"Deliverance" by John Boorman 1972
Here’s a summer’s end snapshot
about the state of copyright in Canada in 2019 as we:
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Digest two contrasting and competing
parliamentary committee reports;
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Await the ruling, which could come at any
time now, of the Federal Court of Appeal (“FCA”) in the Access Copyright
v. York University litigation;
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Await the ruling of the Federal Court of
Appeal in the “making available” case, heard on November 26, 2018 (this is an
unusual delay on the part of the FCA):
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Await the ruling of the Supreme Court of
Canada in the Keatley survey case, which we shall learn on September 26, 2019. Regrettably, the main parties are not challenging the
subsistence of copyright in land surveys, which is far
from self-evident;
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Await potentially important rulings in the
Voltage Pictures et al mass litigation in Canada, including the unprecedented attempt
to certify a “reverse class action” against ~55,000 alleged copyright
infringers who have no inkling at this time that they are potentially about to
be sued. The certification motion will be heard on September 23 and 24, 2019 in
Toronto. (see here for update);
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Witness escalating attempts by Bell,
Rogers and others at website blocking through the Federal Court in an apparent
follow-up to their unsuccessful to date attempts in their “FairPlay” coalition campaign
at the CRTC and through Parliament;
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Watch a newly launched attack on four of
Canada’s largest and most prestigious electronics retailers in the Federal
Court. This extremely unusual litigation suggests some
sympathy and perhaps even coordination or more with the FairPlay coalition. Stay
tuned on this;
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Await regulations that will supposedly but unlikely do something to solve the unique
and unacceptable “delay” problem at the Copyright Board;
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Await the response of the Federal
Court to the failure of the parties to agree on a jointly
proposed timetable leading up to the hearing of the Defendant's motion for summary judgment in the
Blacklock’s litany of litigation;
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Deal with the loss by retirement of two
long standing and outstanding public servants at the Copyright Board from the
posts of Vice Chair and Secretary General, and await the impact of two recent
appointments in their place of senior people from the Department of Canadian
Heritage who have presumably worked together for many years, both with significant
policy and bureaucratic experience in copyright from that Department’s point of
view. To the best of my knowledge, this is the first time in the Board’s history
that neither holder of these two key positions will have had any legal credential;
and,
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Head into an election with a very
uncertain outcome.
I won’t discuss all of
these at this time, but I will touch on some in more detail below. Some I have
dealt with before.
The
INDU Committee Report
I have some very belated
comments about the June 2019 INDU Committee s. 92 Report entitled
Statutory
Review Of The Copyright Act: Report Of The Standing Committee On Industry,
Science And Technology. Dan
Ruimy was the Chair. My response has been belated partly because of
distractions in other directions, partly because of summer, partly because nothing
is going to happen anytime soon due to the Parliamentary recess and the imminent
election, and partly because others have covered it well, and mostly because it
speaks very brilliantly for itself. Michael Geist has, as usual, been quick,
decisive, and accurate in his coverage and
provides some interesting subjective as well as data analysis about how this
report compares with the unfortunate “Values Gap” report,
as I call the Shifting Paradigms document
from the other Committee. Michael also has a good podcast with Carys Craig
about this report.
In my nearly four decades
of involvement with copyright law and policy, this INDU report is one of the
best and most important single copyright document I have seen from or under the
auspices of the Government of Canada. Of course, this is not a “White Paper”
that carries with it the imprimatur of government policy. It is so far only a
committee report. It does not have a pretentious title, such as that of Shifting Paradigms,
the report issued a few weeks earlier by the CHPC (Canadian Heritage) Committee
chaired by Julie Dabrusin that went far beyond its mandate and produced a
report that could very well have been written by the usual lobbyist suspects. I have called the CHPC document the “Values Gap” report
– with no apology to Music Canada, the inaptly named lobby group that
overwhelmingly represents the American recording industry and which has been noisily
flogging the theme of “Value Gap” and continues to do so with still more
inaccurate and even misleading information. See, for example, its recently
released report entitled “Closing The Value Gap”. Music Canada, BTW, unsurprisingly loved the Shifting
Paradigms report. Not surprisingly, it essentially dissed the INDU report.
There was also a remarkable and unusually explicit press release from
the INDU Committee concerning the CHPC committee report that is
unprecedented in my experience. However,
as I will show below, the seeds of this internecine discontent go back a long
way and it is best that the current generation of policy makers be sufficiently
aware of this history.
The INDU report is very
detailed and reflects an astonishing amount of careful work by the Committee members
and its staff. There are 390 footnotes and countless detailed and references to
those who contributed time and expertise as witnesses and authors of briefs – unlike the CHPC committee, which simply
ignored the testimony it didn’t like and doesn’t even provide the courtesy of a
reference to the actual submissions of those such as myself and many others who
tried to help them but were treated so inappropriately by them. This is particularly
unfortunate, since the CHPC committee heard from far fewer witnesses than did
the INDU committee, as Michael Geist has shown.
INDU did its work in a
very short time – the hearings concluded only last December. Such productivity
with limited resources on so many complex copyright issues involving so many
documents and witnesses makes an interesting contrast with Canada’s Copyright
Board, which often takes seven years or
even more to render decisions on normally narrow factual and legal issues
related to copyright. The current Access Copyright Post-Secondary Tariff case
has been ongoing for more than nine years now – with no end in sight. The INDU
Committee, on the other hand, regularly deals with an enormous spectrum of
issues and has less resources and a much heavier workload than the Copyright
Board. Of course, the Committee and the Board have different roles – the former
is not a Court, and the latter is a “quasi-judicial” tribunal.
More
Specific Comments on the INDU Report
The report, while
excellent, is still not perfect. For example, here are some issues that I would
have liked to see addressed but which were not:
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There is a need to confront the mandatory
tariff issue directly and not wait for the Courts, which may or may not get it
right and where it will likely take many years to resolve, given the way the
litigation has unfolded – e.g. York’s strategy at trial of not confronting the
issue of whether “final approved” tariffs are mandatory. This strategy was
criticized in detail by Prof. Katz in a widely read blog entitled Access
Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss
posted shortly after the trail judgment was released on July 13, 2017. York’s position on appeal was somewhat, though
not resoundingly, more forceful. The interventions were somewhat restrained. It
remains to be seen whether York will prevail on the appeal, and if so on what
basis. Some of the points that arguably should have been made still did not get
made by York or any of the interveners in the Federal Court of Appeal because
my client CARL’s application for leave to intervene was denied by a single Federal
Court of Appeal judge, along with a motion for reconsideration. Much of the
material for that effort is available here.
One way or another, this case is likely headed to the Supreme Court of Canada
assuming that leave to appeal would be granted – where hopefully all appropriate
interventions will be heard, and all essential arguments will be adequately made.
However, a ruling from the Supremes could take another 1.5 to two years and may
not even then be conclusive, depending on a number of factors – most notable of
which is whether the issue of whether “final approved tariffs” are mandatory will
be fully and adequately confronted and addressed. If this is not resolved
correctly by the Courts, Parliament will need to intervene – and argue should
do so in any event sooner rather than later in order to prevent potential chaos
in the educational community. With all respect, one cannot count on the Courts
to get this one right at the end of the day, especially given the record to
date.
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There is a need to explicitly provide that
contractual provisions that purport to limit users’ rights, such as fair
dealing, are not enforceable. For example, the UK copyright law
now includes the provision “To the extent
that a term of a contract purports to prevent or restrict the making of a copy
which, by virtue of this section, would not infringe copyright, that term is
unenforceable” in order to ensure that contracts cannot override fair dealing
rights.
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There is a need to deal with the avalanche
of mass litigation – in which up to 55,000 people are being sued at once for a
court filing fee of $50 in total for alleged copyright infringement. That’s less
than a tenth of cent EACH for each potential defendant in the so-called
“reverse class action”. The other 19 or so mass actions are somewhat more
modest, typically suing several hundred rather than several thousand “Doe”
defendants. Although these proceedings are being conducted by a large and
reputable Bay Street law firm and in a competent, courteous, and professional
manner in contrast to what we have seen in extremis in the USA, there are very serious access to
justice issues for those who are being dragged in. Access to justice for
individuals is all but illusory. Settlements of hundreds of dollars and even more
are being collected from people who are guilty only of merely paying for
Internet service, something the Supreme Court of Canada said should not be
happening.
The
Historical Context of Internecine Debate is Important
As I’m fond of repeating
in this context, those who don’t know history are condemned to repeat it. There is a long history leading up to the fact
that we have two parliamentary committee reports that are, to put it
euphemistically, in sharp contrast to each other. I will save the details of
this history to a later time and perhaps another forum. Suffice it to say that
it traces back to the late 1970s and mid-1980s when the predecessor departments
to what are now ISED and Canadian Heritage were to some significant extent at
loggerheads and at times in conflict with each other over copyright. This
division was reflected in contrasting publications and in the dynamics behind
the major 1988 and 1997 revisions. This dialectic, debate, dueling publications
and dual responsibility has long since been hardwired into the system and still
survives, at least structurally. This is not necessarily a bad thing and the
result has been a copyright statute that is stronger, better and more balanced in many ways than that of any other
country and certainly superior to that of the USA from whence virtually all of
the lobbying pressure is coming. That is not to say that it
cannot and must not be improved. Hopefully that will happen sooner rather than
later. If we get a chance to redo the CUSMA deal, which may be possible given
the current chaos in the American political climate, we should definitely undo
the unfortunate concession of a twenty-year term extension.
Overall, the INDU report
is a good step in the right direction and, hopefully, the next government will
pick up this thread.
So, this is context in which
the duelling reports have been launched. In many ways, it is déjà vu all over
again.
Copyright
Board
There has been a recent
promise of regulations that will supposedly address the “delay” issue at the
Copyright Board. As I have written elsewhere,
I doubt that the proposed regulations will be helpful to any significant
extent. In any event, these regulations are clearly on hold pending the election
and resumption of normal government business.
This year is the 30th
anniversary of the Copyright Board as we now know it and the 83rd
anniversary of its predecessor, the Copyright Appeal Board. I shall shortly be
writing about some reflections on the Board’s achievements both positive and
problematic over these three decades and in the context of its predecessor the
Copyright Appeal Board that came into existence in 1936 following the
monumental Parker Commission. Sadly, there is little basis at this time for optimism in the short or
medium term about the problems with the Copyright Board. Meanwhile,
the proposed Access Copyright Post Secondary Tariff has been languishing for
more than 9 years with no end in sight, despite the withdrawal of the main
parties long ago. The Board’s earlier ill-considered
but inexplicably unchallenged interim tariff ruling gave rise to the Access
Copyright v. York University litigation. The Board seemed poised to finally rule
on this proposed tariff earlier this year, but has apparently retreated – possibly
as a result of its unusual request for comments from “affected persons”, as a result
of which it then got an earful and then astonishingly, unceremoniously and without
even notifying the “affected persons” announced that their submissions would be ignored,
and possibly because of indecision in the face of the pending decision of the
Federal Court of Appeal in the York case. This file could very well prove to be
the Board’s Waterloo.
Conclusion:
As always in copyright
law, but more so than usual, we live in interesting time.
HPK
