Objections Filed re Access Copyright Proposed Post-Secondary Tariff for 2021-2023 and Update re 2011-2017

Some objections have been filed to the Access Copyright (“AC”) proposed Post-Secondary tariff for 2021-2023. These were due December 9, 2019.

Interestingly, by remarkable coincidence, the Board finally issued its decision in the more than nine-year-old AC Post-Secondary proposed tariff file for 2011-2017 only on Friday December 6, 2019 at the end of the day – the eve of the due date for objecting to the 2021-2023 proposed tariff. For the moment, suffice it so say that the decision is extremely expensive, extremely retroactive and, among many other things, it sidesteps any determination about fair dealing or whether tariffs are mandatory.

Access Copyright – Post-Secondary Educational Institution Tariffs (2011-2014 and 2015-2017)

Reasons (December 6, 2019)

Tariffs (December 7, 2019)

Fact Sheet (December 6, 2019)

The AUCC (now Universities Canada) withdrew from the proceedings and indeed withdrew its objections in 2012. I wrote about the AUCC model licence and its withdrawal at the time. The ACCC (now Colleges and Institutes Canada)  withdrew from the proceedings and withdrew its objections in 2013.  

After all of this time, and more than six years after this became an effectively default proceeding, the Board basically relies on the 2012 AUCC model licence and the 2015 Three- Year Premium licence. In the Board’s own words from its Fact Sheet:

The royalty rates in the tariffs are primarily based on two model licences negotiated with the Association of Universities and Colleges Canada (AUCC, now Universities Canada), which formed the basis for agreements that Access Copyright signed with universities – the 2012 AUCC Model Licence, and the 2015 Three-Year AUCC Premium Licence. The Board is satisfied that both agreements are reflective of a functioning market and market price.

I will have more to say about this recent decision in due course.

Meanwhile, back to the future proposed tariff. It would, of course, be useful if the Copyright Board were to post the new round of objections. As I have noted, the Copyright Board has spent $757,548.50 on website stuff since April 1, 2018 with no noticeable improvement to it. Publishing objections would be a very simple, useful and cost-free way to start the improvement process.

However, since this is unlikely to happen any time soon, I will do so here. These are, by their nature, public documents. I have thus far been provided with the following objections:

Athabasca University

CARL

CAUT/CFS

Colleges and Institutes Canada

COPPUL 

Mount Royal University 

Ryerson University

Simon Fraser University

University of Alberta, University of Calgary and University of Lethbridge

Universities Canada Objection

Universities Canada Letter

There may be others, which I’ll be happy to post if and when provided.

HPK

PS - I've just added Ryerson University on December 12, 2019 and Mount Royal University on December 13, 2019

PS - I've added Athabasca and COPPUL on December 18, 2019 and SFU in December 24, 2019

Some Thoughts While the Suspense Builds re Court & Copyright Board’s Rulings re Access Copyright + December 9, 2019 Deadline, My Big Fat Canadian Royalty Cheque and an Alternative Collective Of The Creators, By The Creators, and For The Creators

The deadline of December 9, 2019 is approaching in a few days for filing objections to Access Copyright’s proposed post-secondary tariff for 2021-2023.

Meanwhile, we wait with baited breath for a decision from the Copyright Board on the 9 year + old proposed original post- secondary tariff and a decision from the Federal Court of Appeal in the Access Copyright v. York University case that was heard nine months ago. Whichever side loses that court case is almost certainly going to seek leave to appeal to the Supreme Court of Canada. And if leave is granted, as would likely be the case, there will be potential interveners lined up to ensure that all the necessary arguments are fully, forcefully, and finally addressed on high.

A heads up on the release of Copyright Board decisions has traditionally been announced by email distribution to parties shortly in advance of a late Friday email to interested parties and posting on the Board’s website as a prelude to a Canada Gazette official publication the next day. Another Friday is about to unfold, just before the December 9, 2019 deadline for objecting to the next proposed tariff. Could this be the big moment we have all been awaiting for so many years?

Federal Court of Appeal decisions are usually announced shortly after 9 AM to an email distribution list to which anyone can subscribe (here’s how and a hint to the Copyright Board on how to do this without spending much if anything) and can come any day of the week. There is usually no advance warning, as there is with the Supreme Court of Canada and, very rarely, in the Federal Court. Interestingly, the Access Copyright v. York University case is the only exception I know of in the Federal Court where extraordinary advance warning was given of that extremely controversial decision.  Some aspects of the current situation recall the expectation in 2017 of a key court decision at about the same time as a deadline objection at the Copyright Board – and in the current situation the long overdue decision of the Board itself of a 9 year old proposed tariff. Is this going be in some respects like déjà vu all over again from 2017?

Speaking of Access Copyright and the holiday season, the annual cheques for members recently arrived, as they normally do in time for the holiday.  I am proud to say that I have been a fly on the wall member for several years as a member of Access Copyright and this year my big fat Canadian royalty cheque this year was enough for a nice lunch or so-so dinner for two with so-so wine at a so-so restaurant. I have some anecdotal basis to believe that my “Payback” royalty might even be a bit more than the average or median. But I’m sure not about to quit my day job in the hope of relying on my writing royalties.

The leads to the very serious point that collectives and Copyright Board tariffs are a very poor and inefficient way of rewarding actual creators. They are terrific at rewarding executives of the collectives and some of the lawyers who deal with these collectives’ cases at the Copyright Board and sometimes in the courts and too often do too little or nothing to prevent these cases from going on for many years. Very few individual creator members of any Canadian copyright collective make more in a year from their collective in royalties than even the most junior lawyer on a collective’s outside legal team bills for one hour.

In this context, I was reminded recently about an article I published 20 years ago , which raised some eyebrows and generated some legal opinions, proposing an alternative to Access Copyright – or CanCopy as it was then called, until use by myself and others of the rather irreverent nickname “Can’t Copy” likely helped to prompt a rebranding.

Here’s the Title and Abstract:

Copyright Collectivity in the Canadian Academic Community: An Alternative to the Status Quo?

In this article, the author makes a number of pointed criticisms of the activities and operations of CanCopy, which is the sole copyright collective to represent English-language publishers and authors in Canada. The author notes that professors, graduate students and others, who create large numbers of the publications used in colleges and universities, receive little in the way of compensation from CanCopy. To remedy the situation, it is suggested that academics in English Canada should take steps toward establishing a second reprography collective to compete with CanCopy.

Here's the article – which in many respects is still interesting and potentially applicable today or in the future. At some point, an alternative collective to Access Copyright and other existing collectives may be worthy of consideration. With today’s technology, such a development might be more obvious and practical to implement than it seemed 20 years ago.

Further and in the alternative, as lawyers sometimes say, the possible drama and disruption that hopefully won’t but very well may unfold as the result of the Copyright Board’s and the Federal Court of Appeal’s forthcoming decisions may call for legislation to finally fix some of the existential issues that Access Copyright has brought into focus and may even have created

HPK

Launch of Copyright Board’s New Regime for Publication of Proposed Tariffs & Other Changes: Bigger Budget, 30 Days Less Time to Object, Promises of “An Intuitive Architecture”, & a Twitter Account!

Changes to the Copyright Act were implemented in the omnibus budget Bill C-86 which, by its very nature, had virtually no public scrutiny. The changes regarding the Copyright Board came into effect on April 1, 2019. These amendments were supposedly intended, inter alia, to speed up the process at the Copyright Board for the approval of tariffs. I provided a rather detailed critique of the Bill and the process on November 6, 2018 here. I suggested at the time that the Bill:

Will quite possibly slow down the work of the Copyright Board rather than expedite it and stops well short of establishing hard-wired deadlines to hold hearings or render decisions, which could have been decisively done by regulation long ago

The Government has provided a “Factsheet” dated October 31, 2018 on these Copyright Board reform efforts here that emphasizes earlier filing, longer duration, modernized publication, a shorter objection period, and the promise of a modernized website.  What could possibly go wrong?

Mme Nathalie Théberge, the Vice Chair of the Copyright Board (whose appointment was effective October 1, 2018) spoke about this at the Canadian Bar Association Town Hall meeting of May 30, 2019. I wrote about that event shortly afterwards.  She spoke at some length about how the change to put publication of proposed tariffs in the hands of the Copyright Board and do away with the requirement of publication in the Canada Gazette would save time in the tariff making process.

We can now see the first results of this change. We now have a batch of new proposed tariffs published in late October and early November of 2019 that will now would take effect in 2021 rather than 2020 and be in place for at least three years. This is a change from the previous regime in which tariffs would be filed by March 31 and published in May or June to take effect supposedly at the beginning of the next year, with no requirement for more than a one year minimum but also no impediment, if the collective so wished to a three-year tariff. However, this change will be of little or no significance, since virtually all the Board’s contested tariffs end up being retroactive by several years due to the typical seven years or even more that it takes to get to a decision in such proceedings. Any potential reduction of retroactivity from this change is, at best, speculative and theoretical. The current Access Copyright proposed Post-Secondary tariff is nine years old with no end in sight. It was contested for a time until the major institutional objectors withdrew, leaving their members with big bills and no representation.  It has been effectively uncontested for seven years, except for one curiously persistent individual student who, if he still remains, has had very little, if any, noticeable impact as an objector. Clearly, if the Copyright Board eventually issues a supposedly mandatory and retroactive Post-Secondary tariff of any significant financial or other impact, such as reporting requirements, we could see some very serious disruption in the post-secondary sector and some very serious court challenges.

Indeed, the Supreme Court of Canada has clearly signalled that there may be a jurisdictional issue “concerning the legitimacy of or limits on the Board’s power to issue retroactive decisions.” This important comment in the SCC’s 2015  CBC v. SODRAC decision is present due to my arguments on behalf of Prof. Ariel Katz and McGill’s Centre for Intellectual Property Policy Centre for Intellectual Property Policy  led by Prof. David Lametti, as he then was (he is now the Minister of Justice and Attorney General of Canada).

Under the old regime, the tariffs were published in bilingual format in the Canada Gazette and the Board would put a notice on its website and notify potentially interested parties and counsel by email a day in advance of the official Canada Gazette posting.  True, the Canada Gazette is not exactly the most transparent or convenient place for conveying information. It is a long-standing and running joke in Ottawa that the best way to keep a secret in this town is to have it published in the Canada Gazette. But, to its credit, the Board could and did point to the Canada Gazette in the past. And it would send email alerts to potentially interested stakeholders and counsel (this process now seems to have at least partially broken down). The Canada Gazette folks apparently did their job quite quickly – and in consistent side-by- side bilingual format. The tariffs appeared in the Gazette within two or three months. The Canada Gazette has been online for a very long time. The system worked.

It is not apparent how putting this publication process in the hands of the Copyright Board will accomplish anything positive. Publishing tariffs in unilingual format is not helpful. This is inconsistent with the decades-old practice of the side-by-side bilingual format. Now, English speakers one must go the French version of the website to see the French version of the proposed tariff. Or vice-versa. This is, at the very least, quite inconvenient. It makes side-by side and redline/blackline comparisons with previous proposed tariffs much more tedious and time-consuming.

A serious downside of the new regime is that objections must be filed within 30 days of publication, rather than the decades-old standard of 60 days. This is definitely bad news for users and potential objectors. 30 days is too short a time for those objectors who are new to the process, who wish to organize new coalitions or to retain counsel for the first time, or to change counsel for any reason. 30 days is barely the blink of an eye in the typical timeline of a Copyright Board tariff, which can typically take about seven years or more to get to a decision. And that’s before the usual judicial review.

This shortening of the 60-day time to object to 30 days can only benefit collectives. It will make absolutely no difference overall to the dysfunctionality or culture of delay at the Board. In fairness, this is the fault of whoever devised Bill C-86, which may or may not have included input of the Copyright Board. It is noteworthy that the Board apparently took some considerable interest in the revision of the Copyright Act. Despite having at least four lawyers on staff, it paid:

$274,398 to an entity named Leverage Technologie Resources Inc., whoever they may be, for “Professional service for the amendment of the Copyright Act” during the period of November 14, 2016 to March 31, 2018

The timing and nature of this very large contract invite curiosity.

As to the promised modernized website, the Copyright Board is promising the following:

Although the Copyright Board regularly spends a lot of money on third party contractors for website maintenance, the following recent contracts since April 1, 2018 for “the maintenance, updates and redesign of the Copyright Board's website” and other website work are of particular interest: 

-        $203,400 for April 1, 2018 to March 31, 2019 for “the maintenance, updates and redesign of the Copyright Board's website” and other website work

-        $90.400 to Cision Canada and Développement Axial for April 2017 to March 31, 2018 “for the maintenance and updates of the Copyright Board's website”

-        $158,200 for April 1, 2018 to March 31, 2019 to Développement Axial  “for professional services for the maintenance, updates and redesign of the Copyright Board's website.”

-        $45,200 for April 1, 2018 to March 31, 2019 to Cision Canada for the maintenance and updates of the Copyright Board's website

-        $27,402.50 for December 19, 2019 to March 31, 2020 to Lexum informatique “… to improve and broaden access to the Board’s decision on its website”

-        $187,746 to Développement Axial for March 5, 2019 to March 31, 2020 for “…for professional services for the maintenance and updates of the Copyright Board's website”

-        $45,200 to Développement Axial for 2019-11-07 to 2020-03-31 “…is for professional services for the maintenance and updates of the Copyright Board's website”

That’s $757,548.50 on website stuff since April 1, 2018. I regularly look at the Board’s website and I cannot yet discern any noticeable improvement following these several large recent expenditures.

Sorry if I missed anything or counted twice. I am not an auditor. I welcome any necessary corrections. It  must be said that Board’s website, apart from its chronically dysfunctional search utility, has been reasonably useful in the past, given the very limited amount of information that the Board has chosen to make available. The search utility has been dysfunctional for years despite large third-party website expenditures over the years. Thankfully, good old reliable and simple Google searches will do the job for most purposes.

It is not obvious why “an intuitive architecture and an improved navigation system” will be helpful if essential content is not there to begin with. Guidance in all respects can be found at the excellent Competition Tribunal site. BTW the Competition Tribunal has about a 30% smaller budget than the Board, about half the staff,  and a much better website that importantly includes documents filed in its numerous cases – many more than the Copyright Board deals with. It even provides the email address of its Webmaster. Indeed, the Board’s site is becoming, if anything, less rather than more useful. The Board has now removed access to the names and contact information for its working staff except for its Secretary General and the receptionist’s phone number. As I have indicated before, the Board’s staff – both professional and administrative – have always been extremely courteous and helpful. The Board clearly, however, apparently now wants to limit transparent and unfiltered access to them. In the small world of people who actually may need to interact with the Copyright Board, that is hardly helpful.

It is especially difficult to see what possible use a Copyright Board Twitter account could be. Twitter is essentially useless as a primary tool for making announcements, unless the issue is very immediate and important and of interest to a lot of people who spend a lot of time on Twitter and would follow the Board’s account and retweet something of interest.

True, the Federal Courts and the SCC have twitter accounts. But they have lots of things to announce on a nearly daily and sometimes even more than daily basis and Twitter is by no means their primary way of reaching their audience, which is through email subscription and distribution – see below. They have vastly more to announce and vastly larger audiences than the Copyright Board. See:

https://twitter.com/FedCourt_CAN_en   (~1074 followers)

https://twitter.com/FedCourtApp_en  (~2,128 followers)

https://twitter.com/SCC_eng  (~27.4 K followers)

It is highly unlikely that the Copyright Board would ever have more than a few dozen Twitter followers. I’ll volunteer to be among the first. Twitter can be useful for feedback, but that is something that the Board has shown to be of no interest to it –  indeed quite the contrary,  even when it has uncharacteristically actually asked for comments.  In any case, as a quasi-judicial tribunal, it should not be interested in review by the court of public opinion. The Board already spends tens of thousands a year on “newspaper clippings and reports services” for whatever reason (BTW, Google Alerts, which is free, works very well. Michael Geist and I are about the only regular commentators on the Copyright Board. There’s no need to spend tens of thousands a year for follow our comments). Mme Théberge spent a lot of time talking about the Board’s proposed Twitter account at the above Town Hall meeting.  It is astonishing that Board has spent so much time and quite possibly money on this Twitter idea. So far, the only visible result is that is has set up a Twitter handle – which is trivially simple to do – but it is so far inactive. See @COP_eng above. Don’t forget to sign on to the “pending” button so you can be included once it is active.

The Government’s Factsheet promises:

Modernized website: Additional resources earmarked in Budget 2018 will enable the Board to revitalize its website to more clearly convey to Canadians information about their ongoing operations as well as proceedings. It will also allow Canadians and interested parties to subscribe to receive relevant information, such as rulings, when they want it.
(highlight added)

Why this should require any expenditure of public funds is inexplicable. A simple email subscription and notification mechanism, as is used by the Federal Courts, the Competition Tribunal and the Supreme Court of Canada and even as available on my humble freeware blog page, would do this job. For example, this is how it works with the Competition Tribunal through a link available on the main page. Cost of operating such email subscription and notification is zero. It would require no time whatsoever on the part the Board’s staff once it is properly set up – which is extremely simple. Special announcements may require a few minutes of someone’s time to post to those who are on the email subscription list. This would be guaranteed to reach the right audience immediately – which is absolutely not the case with Twitter. That fact that the Board hasn’t provided this absolutely basic common place tool on its front-page years ago, especially given its large third part expenditures on website maintenance over the years, is simply inexplicable.

The Competition Tribunal appears to have its own webmaster, i.e. webmaster@ct-tc.gc.ca. With its much larger staff, it would seem logical for the Copyright Board to have someone on staff to update the website in the normal course, especially since so little ever needs to be added on so few occasions.

By way of another example, here’s how easy it is to subscribe to the Federal Court’s email alert system – which sends out notifications of new cases every morning and sometimes bulletins when something really interesting or important happens:

For whatever reason, the Copyright Board’s decisions – unlike many other federal tribunals including the Competition Bureau, are NOT available on Canlii, which is free and friendly and has excellent search and sorting utilities, not to mention links to updates and consideration by other courts, etc.  For example, here is how the Competition Tribunal appears in its special section on Canlii – with Continuous coverage of cases from 1990-01-01 to present (some 754 decisions). Of course, all of this is available through the main page of Canlii as well.

In any case, every competent Canadian IP lawyer presumably knows that daily free customized updates are available from Alan Macek’s exemplary, indispensable,  and amazing free IPPractice.ca service, which has now been modified to track the Board’s slightly altered website to enable same day alerts to new proposed tariffs for those wishing to receive them.

Another thing that the Copyright Board could easily do to increase transparency and accessibility, which would involve virtually no cost other than one or two overhead cameras, an initial routine setup, and some minimal training for an employee, is to webcast its hearings. It already has a very fancy hearing room with sophisticated audio. This would require little if any human involvement if properly set up and, of course, it’s simple to stop the feed if confidential stuff is being discussed (which rarely happens or needs to happen during hearings). The Federal Court is now webcasting some hearings and the Supreme Court of Canada has been doing so live and with archives for years. Many universities regularly post live and archived webcasts of interesting events. Even WIPO is getting into this technology. It is hardly rocket science.

It seems that the Board is trying very hard to find ways to spend the additional $1,000,000 a year it has been allocated for its budget. Hiring more lawyers and economists is not the answer and many not only slow things down but create problems based upon the principle that he/she/they who hears must decide and that the Board cannot make decisions based upon its own undisclosed and untested research.  This decision-making process cannot be delegated, and Board members are presumed to have expertise. The Board is already arguably very generously staffed in terms of lawyers and economists compared to other federal courts and tribunals that have much greater case loads. It has even announced a prize for a paper by a graduate student in economics on copyright economics:

This prize will recognize the best article on the economic dimensions of copyright and will include $ 2,000 in addition to a paid work term of one year within the Board’s Economic Analysis Team.

Once again, and as always in the spirit of tough love, I cannot find much reason for optimism at this time for solutions to the problems identified three years ago by Senate BANC Committee, which  called for “thorough, in-depth examination of the Copyright Board of Canada’s mandate, practices and resources.” The Board does have an extra million dollars a year, but apart from that, there is no sign of any systemic change. In fact, as noted, some things may have even gotten worse rather than better. A prettier website and a Twitter account will do absolutely nothing to change the culture of delay.

As I noted recently:

The Board is not visibly busy in any obvious sense. It has held no oral hearings in more than two years and none are scheduled until September of 2020 when three hearings on relatively minor matters are set to unfold in late 2020. Hopefully, the Board will use this downtime to work towards reinventing itself and not just tinkering with procedural details that won’t make any material difference.

Let us hope that @NavdeepSBains Minister of  @ISDED_CA or whatever its new name will be, gets a grip on this increasingly “dysfunctional” situation, to use the Senate Committee’s own term. The first order of business for Minister Bains should be scrap the problematic and predictably ineffectual regulations proposed by officials with no Copyright Board or other related experience earlier this year that were put on the shelf because of the election and to impose, instead, a fixed timeline as we have with the Patented Medicines Notice of Compliance (“PMNOC”) proceedings as I have suggested here. 

HPK

Teksavvy Fights Back Against GoldTV Website Blocking Order – Interveners: Start Your Engines

The Federal Court has recently issued a website blocking order that is without precedent in Canada. Similar orders in other jurisdictions have been based upon explicit legislation.  There is no explicit basis in Canada’s Copyright Act for this order. Here’s the decision: Bell Media Inc. v. GoldTV.Biz, 2019 FC 1432 (CanLII), <http://canlii.ca/t/j3frl>

Regardless of whether or not there is any reason to sympathize with GoldTV, which for whatever reason was not represented at this and the lead-up hearings, the main issue is whether the Federal Court has the necessary jurisdiction under the Copyright Act to block its websites. At stake are not only jurisdictional issues but freedom of expression, net neutrality, CRTC regulation, extra-territoriality and other rather profound matters.

Here’s the Notice of Appeal from Teksavvy, which deserves to be commended for taking on this this manifestly David v. Goliath fight. Here’s the Court’s docket. Here’s a good take on the appeal from MobileSyrup.

Needless to say, Bell and Rogers, which are both major content owners and ISP giants, are in the interesting position of effectively suing themselves and asking the Federal Court to approve their proposed remedy that would implicate other independent and much smaller ISPs such as Teksavvy and millions of Canadian internet users.

If website blocking is a needed solution to a serious problem, then one would expect explicit and very carefully constructed legislation based upon extensive review and consultation. Other common law jurisdictions where the courts have blocked websites have enacted enabling legislation that merits study. In Canada, it is clearly the role of Parliament to devise and implement copyright legislation. 

The job of our courts is to interpret and apply such legislation – not to effectively amend and extend the law to fill in perceived inadequacies.

There could and should be many potential interveners in this appeal. While leave to intervene is required in the Federal Court of Appeal and seems to be more difficult to obtain these days than in the Supreme Court of Canada, that should not stop potential interest. Interveners, start your engines.

HPK

Voltage v. Salna + ~55,000 - Costs Implications of Dismissal of Reverse Class Action Certification Motion

It will be recalled the Federal Court recently decisively dismissed Voltage’s attempt to certify a controversial “reverse class action”, in which three individuals would have presumably been forced to respond and defend a class of about 55,000 alleged infringers – each of whom might have had a different story to tell and each of whom could have opted out and none of whom could even conceivably have been on the hook for more than $5k and none of whom would have even know about this proceeding at this time.

The main lead class defendant would have been Mr. Robert Salna – who is a landlord. A couple of his tenants also got pulled in and named as proposed respondents.

The Court has curiously and rather inexplicably declined to let Mr. Salna have the $75,000 security for costs that was paid into Court due to the “exceptional circumstances” and which required a trip to the Federal Court of Appeal, in which Salna succeeded. The Court, per Justice Boswell, has simply said that:

[ 167] The $75,000 posted as security for costs will not be released at this time given Voltage's stated intention to pursue the application regardless of whether it is certified.

Not surprisingly, Mr. Salna is appealing this aspect of Justice Boswell’s ruling. Mr. Salna is also asking for solicitor and client costs, which could conceivably be even more than $75,000 for this unusual, complex and unprecedented motion in the Federal Court. Here is Mr. Salna’s Notice of Appeal.

CIPPIC played an important role in this proceeding as an intervener but did not seek costs.

It remains to be seen whether Voltage will attempt to appeal the dismissal of the certification motion.

HPK

PS January 17, 2020: For anyone following the appeals, both sides are appealing. There's been a bit of a procedural snafu, Here is the Direction of Rennie, JA dated January 17, 2020 along with a lesson in the Federal Courts Rules, which will hopefully straighten this all out.

Did a UK Judge Just "Break the Internet"? Stay Tuned re the TuneIn Decision

Here is a very long, complex and potentially very important judgement from the UK in Warner v. TuneIn  rendered on November 1, 2019. It is a must read for all copyright lawyers and professors.

Paragraph 1 sets the tone:

The relationship between copyright and the internet is not always an easy one. This case is another example of that tension. It is a test case about infringement of copyright in sound recordings under section 20 of the Copyright, Designs and Patents Act 1988. Section 20 provides for the communication right in UK law. A balance has to be struck between the interests of the copyright owner in protecting its exclusive rights, and the interests of the public in freedom of access to the internet. The claimants say that a finding for the defendant will fatally undermine copyright. The defendant says that a finding for the claimants will break the internet. (highlight added)

 Basically, TuneIn is a very sophisticated web site that allows anyone anywhere to “tune in” into more than 100,000 radio stations around the word. Most of them, of course, have licenses in the country where the station is located. But few of them have UK licenses. TuneIn is basically like a magic antenna that links to radio stations everywhere in the world with a lot of useful search and other built in utility. It has ads and a premium version with additional features. Does that sound familiar? It has more than 75 million regular users around the world according to Wikipedia.

Before he gets to whether TuneIn is infringing, Justice Birss of the UK High Court Chancery Division correctly confronts the question of whether TuneIn is “targeting” UK users:

12. The internet is international. Users accessing the world wide web from the UK can gain access to websites all over the world. This is routine. However unlike the internet, intellectual property rights are territorial. In what circumstances therefore does an act undertaken on the internet engage the laws, in particular the intellectual property laws, of a given state? The clear answer to that question is that for the rights in an EU member state to be engaged (at least as far as trade marks and copyright are concerned) the act must be targeted at the public in that member state…

He finds that indicia of targeting include the use of the language and currency and ads aimed at individual user’s interests and many other factors including “bespoke advertising aimed at the UK.” However, that is how the internet works. Surely targeting should entail some selective geographical focus – at least for IP enforcement purposes? If everyone and every country everywhere is targeted, can anyone and any country be said to be targeted?

Apparently, the answer is yes. Justice Birss states:

32. The fact that when an internet radio station is indexed by TuneIn and added to its database there is no decision by TuneIn to target the UK with such a stream is irrelevant. Even if the internet radio station actually provided to a UK user was an obscure station from a country on the other side of the world in a language the user did not understand, in which one would not a priori think a UK user would be interested, that is irrelevant. When it is presented to a UK user by TuneIn, from the UK user's perspective it is targeted at them.

Basically, Mr. Justice Birss says that:

      -       TuneIn is “targeting” UK users and is liable for communication;
-        Individual users who use the “record” function are liable for copying;
-        Providers of stations other than those licensed in UK are liable;
-        TuneIn is liable for “authorisation” (somewhat like but not the same as “contributory infringement” in USA) and as a “joint tortfeasor”;
-        TuneIn cannot rely on safe harbour provisions; and,
-        TuneIn can only legally link to and stream stations that are already licensed in the UK.

There is a lot of discussion of Svensson, GS Media and other EU law that is not directly relevant to Canada – and many references to the “making available” provisions of EU law.

BTW, this judgement was rendered by Mr. Justice Colin Birss, notwithstanding that he didn’t hear the case. The case had been heard by the late Mr. Justice Henry Carr who tragically died before rendering judgment. The parties agreed that they didn’t need to have a new hearing and relied on the record and two days of further oral submissions.

Mr. Justice Birss first came to prominence on the IP scene back in 2012 with his very controversial Red Bus decision, which I discussed here. That decision was rather amusing and arguably rather wrong – but it was the equivalent of a small claims court decision, it had no precedential value, it didn’t break the internet and Justice Birss was soon elevated to the High Court Chancery Division and, as is customary, knighted as Sir Colin Birss.

Can this TuneIn decision break the internet?  With all due respect, quite possibly yes. If not “break”, it may still have the potential to at least cripple it badly.

If TuneIn is viewed as a very sophisticated and specialized search engine that targets ads and is otherwise attuned to its users around the world (a perspective that Justice Birss acknowledges), does that remind anyone of other popular sites, such as, for example, YouTube? Does YouTube have UK licenses for all the music and sound recordings and videos that UK users can access? If this decision works its way into EU law, what about the other countries in the EU? If this decision somehow takes hold outside the UK and EU, what about the other 180 or so members of the WTO?

Above all, it must be remembered that the vast majority if not virtually all of the radio stations accessible via TuneIn are licensed in their home territory. If their ad revenues increase because of their inclusion in TuneIn, their royalty obligations in their home country would presumably increase – certainly so in the case of Canada.

It also appears that radio station providers can exercise some control over whether and how their signals can be accessed via TuneIn – i.e. BBC has apparently blocked UK users from accessing its signal via TuneIn but not other TuneIn users elsewhere.

It is unthinkable that the provider of every radio station that can be accessed though this magic smart antenna called TuneIn should have to be licensed now in the UK – but that seems to be the potential implication.

In Canada, meanwhile, we await the judgment of the Federal Court of Appeal on what “making available” means in this country and in a different context. We also have the Supreme Court’s decision in Crookes v. Newton that indicates that merely linking is not enough to create liability for the content. That was a defamation case but has been generally regarded as applicable to copyright. On the other hand, we have the very problematic result of the Supreme Court of Canada’ decision in Google v. Equustek that, following a frankly baffling argument by Google, imposed upon Google the world wide obligation to take down links to material that allegedly infringed local, unregistered and unproven IP rights.

So – what is potentially at stake is whether there can truly be a “world wide web” (remember that increasingly quaint and anachronistic term) or whether there will be about 180 little geo-blocked territories, each with their own rights clearance regime? Could there be a central efficient automatic system? One can bet that Google and maybe others are thinking about it….

In the meantime, there could be much friction and uncertainty.

There has not yet been a lot of comment on this TuneIn decision – perhaps because it is so recent, long and complex. But, if you will pardon the pun, just stay tuned in.

HPK