Tuesday, August 23, 2022

There is No New “Making Available” Right: The Copyright Board Got It Wrong

 


On July 15, 2022 the Supreme Court of Canada (“SCC”) rendered a lengthy, nuanced and very important judgment  in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 (CanLII), <https://canlii.ca/t/jqgw0>.

Objectively, the decision affirmed that:

1)     There is no new “making available right" as such resulting from the 2012 amendments to the Copyright Act. The new definition added as s. 2.4(1.1) merely clarified the meaning of the existing right under s. 3(1)(f) to “communicate to the public by telecommunication”, and did not create a standalone new right or a justification for stacking on an additional tariff.

2)     SOCAN was not entitled to stack a new royalty on top of existing tariffs simply by virtue of a user making a work available for streaming or download. Such activity is already covered by existing rights and tariffs, and the 2012 amendment clarifying the definition of “communication of a work or other subject matter” in s. 2.4(1.1) doesn’t create new liability.

3)     The “definition” provisions in s. 2 of the Copyright Act do not add new rights. The rights of owners of “works” are found in the first paragraph of s. 3(1). As ably stated by ESA, “These rights are the right to reproduce, perform, and publish the work or any substantial part thereof.” The “making available” provision, however, is not contained in this rights-granting section but rather in definition section 2.4(1.1).

4)     The Court once again affirmed the importance and centrality of the doctrine of technological neutrality to applying the Copyright Act.

5)     The Court once again affirmed the principle of balance in copyright law:

   “[5] I cannot agree with the Board’s interpretation of s. 2.4(1.1). The Copyright Act does not exist solely for the benefit of authors. Its overarching purpose is to balance authors’ and users’ rights by securing just rewards for authors while facilitating public access to works. When this balance is achieved, society is enriched. Authors are encouraged to produce more works, and users gain access to works which they can use to inspire their own original artistic and intellectual creations.”

6)     The Court once again affirmed the rule that one activity (here, streaming or downloading) can only give rise to one royalty payment, and that payment of two royalties for the same activity is prohibited.

7)     The domestic legislation is what is determinative – not the treaty. Without being as blunt and even apparently sarcastic as Justice Statas was in the Federal Court of Appeal when he  he referred to “the vibe” of international law, the SCC affirmed Justice Statas’ general approach to use of international law to interpret domestic statutes.  

8)     The Copyright Board was wrong – i.e. not “correct” - in its interpretation of the 2012 legislation. The Copyright Board will be held to the “correctness” standard of review when it comes to interpreting the Copyright Act because it shares concurrent first instance jurisdiction with the Superior Courts. The Board will be given no deference for being “reasonable” in its interpretation of the substantive provisions of Copyright Act. It must be correct. Importantly, this is the first new category of correctness review since the landmark Vavilov decision. Two of the judges disagreed and would have applied the more deferential “reasonableness” standard. That said, they found that the Board’s decision was unreasonable in this case.

9) Justice Rowe states and reiterates that “If a work is made available for downloading, the author’s right to authorize reproductions is engaged.” (paras. 8, 108). Moreover, the meaning of “authorize” has been considered in greater depth in a number of prior SCC decisions. It will be interesting to see whether future courts look more to ESA or to earlier cases like CCH when confronted with this issue.

10) Finally, this decision may or may not have some potential application to infringement cases, given the closing comment from Justice Rowe:

 [113]  Before concluding, I would note that the value of these rights is not in issue in this appeal. Setting the appropriate royalties to compensate authors when these rights are engaged is a matter for the Board to decide. Similarly, the considerations that a court might have regard to in assessing monetary remedies for infringement is a matter to be decided if and when such a case arises. 

More subjectively:

 1)     To put it bluntly, when the Copyright Board strays out of its permitted and mandated narrow lane of rate-setting (see Prof. Katz’s factum on this point)  and presumes to interpret the substantive provisions of the Copyright Act – much less international law – it had better be “correct” and just not merely “reasonable”. While the SCC recognizes that there can be many “reasonable” outcomes, there is normally only one “correct” outcome.  This clarifies a residual issue from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653, <https://canlii.ca/t/j46kb> concerning the standard of review for the Copyright Board. This is bound to upset the Copyright Board, following less than a year after the SCC declared that Copyright Board tariffs are not mandatory for unwilling users in the York v. Access Copyright decision, which I wrote about herePer Abella, J:

 [39]     As matter of legislative coherence, it would be incongruous if royalties fixed in the context of licence negotiations between a collective society and a specific user were voluntary, but those set in a general tariff were mandatory. https://www.canlii.org/en/ca/scc/doc/2021/2021scc32/2021scc32.html

2)     This clearly very expensive and lengthy detour could have been avoided if the Board had not called for extensive submissions on the implications of the WIPO treaties – which numerous well-resourced parties went along with resulting in a pantheon of experts’ opinions. All of this could and should have been avoided if the Board had simply allowed or denied SOCAN’s submissions on the basis of the Canadian Copyright Act, the 1996 WIPO treaties, and existing authorities on the subject. Then, the FCA could have resolved the issue on judicial review. Canada does not need a panoply of “experts” to read a domestic statute, and if appropriate, an international treaty and published commentary on it. We don’t need a monumentally expensive, dilatory and gratuitous display of the “the vibe” of international and treaty law in what should have been a rate setting exercise. The Board’s decision to proceed the way it did could potentially have set a dreadful precedent in terms of access to justice in situations wherein objectors do not have the resources that were available in this instance.

3)     Ironically, after recognizing that a freestanding “making available right” existed, the Board nonetheless refused to value the making-available tariff because ‘the evidence before it was inadequate to warrant the setting of a tariff for ‘making available’’. This was upheld as “reasonable” in the companion decision of the FCA. CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101 (CanLII), <https://canlii.ca/t/j82gf>. Arguably, that should have been the end of the matter for the Board, especially since the Board recognized more than a decade earlier in another proceeding for a SOCAN tariff on “other sites”  that “in the absence of proper and reliable evidence, it would be irresponsible to certify a tariff that could potentially have such a broad scope of application” and this was upheld by the FCA, in a decision in which I played a leading advocacy role.
Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2010 FCA 139 (CanLII), <
https://canlii.ca/t/29z9n>, which Justice Stratas cited in 202 FCA 101.

4)     Interestingly, the issues of royalty stacking and the effort to twist or elevate definitions into new rights has a long history:

a)     The monumental Report of Judge Parker from 1935 outlined the concerns with the attempts by the predecessors of SOCAN to impose “additional” costs on motion picture exhibitors as a result of the new technology of the day – namely “talking pictures” and such practices as the notorious attempt imposition of a “score charge” to “to recoup for the producer his cost, and perhaps a profit, on what was involved in putting the sound track on the film or record the sound on a disc, timed in relation to the film." This was a blatant and early attempt at royalty stacking – and it prompted the establishment of the Copyright Appeal Board in Canada, which worked very well in Canada until the Copyright Board came along more than five decades later.

b)     Kraft tried to twist the s. 2.7 definition of an “exclusive licence” added in 1997 to the Copyright Act into a right to “thwart” the importation of perfectly authentic Toblerone chocolate bars based on copyright in a small picture on the packaging. I successfully thwarted this argument on behalf the Retail Council of Canada as an intervener when this case went to the SCC resulting in the decision in Kraft Canada Inc. v. Euro Excellence Inc., 2004 FC 652 (CanLII), [2004] 4 FCR 410, <https://canlii.ca/t/1h3qj>

c)     In one of the 2012 “Pentalogy” cases at the SCC, the Motion Picture Association of Canada incongruously argued, in effect, that the word “excludes” in the definition of “sound recording” actually means “includes”. The definition in question was: “sound recording” means a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work. (underline added). Needless to say, the SCC wasn’t impressed and the only mystery was why it even heard the case in the first place. See Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38 (CanLII), [2012] 2 SCR 376, <https://canlii.ca/t/fs0vc>

BTW, I was not alone in finding the hearing to be rather confusing. Even the judges were wondering at times about who was agreeing or disagreeing with whom and about what. Here’s the webcast.

Some of the parties seemed to depart from their factums – which in some cases were much more clear than their oral arguments. Perhaps the most useful factum was that of ESA, which can be found here.

 HPK

Thursday, July 07, 2022

The Copyright Board Third Town Hall on June 2, 2022: Was This “Three Strikes”?

The Copyright Board of Canada, hosted by the Canadian Bar Association, was given the stage for a third “Town Hall” on June 2nd 2022. Spoiler alert: once again, it was disappointing and mostly devoid of any substance – other than an interesting but very vague hint about how the Board sees possibly increased use of its so-called “arbitration” regime as some kind of response to the SCC’s 2021 decision in the York case that its tariffs are not legally mandatory. There was a follow up CBA event on June 9, 2022 about which I shall blog separately.

I have blogged at some length about the first two town halls in 2019 and 2021.  Expectations for this year's event we're quite low on my part  because there is no apparent evidence that anything significant has happened at the Board since last year. It has held zero hearings in nearly five years, rendered no significant decisions in 2021(with one possible exception noted below) or 2022 other than housekeeping of previous decisions with minor changes and a few “unlocatable” owner decisions of no consequence. It may be observed that it has finally corrected the spelling of “infrigment” [sic] on its website. Moreover, it has finally made almost all (or at least 211 according to CanLII out of 230 according to the Board since 1990) of its decisions searchable and available on CanLII, which is something that could have and should have been done 20 years ago at virtually no cost.

The most recent available Annual Report of the Board for 2020-2021 indicates that:

In spite of these pandemic-related challenges and the slowdown of activities in some industries involved in the rate approval process, the Board’s workload remained significant in 2020-2021. In addition to pending files, the Board received 21 new proposals tariffs submitted on or before October 15, 2020, as stipulated in the new legislative framework, and 21 licence applications for the use of works whose owners cannot be located as per section 77 of the Copyright Act. Also, 110 agreements were filed with the Board pursuant to section 76 of the Act. Finally, in 2020–2021, the Board issued 20 decisions, including two major decisions in complex files: June 26, 2020 SODRAC v. CBC, 2008–2012 [Redetermination] January 27, 2021 SODRAC v. CBC, 2012–2018 [Determination [Sic – this second link is wrong – it’s the same as the previous link] (highlight added)

The new tariff proposals, unlocatable licence applications, and filed agreements would have required a barely minimal “workload”. All of these tariff “decisions”, except two, appear to be rubber stamp repetitions with minor if any variations from previous decisions. The two links provided for the two supposedly “major” decisions are the same, which makes one question whether this report to the Minister was adequately proofread. In any event, these two “major” decisions are probably incomprehensible except perhaps to the lawyers and experts involved. This would appear to be the correct link for the “Determination”.

These two decisions are undoubtedly important to CBC and SODRAC (which is now owned by SOCAN) – and potentially with respect to similar issues arising in the commercial radio and TV worlds. However, the opacity of the reasons to all but a very small number of expert veteran Copyright Board lawyers and consultants is a disappointing departure from the past. The beauty of the common law judicial system is that good judgements on even the most complex issues are normally self-standing and reasonably understandable to any reasonably literate person and certainly to any reasonably knowledgeable lawyer in the field involved and not just the lawyers actually involved. The same should hold true – and usually does – with “expert” tribunals in Canada.

It might be noted that the hearings for these “major” decisions were in September, 2017 but the decisions were not rendered until June 26, 2020 and January 27, 2021 – long after members  Majeau and Landry had retired. They clearly continued for some time to be “seized” of these matters and presumably were paid for their time spent thinking about them. Federal Court and Supreme Court judges, on the other hand, must clear their desks of pending decisions within six months of retirement – and they have far greater case loads that are often much more complex and important.

The Board continues to foster the impression that it has a huge workload and is very productive. This is no doubt nourished by Prof. Jeremy de Beer’s controversial 2015 “statistical” study that parlayed 74 tariffs from 1999-2013 into supposedly 852 tariffs for that period though parsing of paragraphs, division into separate years, etc. This so-called “statistical” analysis  was questionable at the time and has not aged well. My critique of that analysis has not been refuted by anyone, as far as I know. As I further indicated at the time, based upon the Board’s own previous taxonomy and my analysis:

So, if the Board is right, and I am right, then Prof. de Beer’s conclusion that the Board has certified 852 tariffs in the last 15 years is off by a factor of 852 ÷ 74, i.e. ~1,150%. His conclusions that the Board certifies 70 tariffs a year would likewise be off by a factor of 70 ÷ 4.9, i.e. more than 1,400%

The Board has rarely, if ever, issued more than five actual tariffs in a year, and usually even fewer substantively important decisions. In turn, very few of these tariffs are truly new or “inaugural”.  Nonetheless, and do doubt empowered by Prof. de Beer’s study, the Board soon thereafter got a million dollar per annum increase in its annual budget bringing it to about $5 million a year for total expenses. That’s a lot for a Tribunal that hasn’t held a hearing in almost five years and apparently doesn’t adequately proof read its annual report to the Minister.

So, this year’s Town Hall was once again frustrating and disappointing, except for one aspect that may suggest how's the Board will try to find some justification for its continued existence in the face of the “existential” issues raised by the Supreme Court's decision last year in York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), <https://canlii.ca/t/jh8bc>

The first two speakers were the Vice Chair/CEO, Nathalie  Théberge, and Secretary General, Lara Taylor. They said essentially nothing, but did so in a very smooth,  bureaucratic and well rehearsed manner, with several references to their “mighty team”, “Phase I”, “Phase II”, etc. They promised an important forthcoming consultation on new rules, concerning which I’ll have something to say in due course. As I’ve said before, for the first time in the Board's history, neither of the persons occupying these two important positions are lawyers, which is incongruous considering the supposedly quasi-judicial nature of the Board's work in the very esoteric and quintessentially legal field of copyright law.

The somewhat interesting aspect of the remaining time after the long and uninteresting presentation by the Vice Chair and Secretary General was the discussion by its chair, retired Justice Luc Martineau and its general counsel Sylvain Audet. The chair mentioned the Access Copyright case, as he called it which followed the
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0> case “in a certain way” as he put it. There was clearly at least an implicit recognition that the Supreme Court's landmark ruling the copyright board tariffs are not “mandatory” well affect the nature of the Board's work. When I asked in the chat about how it might affect the workload, Maître Audet replied that this “remains to be seen”.

Both gentlemen explicitly suggested that there might be increased utilization of the Boards “arbitration” regime, based up on the 2018 amendments. The Chair noted that there had already previously been 15 arbitrations in the Board's 32 year history.

For my part, I do not see how the 2018 amendments will have any effect on the implications of the Supreme Court's rulings in CBC v. SODRAC and the York case, in both of which I made prevailing arguments. While the legislation may superficially suggest that a tariff applicant can force the party into an arbitration proceeding where they are “unable to agree”, what does that even mean if the user does not have to accept the result of the so-called arbitration? Users in such a situation may conceivably consider simply defaulting or putting in a token case. There have only been 15 uses of the “arbitration” mechanism to date. If anything the CBC v. SODRAC and York cases are likely to reduce its use. There is nothing in the 2018 legislation that would make it more attractive or effectively “mandatory”.

As was suggested, this so-called “arbitration” mechanism may be a useful mechanism where only one or two users are involved and there is a substantial amount of money at stake. However, some users who might be inclined towards so-called arbitration may now see better value by hiring and paying a retired judge or other private arbitrator with actual expertise in copyright or at least intellectual property law and actual serious arbitral experience – especially if the legal or factual issues are complex. These arbitrators are well paid because the most successful of them have the reputation of delivering expert results expeditiously, which frankly is not the case with the Copyright Board in modern times. Whether the Board would bless such a decision would be interesting. In any event, it’s not clear that the Board’s blessing would even be needed, since the result could presumably be “filed” with the Board pursuant to the existing mechanism for filing most agreements.

BTW, in other interesting developments at the Board:

Prof. Adriane Porcin, who was appointed as a part-time member of the Board in September 2022 for a four-year term, resigned in January 2022. She was a Board member with evident academic credentials in copyright law.

At least two prominent collectives have “withdrawn” proposed tariffs in recent months. These are CMRRA-SODRAC Inc. (“CSI”), CMRRA, and COPIBEC (the Quebec counterpart to Access Copyright that was seeking $28 per FTE annually). Could this be related to the SCC’s rulings on “mandatory” tariffs?

I’ll soon post more on the follow up comments by Professors De Beer and Gendreau on June 9, 2022 and the Board’s apparently less than compelling consultation effort regarding the its rules for conduct of its hearings, such as there may be, due on short notice on July 18, 2022.

So, this was the Board’s third time at bat at a CBA Town Hall. Readers can form their own conclusions about whether the Board struck out or maybe somehow will reappear again. If so, let’s hope that they actually have something important and useful to say and/or any actual achievements to speak about.

 HPK


Tuesday, June 21, 2022

Senate Begins Consideration of Bill C-11

The Senate has now begun an unusual “pre-study” of Bill C-11, the very controversial bill designed to force the internet into the broadcasting framework, and to update the Broadcasting Act and, in the process, give enormous new power to the CRTC. Michael Geist has covered this in terrific detail.

Today, June 22, 2022 he and the Hon. Konrad von Finckenstein, Q.C. testified before the Senate on Transportation & Communication. The video is available here.

Konrad von Finckenstein is a long standing legend in the Canadian public service. He was the lead counsel for the Canada/US Free Trade Agreement in the 1980’s, the Commissioner of Competition, a Federal Court Judge, and the Chair of the CRTC. Nobody else in Canada has such a remarkable breadth of knowledge, experience and policy acumen. He is still very active and contributing in the policy space, e.g. here with Jim Mitchell on May 4, 2022 on Bill C-11.

So, his testimony today was and will be very important. Here is the text of his speaking notes (he was only permitted six minutes) and his Annex, which details five specific amendments included below for convenience:

Annex A

I

Clause 2 of the bill is  amended by adding the following subsection 2(4)

Exclusion- Minor Online Undertakings

(4) This Act applies only to on line undertakings which have more than 100 000 subscribers in Canada or revenue in excess of 100 million from Canada.

II

Clause  4 of the Bill is amended by  adding the following subsection 2.1

Limitation on Regulations

2.1 Regulations made under sub section 2 (b)

i)                 apply to on line undertakings with paid subscriptions or embedded advertising that transmit, both their own or commercial content and user generated content, and   

ii)               must be constructed in such a manner that user generated content is not affected.

III

Clause 3(2) of the bill is amended by adding the following :

(2.1) Paragraph 3(1)d)(i) of the Act is amended by adding the following:

(i.1) reflect and be responsive to the preferences and interests of its audiences;

(i.2) to the extent possible rely on market forces to ensure that Canadians obtain the programming of their choice;

IV

Clause 13 of the Bill is amended  by adding  the following subsection  2.1 to section 11 of the act

2.1 For greater certainty

2.1 Conditions imposed or regulations made by the Commission regarding on line undertakings pursuant to sections 9.1, 10 or 11

1) shall

a)     not compel on line undertakings to change the methods by which they ascertain viewer’s choice

b)     respect viewers choices and leave them unaltered

2) may however require on line undertakings to offer Canadian program alternatives as an addition to viewers’ choices

V

Clause 14 of the bill is amended by adding the following after s.11.1 (5)

Eligibility to Benefits

(5.1) Where a foreign owned online undertaking is required pursuant to section 11.1 to pay an expenditure to a person or organization, or into any fund, that undertaking shall be eligible to the benefits available from any such person, organization or fund as if it were Canadian owned and controlled.

Today's hearing was off to a great start - and the Senate will hopefully provide the sober, second and thorough democratic consideration and necessary revision to the proposed legislation that Minister Pablo Rodriquez has denied in the House of Commons.

HPK

 

Monday, May 30, 2022

The York University v. Access Copyright Case: Reflections and What Lies Ahead

 

Prof. Ariel Katz and I were joint keynote speakers at the recent ABC Copyright Conference that took place virtually at Western University May 25-27, 2022. We spoke about the changes in the copyright landscape over the past decade, the challenges that lie ahead, and how to respond to them.

Last year, the Supreme Court of Canada (“SCC”) delivered its unanimous landmark decision, per Abella, J., in the case of York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII).   The SCC agreed with the intervention I made on behalf of the Canadian Association of Research Libraries and with Prof. Katz’s intervention (together with Authors Alliance) as presented by Sana Halwani and ruled that:

·         Access Copyright’s tariff as approved by the Copyright Board is not mandatory for users

·         It was unnecessary and inappropriate to issue a declaration about fair dealing in the circumstances of that case

·         Nonetheless, there were serious errors in the Courts below noted concerning their pronouncements about fair dealing, e.g. re “aggregate” copying.

Ariel and I have had a lot to say about the York University case and its lead up over the last 11 years or so, as documented in our various many blogs. Ariel’s brilliant “Spectre I”  and “Spectre II” papers have been very influential in the outcome and were cited by the SCC, along with my own 1999 paper about an alternative collective to Access Copyright.

The victory that we helped to achieve on behalf of the educational sector is now imperiled by heavy lobbying and, sadly indeed, significant misinformation spread by those would wish to limit fair dealing in the educational sector or even more generally and to make Copyright Board tariffs mandatory.

The educational sector can and must resist this lobbying and prevent the unravelling of their victory by lobbyists and by lies.

This is a winnable fight because several truths support the educational sector’s position and practices:

  • Educational institutions’ approach to fair dealing does not hinge on the 2012 amendments to the Copyright Act but are based on three Supreme Court decisions that interpreted the law before the 2012 amendment took effect (BTW, Ariel and I made an influential intervention in the Alberta case)
  • Two recent Supreme Court decisions, based on sound legal reasoning and policy considerations, holding that “mandatory” tariffs are not mandatory for users
  • The USA has hard-wired “teaching including multiple copies for classroom use” into its law in 17 USC 107 since 1976
  • The USA does not have “mandatory” tariffs
  • The long standing law in the USA underscores that fact that Canada provides equal if not better copyright protection to creators than the country from which much of the pressure to amend Canadian law to the detriment of innovation generally and the educational sector in particular is emanating
  • The Canadian education sector is spending hundreds of millions a year or more on direct licensing, acquisitions, and the creation of OER material. The fact that this money does not flow through Access Copyright is the result of the emergence of a modern and innovative marketplace that serves educational institutions much more efficiently that Access Copyright’s inefficient, obsolete, and redundant business model.
  • The material used in higher education is written predominantly by academics in Canada or elsewhere and not by authors of poetry, short stories or novels.
  • In most cases when Canadian literature is included in a syllabus, the students are expected to buy the work—and they do.
  • The publishing sector is doing well, and academic publishers are doing extremely well – even in spite of COVID. If there are any hard cases out that there that truly merit and need support, Canada has a long record of providing subsidies in the cultural sector. The Canada Council, for example, has existed since 1957.

So, Ariel and I were honored to present our keynote talks at ABC which are available here:

        Howard Knopf ABC Keynote May 25, 2022

        Ariel Katz ABC Keynote May 25, 2022

These slide shows contain multiple useful links in support of the above.

Thank you to ABC for the opportunity to make this presentation.

HPK

Sunday, May 08, 2022

WIPO Broadcasting Treaty: Could - or Should - Canada Make a Difference?



The idea of a Broadcasting Treaty has been kicking around at WIPO  for almost 25 years. I have frankly always regarded it as a solution in search of a problem. As always, my views here are purely personal.

The 42nd (yes – forty second) Standing Committee on Copyright and Related Rights (“SCCR”) meeting is about to take place in Geneva from May 9-13, 2022. The eminent authority Bernt Hugenholtz aptly calls this “Groundhog Day in Geneva” in a paper that is a must read.

The architecture of broadcasting, transmission, retransmission, and just about everything  concerning the internet itself has changed in countless ways since 1996.

Yes – there has been some “piracy” since then, depending upon how “piracy” is defined by increasingly aggressive copyright litigants and increasingly receptive maximalist courts. But there has been no crisis. Broadcasters, transmitters, retransmitters, content owners and various intermediaries are doing better than ever, and vertical and horizontal integration continue to converge power in the hands of fewer and fewer and ever more internally conflicted entities. None of these converged powers any longer are remotely proxies for the interests of educators, scholars, students, libraries and billions of consumers who are paying more, getting less, and seeing increasing government control over all of this.

Here is the latest draft text of the proposed treaty.

It appears that the Canadian delegation attending in Geneva next week will be:

CANADA

 

Owen RIPLEY (Mr.), Associate Assistant Deputy Minister, Department of Canadian Heritage, Gatineau

 

Samuel GENEROUX (Mr.), Senior Policy Analyst, International Copyright, Canadian Heritage, Gatineau

 

Jamie ORR (Ms.), Policy Analyst, Canadian Heritage, Ottawa

It is understood. but not readily understandable, that the Innovation, Sciences & Economic Development department (formerly Industry and formerly Consumer & Corporate Affairs) (“ISED”) will be involved only virtually. The absence of ISED from personal attendance at an important meeting at WIPO is extraordinary. For decades, ISED had the lead role in international relations. Once upon a time, for several years, I was the “head of delegation” at such WIPO meetings on behalf of the then Consumer & Corporate Affairs Department, as it was called before its rebranding as ISED.  However, ISED now seems sadly to be Missing In Action (“MIA”) in all matters related to copyright, the internet, broadcasting, communications, etc. The Ministers of both ISED and Heritage are both Francophones from Quebec, a “civiliste” Canadian province with varying degrees of nationalist ambitions and separatist tendencies over the years and excessive political influence and where copyright and culture have usually been conflated, elevated and confused well beyond the norms of the common law canon.

One is hearing from various sources that Owen Ripley, who has had a remarkably rapid series of promotions at Canadian Heritage despite some controversy, after which he was actually futher promoted, for being too “chummy” with industry, is being touted by Canada to be the next Chair of the SCCR. This could in turn lead to even greater things – as the current DG of WIPO, Darren Tang can attest. He was chair of the SCCR just prior to his appointment as top official at WIPO.

Mr. Ripley, who was called to the bar only 12 years ago, has been extensively lobbied by “maximalists”,  He had presumably had a leading role in the very controversial recent Canadian Bills C-11 (regulating the internet as broadcasting), C-18 (taxing Google etc. for linking to news media), the forthcoming Online Harms initiative and the inclusion  in the recent 2022 Federal Budget of:

  •         Terms extension of 20 years with no provision for a mitigating registration system, notwithstanding suggestions by former US Register of Copyright Maria Pallante (always a champion of publishers and content owners) and Canada’s current Minister of Justice, David Lametti, PC., MP, when he was a copyright law professor at one of Canada’s leading law schools
  •         Potentially disastrous references to forthcoming legislation that could:

o   Eliminate “education” as a fair dealing purpose – notwithstanding that teaching (including multiple copies for classroom use) has been hardwired into the US Copyright Act since 1976  https://www.law.cornell.edu/uscode/text/17/107 

o   Undo the Supreme Court of Canada’s two decisions declaring that Copyright Board tariffs are not mandatory for users – notwithstanding that there are no “mandatory” tariffs or anything remotely equivalent in the USA.

Needless to say, none of this belongs in a “Budget” package – let alone legislation – where it will receive virtually no parliamentary scrutiny. Moreover, the current minority Liberal Government has been immunized from criticism by what is effectively a coalition without benefits with the second so-called opposition party and the lack of any adequate current or likely leadership from the main opposition party.

Bottom line

The maximalist agenda is thriving in Canada. I can frankly not remember any batch of such extreme and unwise bills and policies  in my four decades of involvement or historically at any time before.

If Mr. Ripley becomes the Chair of the SCCR, which obviously would be with blessing of the Canadian government, one can be assured that he would very competently and quickly promote a very maximalist “Broadcasting Organizations Treaty”. This would be welcomed by broadcasters (whatever that term means anymore), content owners, intermediaries and other corporate interests. Not so much by users everywhere. It will be very interesting to see how the developing countries - who are in the majority at WIPO -  line up on this.

HPK

PS - as tweeted by @Jamie_Love on May 9, 2022: "WIPO #sccr42 has decided to split the Chair by year. Aziz Dieng from Senegal for 2022. Owen Ripley from Canada for 2023. Peter Labody from Hungary, vice-chair of SCCR 42. It was an unusually contested election, Group B v the Africa group. Still no female SCCR chair."

- as tweeted on May 9, 2022 by @ThiruGeneva: "#SCCR42 agrees that Mr. Aziz Dieng will assume the chair of the committee until #SCCR43 (in 2023). Mr. Labody will remain vice-chair until 2024. Mr. Ripley will be vice-chair until 2023; in 2023 he will assume the chair of SCCR until 2024."