The Copyright Board’s Access Copyright Post Secondary Decision: The Incorrect Correction

(Federal Court of Appeal)

In the very fraught file concerning Access Copyright’s quest for a post-secondary tariff, the Copyright Board issued a decision on December 6, 2019 and certified a tariff dated December 7, 2019. The tariff application was almost a decade old. It had been almost 4 years since an effectively uncontested hearing had taken place in January of 2016. As I’ve indicated, the timing was nothing if not interesting and, for whatever reasons, there has been no attempt at judicial review. That may be in part because the Board explicitly took no position on whether the tariff is “mandatory” and that question, as everyone knows, is pending in the Federal Court of Appeal and may be headed once again to the Supreme Court of Canada, which will presumably, if necessary, confirm that it said what it meant and meant what it said in 2015 about tariffs not being mandatory for users in the CBC v SODRAC case argued  by yours truly on behalf of Prof. Katz and Prof. David Lametti as he then was, and his CIPP institute at McGill.

The Board’s certified tariff dated December 7, 2019 contained a serious arithmetical error that would have doubled the tariff, which the Board corrected on December 28, 2019.

However, the Board’s decision of December 6, 2019 contained other errors that the Board has attempted to correct by means of an email – NOT a formal notice – on Wednesday, February 12, 2020. Essentially:

1. The Board mistakenly referred to the Federal Court rather than the Federal Court of Appeal. This is very embarrassing for whoever drafted the decision and whoever was responsible for proof-reading it. The Board has a very large staff considering its very limited caseload. This staff includes five lawyers and an articling student. It has been about three decades since the Federal Court, in contrast to the Federal Court of Appeal, has been involved in any review of Copyright Board matters. Even first year law students quickly learn the difference between the Federal Court and the Federal Court of Appeal. Surely everyone at the Board knows the difference. That makes it even more astonishing that this error wasn’t caught.
2. More seriously, the Board had erroneously referred in its December 6, 2019 decision to a non-existent attempt by Prof. Ariel Katz to ask the Federal Court of Appeal to review the Board’s refusal of his request for a reference to the Federal Court of Appeal on a question of law. That was not only false and misleading. It cast Prof. Katz in a less than flattering light and showed the Board’s lack of familiarity with an important milestone in this long and still very much unresolved file.
3. The Board has confessed to the first error – but notably ignores the second and far more serious one in its emailed notice.

These errors involve none other than Prof. Katz, who provides full details of all of this on his blog entitled Oops, the Board did it again, and again, and again,  along with details of the more serious substantive error of the Board in completely ignoring in its decision the important evidence that Prof. Katz had duly provided to the Board on the crucial issue of Access Copyright’s repertoire – and notable lack thereof.

The Copyright Board apparently doesn’t even deem it necessary to indicate that the decision has now been corrected and revised. To date, there has to date been no official “Notice” on the Board’s website. The failure of the Board to deal adequately with these errors has now resulted in the existence and likely persistence of two “official” versions of this decision, one of which contains on its face a rather significant error that the Board has not even acknowledged and apparently doesn’t wish to acknowledge.

HPK

Two New Mass Copyright Lawsuits – Rambo: Last Blood & Angel Has Fallen

Here two more mass copyright lawsuits involving films in Canada:

• Action T-196-20 involves RAMBO: LAST BLOOD. There are 1,218 John Doe defendants.
• Action T-198-20 involves ANGEL HAS FALLEN. There are 2,130 John Doe defendants.

Both actions are from the usual law firm – Aird and Berlis, LLP.

Presumably, “Norwich Orders” will be sought in both cases for the internet service providers (“ISPs”) to disclose the actual names and addresses behind the IP addresses.

It will be interesting to see if any of the ISPs will step up to the plate to determine if the Norwich Orders are indeed justified and, if appropriate, to stand up for the privacy interests and rights of their subscribers.

HPK

Update on Allarco Litigation – Allarco’s Potential Exit Costs in the Federal Court

As I wrote earlier on January 29, 2020,  Allarco is liable to pay costs arising from its discontinuance of its “unusual” (as I described it) Federal Court action. Moreover, Allarco is liable to pay costs of the lengthy motion hearing of January 23, 2020 supported by a reportedly very large amount of documentation in which is sought unsuccessfully to punt on the Federal Court costs issue and kick it over to Alberta or, alternatively. to adjourn or stay the costs matter and a “laundry list” of other requests for relief. As the Case Management Judge Furlanetto noted in an unusually blunt order dated January 27, 2020:

The evidence that the Plaintiff filed on the adjournment motion was lengthy and included five affidavits, including two from experts, the vast majority of which was not relevant to the requested adjournment and related to issues involving the merits of the proceeding. None of the affidavits were previously filed in the proceeding, although one asserted it was in support of a motion for interlocutory injunction, which had never been brought in the proceeding and was not pending before the Court.

As I noted, Allarco has discontinued its Federal Court action and started a new one – including an application for an interlocutory injunction – in the Alberta Court of Queen’s Bench. This is presumably because the Alberta court in theory has a wider jurisdiction to rule on some of the more unusual claims being advanced, such as conspiracy, intentional interference, etc.

Pursuant to the Order of the Case Management Judge, the “4Stores” retailers (as they are being called), have submitted material on February 3, 2020 to substantiate their costs demands. Here is my summary of the bottom line of the amounts they are seeking:

Allarco adjournment etc. motion heard January 23, 2020 – costs sought by 4Stores:                       $74,123.70
Costs following discontinuance sought by 4Stores:	$453,033.03
Total Costs sought by 4Stores in Federal Court as of February 3, 2020:	$527,156.73

Here is the 4Stores complete submission as filed in the Federal Court on February 3, 2020.

Allarco will have until February 13, 2020 to respond and the 4Stores will have until February 18, 2020 to reply.  The Court indicated that “The Defendants’ motion for costs shall thereafter be dealt with based on the written record filed. Should the parties be of the view that additional oral submissions are needed, such request shall be dealt with through case management.”

This is an unusually large amount of costs being sought upon discontinuance at such an early stage of litigation in the Federal Court. That said, this is very “unusual” litigation and the proceedings to date have been very unusual. All the parties are sophisticated, and all the counsel are experienced. So, this is bound to be interesting and potentially important.

I’ll update as soon as I have further useful information.

HPK

PS - May 14, 2020

Here's the Federal Court Docket entry  from May 13, 2020.

Order dated 13-MAY-2020 rendered by Angela Furlanetto, Prothonotary Matter considered without personal appearance The Court's decision is with regard to Motion Doc. No. 19 Result: 1) Defendant Staples Canada awarded costs of $19,700.28; 2) defendant Best Buy Canada awarded costs of $19,978.50; 3)defendant Canada COmputers awarded costs of $2,066.93; 4) defendant London Drugs awarded costs of $17,671.16; 5) Costs shall be paid by plaintiff within 60 days of end of suspension period under 29-APR-2020 Practice Direction (re: Covid-19). Filed on 13-MAY-2020 copies sent to parties entered in J. & O. Book, volume 1453 page(s) 386 - 402 Interlocutory Decision

That's a total of $59,416.87‬ - much less than the total amount sought. I am trying to determine whether there's still more to come and to obtain any written reasons that the Court may have provided. This is not easy at this time due to COVID.

PPS - May 20, 2020

Here's the Court's Order of May 13, 2020 regarding costs.