Monday, March 13, 2023

Some Comments on Retired Copyright Board Chair Justice William Vancise’s 2017 Comments

A paper published in 2018 from the Hon. William Vancise, former Chair of the Copyright Board of Canada has recently been brought to my attention by an astute copyright officer, namely Joshua Dickison from the University of New Brunswick. The paper was presented at this prestigious event at Columbia Law School in 2017.

Justice William Vancise was appointed as Chair of the Copyright Board  in 2004 and reappointed in 2009. His term ended when he retired from the Board on May 13, 2014, although he took until January 19, 2018 to render his last decision – almost four years after his retirement. The Board appears to be unique in terms of Canadian courts or tribunals in permitting this kind of delay and disincentive to render timely decisions, as I have pointed out before. The problem has still not been solved.

Ironically, shortly after his appointment, he stated that:

 I am not at all happy with the time it takes to render a final decision. I have tried to address the issue and I can assure you it will be resolved. If the Supreme Court of Canada can render a decision within six months of a hearing, there is no reason why this Board cannot do the same. My goal is to see that this occurs.” (highlight and emphasis added)

Judges of the Federal Court and Federal Court of Appeal have eight weeks after retirement to render any pending decisions. Even Supreme Court of Canada justices have only six months after they retire to participate in decisions in cases on which they sat. The Canadian Judicial Council has specifically pronounced that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances.”

For better or worse, Justice Vancise was often and explicitly publicly outspoken. Once again, and even more so than in his previous pronouncements, he demonstrates his sometimes contentious and  problematic views about essential copyright and Copyright Board fundamentals in this 2018 publication by:

  • Reimagining and redefining the meaning of “compulsory licence” in the context of copyright law;
  • By continuing and indeed amplifying his apparent lack of appreciation for the copyright contributions of the Federal Court of Appeal and the Supreme Court of Canada;
  • By ignoring the fact that a Senate Committee found the Copyright Board was “dysfunctional”  two years earlier;
  • By elevating the wasteful and almost useless “unlocatable” copyright owner regime to something supposedly important. To his credit, while was Chairman, Justice Vancise finally reversed years of wasted time and resources at the Board related to issuing unnecessary licences to use architectural plans for home renovation – but only after I publicly pointed out that the Board had long been oblivious for years to directly applicable Supreme Court of Canada jurisprudence; and,
  • By following in the pattern of too many seasoned officials and/or politicians who have blamed the failure of their institutions on a lack of resources and calling for more resources rather than more expertise and efficiency. Once again, it must be noted the Copyright Board long had a budget greater than the Competition Tribunal. Unfortunately, the Competition Tribunal’s website has mysteriously gone from excellent to something very much less and very out of date in terms of reports, so its current budget is not readily apparent. It bears repeating that the Copyright Board has held only one actual hearing in more than last five years.

Justice Vancise admits that he came to the Board without intellectual property expertise. He states by way of introduction to this paper:

Although I am not an expert in intellectual property, I was fortunate to hear and decide cases including the transmission of music on the Internet, interpretation of the blank

media levy, making available right, and fair dealing disputes surrounding licensing

for educational institutions. The Board decides more copyright issues than any other court or tribunal in Canada.

The highlighted portion is, of course, quite wrong. The fact is that that the Copyright Board’s substantive decisions on copyright legal issues have been relatively few and very often wrong as determined by judicial review. The Federal Court, the Federal Court of Appeal, the Supreme Court of Canada and even superior courts of the provinces have been far more active and influential in terms of substantive copyright law. Moreover, he fails to accept that that the primary role of the Copyright Board is to set rates, terms and conditions and NOT to gratuitously stray from this important but narrow lane into incorrect pronouncements about such matters as deeming a device to be an audio recording medium or the effect of a WIPO treaty on Canadian legislation. Even if the statute permitted such departures from rate setting as necessarily incidental to the Board doing its job of rate setting, the Board has never had the mandate or the legal expertise to make significant and credibly correct legal rulings of this nature. Even if there is some backroom legal expertise, this only exacerbates the problem because that is not where important rulings should emanate. There is an ancient and honourable maxim that “whoever hears must decide.” The problem is exacerbated when there is a Vice Chair and Secretary General with no legal qualifications.

It is important to reiterate that the SCC has repeatedly held, and as recently as in 2022, that the Copyright Board will be held to the demanding “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.

Justice Vancise is wrong that there is a need for more resources for the Board. If anything, the opposite is true. The parties before the Board are generally very competent. The Board members should decide based on the parities’ evidence and arguments – and not what they hear behind the scenes from their staff. That is NOT the way courts and tribunals are supposed to work.

Justice Vancise’s successors, Justice Robert Blair from the Ontario Court of Appeal and Justice Luc Martineau from the Federal Court have been a complete contrast by refraining from public expression of so many prolific and outspoken views. For whatever reason, Justice Blair served only one term as Chair of the Copyright Board from 2015 to 2020. Justice Martineau, retired from the Federal Court, was appointment in 2020 for a five year term. Since his appointment, there has only been one hearing and no decisions of any major consequence. Both have been extremely circumspect in terms of public comments about the Board.

Indeed, the last Board decision of any possible major consequence was the redetermination of the SODRAC tariff for CBC following the 2015 Supreme Court of Canada decision. That was decided on June 26, 2020 with Chairman Blair presiding. Most, if not all, of the tariffs and decisions since then have effectively been unopposed and unimportant. Interestingly, there have been a lot of withdrawn tariffs – perhaps somehow arising from the Supreme Court’s ruling that Board tariffs are not legally mandatory for users.

It should be acknowledged that Justice Vancise was an enthusiastic Chair of the Copyright Board and deserves credit for his attempts to constructively improve its operation. Unfortunately, his initial assurance that decisions would be rendered within six months of a hearing was not fulfilled. His frank public comments were frankly sometimes  inappropriate in terms of appreciating the role of the Federal Court of Appeal and the Supreme Court of Canada, which clearly have the power to overrule the Board when it is incorrect on substantive law. The FCA and the SCC deserve great respect not only because of their institutional role vis a vis the Board but because of the overall quality of their decisions. It is important to reiterate that, even after Vavilov, the Courts have carved out a special niche for the correctness standard of review when it comes to Copyright Board decisions, and rightly so since copyright litigation in the superior courts is affecting thousands of individuals and many very large corporations.

Whether or not it was appropriate for him to do so, Justice Vancise did speak the truth when he notes in this paper the problem with Access Copyright’s “business model” and that “The real problems are parties like Music Canada, who manipulate the copyright system..”

 The Copyright Board is headed for some interesting times and existential scrutiny, and Justice Vancise’s 2018 publication is an interesting contribution to the debates that lie ahead. It will be particularly interesting to see whether he has been only speaking for himself with his more contentious views or whether they somehow represent the ingrained institutional views of an arguably still, if not even more than ever, “dysfunctional” Copyright Board.

 More to follow shortly re the Copyright Board’s latest tinkering with procedure and aspirations for an additional $1 million a year…


Thursday, February 02, 2023

I asked ChatGPT on February 2 , 2023: "who is the most successful copyright litigator in Canada?"

I asked ChatGPT on February 2 , 2023: "who is the most successful copyright litigator in Canada?"

It is difficult to determine the most successful copyright litigator in Canada as success in litigation can be measured in various ways such as the number of cases won, the impact of the cases, the size of settlements, and more. Additionally, the legal industry is constantly evolving, and new players may emerge. As of my training data cut-off in 2021, some of the well-known copyright litigators in Canada include Barry Sookman, Tamir Israel, and Howard Knopf.

Note - I asked the question several times and sometimes got non-answers or somewhat non-sensical answers....But the above was the first and most interesting....😉

Maybe ChatGPT is emulating human intelligence by being somewhat inconsistent and even illogical at times...


Sunday, January 29, 2023

I asked ChatGPT: "What are the criticisms of Access Copyright?"

What are the criticisms of Access Copyright?

Access Copyright has been criticized for a number of reasons, including:

1.     The cost of licensing: Some organizations, particularly schools and universities, have complained that the fees charged by Access Copyright are too high.

2.     The scope of the license: Critics have argued that the scope of the license offered by Access Copyright is too broad and that it covers uses of copyrighted materials that should not require a license.

3.     The impact on fair dealing: Some critics have argued that the licensing scheme offered by Access Copyright undermines the principle of fair dealing, which allows for the use of copyrighted materials without permission for certain purposes such as research and private study.

4.     The lack of transparency in the distribution of royalties: Some copyright holders have complained that they do not receive enough information on how royalties are distributed and that they do not receive enough royalties for their works.

5.     The copyright collectives such as Access Copyright are seen as outdated and unnecessary in the digital age where copyright holders have more direct ways to license their content.


I asked ChatGPT: "Who is the most important copyright scholar in Canada?"

Who is the most important copyright scholar in Canada?

It's difficult to say who the most important copyright scholar in Canada is, as the field of copyright is broad and there are many scholars who have made significant contributions. However, there are a few scholars who have made significant contributions to the field of copyright law in Canada and are considered experts in the field.

One such scholar is Michael Geist, who is a law professor at the University of Ottawa and a leading expert on Canadian and international copyright law. He is known for his research and advocacy on issues related to copyright and the internet, and has written extensively on the subject.

Another notable scholar is Ariel Katz, who is a law professor at the University of Toronto, and an expert on copyright law, and intellectual property. He is known for his research on copyright and digital media, and his contributions to the field of copyright law, and the impact of technology on the copyright system.

Finally, one of the most respected copyright scholars in Canada is David Vaver, who is a retired law professor from Osgoode Hall Law School, York University. He is the author of "Canadian Copyright Law" a well-known reference book on the subject, and his contributions to the field of copyright law have been widely recognized.

It's important to note that these are just a few examples of scholars who are considered experts in the field of copyright law in Canada, and there are many other accomplished scholars and researchers that have made significant contributions to the field.

Highlight added...


Thursday, January 26, 2023

ChatGPT gets an "F" on "Are Access Copyright's copyright board tariffs "mandatory" in Canada?"


Are Access Copyright's copyright board tariffs "mandatory" in Canada?

Access Copyright's copyright board tariffs are considered "mandatory" in Canada in the sense that they are legally binding tariffs that must be paid by certain organizations, such as educational institutions, in order to reproduce copyrighted materials. However, it should be noted that not all organizations are legally required to pay these tariffs and there are some exceptions and limitations to the tariffs. Additionally, some organizations and individuals may choose to use alternative methods for obtaining copyrighted materials, such as licensing or fair dealing.

Well, maybe their database is out of date or they haven’t read my blog.

The above is wrong, of course. An “F” grade…

Or is that no longer allowed, if it might upset the AI robot?




I just asked ChatGPT: "What is the difference between "antitrust" law in the USA and "competition" law in Canada?"

 I just asked ChatGPT: "What is the difference between "antitrust" law in the USA and "competition" law in Canada?" 

Antitrust law and competition law are similar in that they both aim to promote fair competition and prevent monopolies. However, there are some key differences between the antitrust laws in the United States and the competition laws in Canada.

In the United States, antitrust laws are primarily enforced by the Federal Trade Commission (FTC) and the Department of Justice (DOJ), and are governed by the Sherman Act and the Clayton Act. These laws prohibit certain types of business practices, such as price fixing and monopolization, and are designed to protect consumers from anti-competitive business practices.

In Canada, competition law is governed by the Competition Act and is enforced by the Competition Bureau. The Competition Act prohibits a variety of anti-competitive practices, such as price fixing, predatory pricing, and exclusive dealing. It also has a merger review process to ensure that mergers and acquisitions do not result in a substantial lessening or prevention of competition.

In summary, both antitrust and competition laws in USA and Canada have the same goal to promote fair competition and prevent monopolies, but the specific laws, agencies, and processes for enforcing these laws can vary.

 That response was virtually instant...


I just asked ChatGPT: "What is the difference between copyright "fair use" in the USA and "fair dealing" in Canada?"

I just asked ChatGPT "What is the difference between copyright "fair use" in the USA and "fair dealing" in Canada?"

 Here’s the answer I got in a few seconds: 

In the United States, "fair use" is a doctrine in copyright law that allows for limited use of copyrighted material without the need for permission from the copyright holder. This is determined on a case-by-case basis and takes into account factors such as the purpose of the use, the nature of the copyrighted work, the amount used, and the effect of the use on the market for the original work.

In Canada, "fair dealing" is a similar doctrine that allows for the use of copyrighted material without permission in certain circumstances, such as for the purpose of research, private study, criticism, review, news reporting, education, satire, and parody. The purpose of the use is considered to be the most important factor in determining if it is fair dealing.

Both fair use and fair dealing are limited exceptions to copyright infringement and are subject to interpretation by the courts.

 Not bad… 😉