Thursday, September 24, 2020

The Outpost - Mass Copyright Litigation



Another instalment in the mass litigation litany from the Aird and Berlis firm has now been released involving The Outpost - a 2020 picture.

There are 841 "Doe" defendants. See attached Statement of Claim.


Wednesday, September 23, 2020

Access Copyright v. York University - Update on Supreme Court - Replies Have Been Filed


Here's Access Copyright's Reply.

Here's York's Reply. 

The materials were submitted to the Judges on September 14, 2020,

We will learn sooner or later whether leave has been granted to either or both sides.

Meanwhile, potential interveners should be watching.


Friday, September 04, 2020

Access Copyright and York U File Responses in SCC

(Canadian Encyclopedia)

Here's Access Copyright's Response to York's Leave to Appeal Application.

Here's York U's Response to Access Copyright's Leave to Appeal Application.


Thursday, September 03, 2020

The Copyright Board’s New $757,548.50 (+?) Website – Finally an Apparently Functional Search Engine – but Otherwise Disappointing at Best and Problematic at Worst – And Still NO CANLII Presence


The Copyright Board finally announced its “new” website yesterday, September 2, 2020:

The Copyright Board welcomes you to its new website! This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information and products in both official languages, as required by the Official Languages Act.

One major innovation on the website is the incorporation of Decisia (by Lexum). This platform allows users to have access to the resources made available by the Board, such as documents, decisions, approved tariffs, licences for the unlocatable copyright owners regime, and much more. Discover it here. Additionally, users can subscribe to Decisia's mailing list and receive weekly updates on the publication of new documents. This innovation supports the Copyright Board’s broad objective toward ensuring greater transparency and access to justice for all Canadians.

It apparently has cost at least $757,548.50 that we know about. Some quick next day comments:

For those who had laboured to become familiar with the previous website, some things – such as Notices & Rulings – have inexplicably disappeared from plain sight and can only be found through the thankfully finally apparently functional Search facility – which has been needlessly non-functional for as long as I can remember. The Notices and Rulings are still not up to date after December, 2019.

Apart from a new look, there is apparently little new useful information or other  evidence to substantiate that this “This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information…”

There is a somewhat useful page for “Ongoing Cases” – which presents a bit more conveniently the same information that what was already there and not very hard  to find. There is also a listing of “Filed Agreements  – though only for 2017 on – which are presumably available upon request though “Agreements will continue to be screened before access for the purposes of the Privacy Act.”

There are lot of apparently new entries in the FAQ section. Some are misleading to users and maybe even dangerously deferential to collectives. An unnecessary enquiry to a collective can put someone on that collective’s radar and needlessly at risk. And few if any collectives have comprehensive and reliable information online about their actual repertoire. In the case of Access Copyright, it’s something of a joke. As I’ve pointed out several times, it is happy to sell you a license to ancient public domain editions of Charles Dickens Christmas Carol. More on this FAQ stuff later. Frankly, the Copyright Board has no mandate to provide legal or even vaguely general copyright advice to the public and should not be using its resources to do so. To the extent that such information is accurate, appropriate, useful, and warrants government resources,  it should be provided by CIPO.

One notably non-responsive and even evasive FAQ response to the utmost important and most often asked question of How Long It Takes the Copyright Board to Render its Tariff Decisions is this:

The Copyright Act provides that "cases before the Board are heard expeditiously and without formality".

The complexity and level of preparation of the file submitted may influence the time taken by the Board to examine the application as well as the time taken to deliberate leading to a decision, for example, if the file is incomplete.

The number of stakeholders can also indirectly influence the duration of the process, since this increases the possibility of having an objection to the proposed tariff; or if there is objection, since the objectors must present their arguments in writing. Once the objectors' files are considered complete and have been presented, the Board enters into deliberation. Its decision is made public when it approves the tariff and publishes it in the Canada Gazette.

The fact is that it can take the Board almost ten years to retroactively approve an effectively uncontested tariff in circumstances that make the result inconclusive, e.g. the Access Copyright Post-Secondary tariff, which I wrote about here on January 22, 2020. Not surprisingly, the key links I provided don’t work any more.

Indeed, a lot of old links unfortunately no longer work – for example the links I reported on the $757,548.50 budget allocated to the new website as of November of 2019. See here. The information is still there on the Board’s website  – but the old links don’t work any more.

The search engine appears to functional back to 1990 – though I haven’t fully tested it yet.

However, the overwhelming problem that remains is this:

The Board’s Reasons of Decision and Tariffs are NOT available on CANLII, where a simple one stop search would produce results – for example for “making available” – that would include BOTH Copyright Board and Court decisions. CANLII searches can be fine tuned using the “advanced” tools.

I have looked into this CANLII issue very carefully and received very knowledgeable information. There is no reason why the Board’s decisions and tariffs is couldn’t have been made available on CANLII at no cost many years ago. There is no reason why this should not immediately happen going forward with coverage since at least 1990. There is no need for any additional cost to taxpayers.

Other comparable tribunals that are on CANLII include:

  •        The Trademarks Opposition Board
  •        Commissioner of Patents
  •        The Competition Tribunal


I have tried but been unable to get any  direct answer from the Board about the inexplicable and conspicuous absence of its decisions on CANLII.

The Board’s adoption of the background engine DECISIA – which can be used for better (e.g. for better at the SCC and apparently for worse at the Competition Tribunal) can allow for  feeding of cases to CANLII – but this is not and never has been a necessary aspect of such utility – which is an essential component of access to justice.

So – the bottom line for now is that we have a website with a new look but few new useful aspects – except for a finally apparently functional search engine, which I will test further later. That could and should have been fixed at no cost many years ago. The Board has regularly spend a very large amount for many years on outside sources for its website with a non-functional search function. Indeed, my own blog has a fully functional search function and a daily – not weekly - email update feature and my software costs nothing. It’s not easy to see how or why the Copyright Board’s “new” website  has cost taxpayers at least the  $757,548.50 that we know about.

It would appear that older snapshots of the Board’s website are available on the marvellous Wayback Machine at .

If anyone sees any positive or negative aspects I may have missed in this next day quick review, please comment below – which you can do anonymously if you wish – or email me privately.

And, BTW, the position of Chair of the Board remains vacant. That is a serious issue and we really need to have a top notch sitting, supernumerary or retired judge –  preferably from the Federal Court or the Federal Court of Appeal and with no ties to vested interests. And someone who is willing take on the challenge, wherever it may lead, of ensuring that better decisions are rendered in a time frame consistent with other Canadian courts and tribunals.