Province of Alberta et al v. Access Copyright, Federal Court T-326-18 - Next Steps in Summary Trial Motion

 For those following the proceedings in Province of Alberta et al v. Access Copyright, Federal Court T-326-18 (the K-12 proceeding), which I wrote about on October 5, 2023, here is what to expect following the conclusion of the opening statements and evidentiary phase of the summary trial motion. This is the Direction of the Federal Court from presiding Justice Aylen dated October 17, 2023:

Ottawa, Ontario

K1A 0H9

October 17, 2023

BY EMAIL ONLY

Counsel for the Plaintiffs:

Wanda Noel wanda.noel@bell.net, wanda.mary.noel@gmail.com

Ariel Thomas law@arielthomas.ca

J. Aidan O’Neill aoneill@fasken.com

Alexandra Logvin alogvin@fasken.com

Counsel for the Defendant:

Sarit Batner sbatner@mccarthy.ca

Barry B. Sookman bsookman@mccarthy.ca

Daniel G.C. Glover dglover@mccarthy.ca

Laura E. MacDonald lmacdonald@mccarthy.ca

Allison Spiegel aspiegel@mccarthy.ca

RE: THE PROVINCE OF ALBERTA ET AL v. THE CANADIAN COPYRIGHT

LICENSING AGENCY

Court File No: T-326-18

This will confirm the Directions of the Court (Madam Justice Aylen) issued on October

17, 2023

“The following timetable shall apply to the closing arguments on the summary trial motion:

(a) Access Copyright shall serve and file their further written representations (which shall

not exceed 60 pages in length, without leave of the Court) by no later than November 10, 2023,

which shall replace their original written representations.

(b) The Plaintiffs shall serve and file their further responding written representations

(which shall not exceed 60 pages in length, without leave of the Court) by no later than

December 4, 2023, which shall replace their original written representations.

(c) Access Copyright shall serve and file any reply written representations by no later than

December 18, 2023.

(d) The oral closing arguments shall be held, in person, at the Federal Court in Toronto

on January 17 and 18, 2024 commencing at 9:30 am (Eastern).

(e) The parties shall ensure that their further representations address, among other things,

the following issues:

a. Who bears the burden of proof on each issue;

b. How the limitation period issue factors into each of the three issues put forward by the

parties, if at all;

c. Substantive submissions on the asserted limitation bar (including in relation to any

equitable relief), with reference to the relevant evidence (such as the presence or absence of

FTE forms, FTE reporting, invoicing, etc.);

d. Can someone “offer to pay” under the Copyright Act by way of their conduct?

e. Where the Court finds the terms of the licence that Access Copyright asserts that the

Plaintiffs offered to pay for;

f. The distinction between the tariff and a licence, if any;

g. What documents shed light on the parties’ understanding of the term of the licence

that Access Copyright asserts that the Plaintiffs offered to pay for (annual, 3 years, 6 years);

h. Did the Copyright Board amalgamate the two proposed tariffs or simply hear them

together? What impact, if any, does this have on the term of the licence?

i. How, if at all, the principles applicable to oral contracts come into play in establishing

the terms and conditions of the licence that Access Copyright asserts that the Plaintiffs offered

to pay for;

j. How does a continuation tariff impact the term of the asserted licence, if it all;

k. Is there an ability to terminate the licence that Access Copyright asserts that the

Plaintiffs offered to pay for and if so, on what basis and where does that ability come from?

l. Clear submissions as to the evidence relied upon and theory of liability for Access

Copyright’s assertion that the Plaintiffs offered to pay for a licence for each of 2016, 2017,

2018, 2019, 2020, 2021, 2022 and 2023;

m. Is Access Copyright asking the Court to find that the Plaintiffs have engaged in serial

infringement and if so, what evidence supports that assertion?

n. To grant the equitable remedies sought by Access Copyright, does the Court need to

make a finding of infringement?

o. What use can be made of the Copyright Board’s decision and the 2005-2006 volume

study on the issue of infringement;

p. Can the Court consider the agreement between the parties regarding the uses to be

made of the volume study? If so, is this proceeding off-side that agreement?

q. Can the Plaintiffs assert a lack of clean hands on the part of Access Copyright given

the state of the Plaintiffs’ pleadings?

r. Whether Access Copyright has standing to assert each form of equitable relief sought;

s. Whether equitable relief is available under the Copyright Act and if so, pursuant to

which provision(s) thereof;

t. The framing of issue 3 and whether a claim for equitable set-off can be made out if the

answer to issue 2 is “no”; and

u. The specific relief sought by each party in the form of a draft order.”

Yours truly,

Aline Longin

Registry Officer

(highlight added)

 

I asked ChatGPT "What are the copyright issues involved with generative AI?"

 So - I asked ChatGPT "What are the copyright issues involved with generative AI?".

Here's its answer. Not bad for the price and the instant response time...😉:

ChatGPT

Generative AI, which includes models like GPT-3 and similar technologies, can raise several copyright issues and legal considerations. It's important to note that copyright law can vary from country to country, so it's essential to consult with a legal expert for specific advice. However, here are some general copyright issues and concerns related to generative AI:

1. Ownership of Generated Content: One of the primary copyright concerns is determining the ownership of content generated by AI. In many jurisdictions, the creator of a work holds copyright over it. But when AI generates content, there is no human creator in the traditional sense. This raises questions about whether the AI developer, the user of the AI, or both have rights to the generated content.
2. Fair Use and Transformative Use: Copyright law often permits the use of copyrighted material under the doctrine of "fair use" (or similar concepts in different legal systems). Whether AI-generated content qualifies as fair use or a transformative use can be a complex legal question. It depends on factors like the purpose of the use, the nature of the copyrighted work, and the amount used.
3. Training Data and Pre-existing Copyrighted Material: The data used to train generative AI models often includes copyrighted material. The model may inadvertently generate content that resembles or replicates this copyrighted material. This can lead to copyright infringement claims.
4. Licensing and Permissions: Users and developers of generative AI should consider obtaining appropriate licenses or permissions when using copyrighted materials to train models or generate content, especially when using it for commercial purposes.
5. Attribution and Plagiarism: When AI generates content, it may not provide proper attribution to the original sources of information or ideas it used to generate that content. This can lead to plagiarism concerns and copyright disputes.
6. Derivative Works: Generative AI can create derivative works based on existing content, which can infringe upon the original copyright if not properly licensed or transformed.
7. Public Domain and Open Source: It's important to distinguish between copyrighted and public domain or open-source content. Content generated by AI based on public domain or open-source materials may have different legal considerations.
8. User Responsibility: Users of generative AI are responsible for the content generated by the AI they use. They should be aware of copyright laws and ensure that they are not infringing on the rights of others.
9. Case Law and Legal Developments: Copyright law is still evolving in response to AI and machine-generated content. Courts and lawmakers are continually addressing these issues, so it's essential to stay informed about legal developments in this area.

In summary, the copyright issues surrounding generative AI are complex and evolving. It's crucial for AI developers, users, and content creators to be aware of these issues, seek legal advice when necessary, and ensure compliance with copyright laws and regulations in their jurisdiction. Additionally, it's essential to consider ethical considerations related to the use of AI-generated content and its potential impact on creators and the creative industries.

 

K-12 School Boards v Access Copyright & Vice Versa - October 10, 2023 Federal Court Summary Trial

In 2018, the Province of Alberta and dozens of K-12 school boards sued Access Copyright for a refund of $25 million they allegedly overpaid for Access Copyright licences for 2010, 2011 and 2012.

Access Copyright, on the other hand, has defended and  counterclaimed for a potentially much larger amount based upon subsequent Copyright Board tariffs.

Of course, as we all know, the Supreme Court of Canada ruled in 2021 that Access Copyright’s Copyright Board tariffs are not “mandatory”. See York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), <https://canlii.ca/t/jh8bc>

In a complex proceeding, namely Federal Court T-326-18, the parties have agreed that the main issues are as follows;

Issue #1: Have the Plaintiffs been licensees from 2013 onwards? (If so, the Plaintiffs shall pay the Access Copyright tariff in respect of the years in which they were licensees; if not, Issue #2 must be determined).

Issue #2: If not, are the Plaintiffs nevertheless liable in equity to pay Access Copyright? (If so, the Plaintiffs shall pay the Access Copyright tariff in respect of the years in which equity bound them; if not, Issue #3 must be determined).

Issue #3: If not, is Access Copyright entitled to retain the 2010-12 overpayment in any event? (If not, the Plaintiffs are entitled to a refund of overpaid royalties).

The case will be heard by way of “summary trial” on October 10, 2023 for seven days – which is interesting given the voluminous record and the lengthy proceedings to date. Those interested in observing can request to login virtually using this link:

https://www.fct-cf.gc.ca/en/court-files-and-decisions/hearing-lists

and doing a search for file # T-326-18. The request should be made soon.

There are some prominent counsel involved. This should be worth watching.

HPK