic law
- Explicit “fair dealing” provisions to legitimize the circumvention of technical protection measures (“TPMs”) in appropriate circumstances and, as Michael Geist says, “to fix the imbalance on fair dealing in the analog and digital worlds that has undermined Canadian innovation and the commitment to balance found in copyright law”
- Elimination of criminal offences in relation to circumvention in the absence of commercial scale activity
- Regulations to prohibit the use of the “notice and notice” mechanism to troll for settlement demands
- Provisions to prohibit the use of “reverse class actions” for copyright infringement
- Elimination of crown copyright in laws, statutory instruments and in any material incorporated by reference into the law.
- Explicit confirmation that copyright users’ fair dealing rights cannot be waived by means of contracts or otherwise.