Wednesday, March 27, 2019

Keatley v. Teranet: Land Surveys, the Law of the Land and Access to Justice – The Supremes will Have Their Hands Full but will They Have Everything they Need?

(Clarke Surveyors Inc.)

An interesting and potentially very important copyright case is about to the heard by the Supreme Court of Canada on appeal from the Ontario Court of Appeal in the Keatley v. Teranet case. Here’s the SCC’s summary – which is not official but which is concise and useful. Here are a few points to note.

The case concerns copyright in land surveys – which are an essential element in Ontario of proof of land ownership and which are a key component of all real estate transactions. These surveys are required by law and required to be registered on title and the Government of Ontario has privatized key aspects of the land registration system to an entity known as Teranet. The case is focussed on crown copyright and s. 12 of the Copyright Act.

Teranet, which is resisting the payment of additional fees to surveyors beyond that which they were paid originally for doing the survey – has never disputed the notion that copyright subsists in land surveys.  Indeed, the two actual parties (Keatley and Teranet) agreed for purposes of this litigation that copyright so subsists, although this crucial issue is far from clear and certainly not obvious.

There are a number of interveners in the case, who are providing valuable and essential input under the relatively new intervention constraints which permit at most a 10-page factum and five minutes of oral argument. Here is a link to all the factums. Particularly noteworthy IMHO are the intervener factums of the Attorney General of Canada, Canadian Association of Law Libraries, CANLII and the Federation of Law Societies, and the Centre for Intellectual Property Policy + Prof. Ariel Katz.

Also, of great interest, is that that similar and related issues are pending in the case of  P.S. Knight Co. Ltd. v. Canadian Standards Association, 2018 FCA 222, recently decided in a split decision by the FCA favouring the CSA. This case concerned whether copyright exists and is enforceable with respect to privately developed electrical safety codes that become incorporated by reference into Canadian law. The decision was rendered on December 7, 2018 and CSA predictably quickly sought and has been granted leave to intervene in the Keatley case in the SCC. Surprisingly, however, P.S. Knight, did not even try to seek leave to intervene in Keatley, although it has asked for leave appeal its own case to the SCC. Although the Knight decision has been referred to and the obvious issue of access to justice has been raised in some of the intervener material, the Knight case might have forced this issue to the forefront. Clearly, these two cases will not be heard together – which might have been a possibility and arguably would have been ideal. Moreover, it is entirely possible that leave to appeal won’t even be granted in the Knight case. In any event, it is very likely that, if normal timelines are followed, the Keatley case will be decided long before the Knight case is even heard, assuming that P.S. Knight gets leave to appeal.

In any event, and without involvement of P.S. Knight, the Keatley case will go forward and will be heard on March 29, 2019. The webcast will be available here.


Wednesday, March 13, 2019

Update on Access Copyright Proposed Post-Secondary Educational Tariffs: 2011 - 2013 and 2014 - 2017

On February 19, 2019, I published a blog about how the Board was seeking comments from the “Parties” on the proposed draft tariffs sought by Access Copyright for the post-secondary sector. The Board confirmed to me that the only “Parties” were Access Copyright and Mr. Sean Maguire, a self-represented student. The Board kindly provided me a copy of the draft tariffs, which I posted on that blog.  

Then, on March 6, 2019 in the morning and just after the beginning of the final three hours of the Federal Court of Appeal (“FCA”) hearing in Access Copyright v. York University, the Copyright Board sent out the email shown below. Almost all of the addressees were the original list of objectors and interveners from 2010 in the Access Copyright post-secondary tariff. The Board’s only limit on who it will hear from now is that the comments must be from an “affected person” – which presumably would include any individual or institution concerned about copyright in the post-secondary realm in Canada, i.e. any post-secondary students, librarians, teachers, administrators, colleges, universities and the institutions that represent them. The email has been widely shared:

From: "Boisjoly-Letourneau, Karine (CB/CDA)" <>
Date: Wednesday, March 6, 2019 at 9:39 AM
Cc: "McDougall, Gilles (CB/CDA)" <>, "Campanella, Nadia (CB/CDA)" <>
Subject: Access Copyright – Post-Secondary Educational Institutions (2011-2013 and 2014-2017) - Notice [CB-CDA 2019-013]

[CB-CDA 2019-013]


The Board wishes to consult affected persons on issues of tariff wording before proceeding to certification.

The Board seeks comments on the two attached draft tariffs, for the periods of 2011-2014 and 2015-2017. The text of these tariffs is based, respectively, on the 2012 AUCC Model Licence (Exhibit AC-2V), and the University Three-Year Premium Licence (Exhibit AC-23N), which are attached. Affected persons shall comment on the feasibility and clarity of the terms of the tariff. Comments may be informed by the attached comments of the Parties to this proceeding: Mr. Maguire and Access Copyright.
Portions of the draft tariffs in respect of rates and interest factors have not been included in the attached versions.
 Any affected person wishing to comment on the draft tariffs may do so by no later than Friday, March 15, 2019, by sending their comments to the Board. Any comment should be no longer than 3 pages in length.
The Board will subsequently provide Parties to this proceeding with all comments received pursuant to this Notice and provide an opportunity to reply thereto in a separate notice.
 Karine Boisjoly-Létourneau
Assistant Clerk│Greffière adjointe
Copyright Board of Canada│Commission du droit d’auteur du Canada
56 Sparks, Suite│Bureau 800
Ottawa ON K1A 0C9
Telephone│Téléphone 613.948.7257

(highlight added)

For the convenience of readers who didn’t get the mail, here are links to the 2012 AUCC Model Licence (Exhibit AC-2V), and the University Three-Year Premium Licence (Exhibit AC-23N) and the comments of Access Copyright and Sean Maguire.

The above email of March 6, 2019 now appears as a Notice on the Board’s website, but without the attachments.

The Board has since advised by email dated March 11, 2019 that the deadline of March 15, 2019 has been extended to March 22, 2019. The Board has issued the following Notice, which has not yet been posted online as a Notice:

[CB-CDA 2019-014]
Earlier today Counsel for Universities Canada requested an extension to Wednesday, March 27, 2019, of the March 15, 2019, deadline for comments set out in Notice 2019-013. This request is partially granted.
Any affected person wishing to comment on the draft tariffs in the above-mentioned file may do so by no later than Friday, March 22, 2019, by sending their comments to the Board.


PS - the Board has now put the foregoing Notice [CB-CDA 2019-014] on its website.

Monday, March 04, 2019

Access Copyright v. York U – the Federal Court of Appeal Hearing is March 5 and 6, 2019

The long-awaited hearing in the appeal of the Federal Court’s decision in  Canadian Copyright Licensing Agency v. York University, 2017 FC 669 (CanLII), will take place on March 5 and 6, 2019.
Indeed, if a tariff is not mandatory when parties voluntarily come to the Board to “arbitrate” a dispute, it should be all the more (“a fortiori” as lawyers say) non-mandatory when parties are dragged kicking and screaming before the Copyright Board and would prefer to clear their copyright needs in other ways.

As followers of this case will know, I attempted to get leave to intervene for the Canadian Association of Research Libraries (“CARL”). Unfortunately, in my opinion, the motion for leave to intervene was dismissed and a motion for reconsideration of that decision was also dismissed.

For those who are interested, which may include the academic community in general and copyright law professors and practitioners in particular, I am posting some of the material that was filed on behalf of CARL:

[112I conclude that the statutory licensing scheme does not contemplate that licences fixed by the Board pursuant to s. 70.2 should have a mandatory binding effect against users. However, this case does not require this Court to decide whether the same is true of collective organizations. It may be that the statutory scheme’s focus on regulating the actions of collective organizations, and the case law’s focus on ensuring that such organizations do not devolve into “instruments of oppression and extortion” (Vigneux v. Canadian Performing Right Society, Ltd.1943 CanLII 38 (SCC), [1943] S.C.R. 348, at p. 354, per Duff J., quoting Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109, at p. 128) would justify finding that the Board does have the power to bind collective organizations to a licence based on the user’s preferred model — transactional or blanket — on terms that the Board finds fair in view of that model. However, this issue was not argued in this case.

[113I 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.
(highlight added)
By way of update, here is what I recently said about this issue in my December 10, 2018 brief to the INDU Committee in its s. 92 hearings:
2.     We need to clarify that copyright board tariffs are not mandatory for users
The elephant in the room is the issue of whether Copyright Board tariffs are mandatory. They are not. I successfully argued that case in the Supreme Court of Canada (“SCC”) three years ago[2] – but most of the copyright establishment is in denial or actively resisting. A tariff that sets the maximum for a train ticket from Ottawa to Toronto is fine – and we used to have such tariffs before deregulation. But travellers were always free to take the plane, bus, their own car, a limousine, their bicycle or use any other legal and likely unregulated means.

There is intense litigation ongoing between Access Copyright and York University – now in the appellate stage and other litigation in the Federal Court involving school boards. Unfortunately, York failed in the trial court to address the issue of whether final approved tariffs are mandatory.[3]Hopefully, the FCA and maybe the SCC if necessary will get this right in due course. But we can’t be sure, and the other side is lobbying you heavily on this issue, including with such devious and disingenuous suggestions as imposing a statutory minimum damages regime of 3 – 10 the tariff amount on the  totally inappropriate basis of symmetry with the SOCAN regime – which is the way it is for good reasons that go back more than 80 years but would be totally inappropriate for tariffs outside the performing rights regime.

I urge you to codify and clarify what the SCC has said in 2015, consistently in turn with previous SCC and other jurisprudence going back decades – that Copyright Board tariffs are mandatory only for collectives but optional for users, who remain free to choose how they can best legally clear their copyright needs.

My suggestion is that Parliament use the well know legislative drafting technique of stating “for greater certainty”. This phrase already occurs 14 times in the Copyright Act, including for example s. 13(7). which states:

(7) For greater certainty, it is deemed always
to have been the law that a grant of an exclusive
licence in a copyright constitutes the grant
of an interest in the copyright by licence.
R.S., 1985, c. C-42, s. 13; 1997, c. 24, s. 10; 2012, c. 20, s. 7.
(highlight added)

I am suggesting that Parliament should now declare that:

For greater certainty, it is deemed always to have been the law that when the Copyright Board approves or certifies a tariff, whether interim or final, the collective to which that tariff applies cannot demand higher royalties or demand more onerous related terms and conditions than those approved by the Board, but the duty to pay such royalties and comply with their related terms and condition applies only to a user who has paid or offered to pay the royalties under such a tariff. A user who has not offered to pay such royalties may nonetheless be liable for copyright infringement.
(highlight added)

2) Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57.  See paras. 101 – 113. The factum presented to the SCC as prepared by myself, Prof. Ariel Katz and Prof. David Lametti, as he then was, is available here.


“Reclaiming Fair Use” by Aufderheide & Jaszi – My Treat During Fair Use/Fair Dealing Week

I took some time during fair use/fair dealing week to belatedly look at the second edition of “Reclaiming Fair Use” by Patricia Aufderheide and Peter Jaszi published last year by the University of Chicago Press. This is an update of the first edition published in 2011 by the same authors.

The book, by its nature, is primarily about the American landscape of fair use. However, it is an important book for Canadians.

Despite the significant scholarly credentials and accomplishments of the authors, the book is written in very plain language that bridges the gap between lawyers and laypersons. Both will find it useful and appealing. There are no footnotes – but lots of references, which are now, of course, easy to track down through the obvious sources on the internet.

The book examines the culture of fair use, and the development of the doctrine in the law, the courts and above all in the real world of education, films, etc. It includes a good list of various Codes of Best Practices and a specific Statement of Best Practices for documentary film makers, a subject dear to my heart having done a still useful White Paper for the Documentary Organization of Canada back in 2006.

The book is not a legal text, as such, though I have found it useful to confirm in clear, simple and authoritative terms certain contentious points, for example to diffuse the inaccurate statement that the fourth factor in American law concerning the effect on the market has priority over the other factors. See the interesting “kerfuffle” interchange on my blog involving  me, Ariel Katz, Bill Patry, Barry Sookman and Dan Glover from 2012.

The second edition of the book does have a brief reference to Canada. The authors credit David Vaver, Michael Geist, Ariel Katz, myself and Laura Murray for having “helped to persuade the courts there [Canada] – and particularly the Supreme Court – to apply fair dealing with an emphasis on interpretive openness and technological neutrality. This approach is justified in part by the fact the Canadian judges explicitly regard fair dealing as a users’ right.” This comment is very flattering. However, one hopes that the next edition may have more about Canada – perhaps a whole chapter?

This book along with that of  Murray and Trosow (2013) and collected papers in a 2013 book edited by Michael Geist available via open access here should be on the shelf of anyone in Canada who is concerned about fair dealing or fair use and the law, culture, politics and advocacy trends that are involved. Such readers would include:
·        Copyright librarians
·        University counsel
·        Copyright lawyers
·        Copyright professors
·        Policy analysts in government
·        Researchers in intuitions where copyright is important, including many government departments, agencies, and the Copyright Board
·        Members of the INDU Committee s. 92 review and their staff
The only other reliable books of which I am aware of interest to Canadians that are written in language that both lawyers and non-lawyers can appreciate are by David Vaver – but they are out of date on the topic of fair dealing and the 2012 legislation and “pentalogy” case law.

There are also numerous posted guidelines about fair dealing in Canada from various institutions. Some of these are more reliable than others. I am admittedly partial to the guidelines I helped to draft, namely those of the University of Toronto. Readers should be aware of any approach or material that seems too arbitrary or too simple.