A Resounding Smackdown for Re:Sound and Possible Portent of Things to Come?

Re:Sound Annual Report 2024

This recent November 6, 2025 decision of the Federal Court of Appeal (FCA) is a big smackdown of Re:Sound  - the big music collective that represents “artists and record companies”. This is an interesting decision for more than one reason.

Re:Sound – which has long been represented by the same law firm that has also represented Universities Canada and York University – apparently didn’t get around to making certain arguments below before the Copyright Board.

The FCA was clearly not pleased with the attempt to “raise for the first time before this Court” new arguments that had not been put forward when they could and should have been in the forum below. So, the FCA unsurprisingly and decisively – about one week after the hearing - dismissed the judicial review.

What is rather interesting is that two the three judges here (including Pamel, J.A., the author of this decision, and Webb, J.A., the presiding judge) had heard the Blacklock’s appeal about a month earlier on October 7, 2025, upon which I commented. During that hearing, that panel was concerned that Blacklock’s had long ago discontinued its copyright infringement claims in the case before them. Upon being confronted with this and issue of whether its appeal was “moot”, Blacklock’s desperately tried to amend its appeal factum and arguments on the spot in the FCA, or at least adjourn to another day. At the close of the hearing, the FCA said it would rule soon on the Blacklock’s case  – though that was on October 7, 2025.

The Re:Sound decision may suggest that the FCA will not be thrilled by Blacklock’s attempt to do a makeover in the FCA.

HPK

Budget Trepidation for the Nation? Are We Flailing or Even Failing on AI?

HAL - 2001

As I wait in trepidation for the November 4, 2025 Federal Budget, I wonder what it will say about AI – the inevitable topic “du jour”.

The copyright cabal, or at least two of its least credible but most whiny and vocal members,  have made it clear that they want the Government to:

 … amend the Copyright Act to clarify fair dealing for education, make tariffs set by the Copyright Board of Canada mandatory and enforceable, and ensure statutory damages are available to all collectives.

No doubt Access Copyright & COPIBEC would be thrilled to attempt to monetize the ingestion of the billions or more copyrighted works in which they have ZERO legal interest. No doubt Canada’s Copyright Board would struggle to enable them, if given the scintilla of an opportunity.

Copyright is the unavoidable elephant in the room in any serious discussion of AI.

There are many other indications of copyright lobbying activity from the usual suspects aimed at Ottawa – e.g. here’s what’s on the record just from January 1, 2025.

For those who are curious and have time on their hands, I urge you to respond to the Government's online AI survey by today’s October 31, 2025 Halloween deadline. It may not inspire much confidence. As I said on Twitter recently:

This consultation survey on AI from ISED with a response due by Oct 31 is long, repetitive, suggestive as to responses, & confusing. It feels as if it was generated by AI & maybe it will be tabulated by AI. It's anonymous, for better or worse.

Canada still needs to learn the necessary lessons from our very sad tech catastrophes from the not so distant past, e.g. AVRO Arrow, RIM/Blackberry, Corel, JDS, & Nortel. It seems that we are collectivity unwilling to do the necessary postmortems on these disasters.

And last but not least, throwing $2.4 BILLION dollars up in the air and into the wind on AI is a very reflexive "Canadian" response and will no doubt be welcomed by countless consultants and other potential beneficiaries  - but may not help and could well cause harm. The government is NOT always sufficiently competent at procurement. On the optimistic side, there are some very smart people in the new AI ministry under Evan Solomon. Hopefully, they will proceed wisely. OTOH, there are many other places in the Government that could get involved and spend money for better or for worse. In the worst case, could we see more “Arrivescam” and Laith Marouf fiascos possibly magnified exponentially?

Canada may have contributed Geoffrey Hinton – a Nobel Prize winning pioneer in AI. But we are now nowhere and flailing and possibly failing fast.

HPK

The Latest From Canada’s Copyright Board: Comments on the 2024-2025 Annual Report

The Copyright Board has recently published its 2024-2025 Annual Report.

It’s difficult to find any tangible indicators of substantial progress following the scathing 2016 Senate report nine years ago that concluded that the Board was “dated, dysfunctional and in dire need of reform”.  Here are some of my detailed posts about the Board going back from 2023.

As for the current Annual Report, the following may be noted:

• The Board has not held an oral hearing since October of 2022.
•  It has renovated its very commodious and large prime real estate space at 56 Sparks St., Ottawa’s most famous address, which includes a large and now very rarely used hearing room.
• The Copyright Board has SIX (6) legal counsel. It is difficult to imagine why the Board needs more than one, considering its very limited and repetitive caseload and its very infrequent contested hearings. What do they all these counsel actually do?
• The Board lists 24 people on its payroll.
• The cost of operating the Board for the year ending March 31, 2025 was $5,674,097. That’s $638,343 MORE than was planned.  https://www.cb-cda.gc.ca/en/about-us/reports-publications/financial-reports/2024-2025-financial-statements
• The Board issued only 8 decisions re unlocatable copyright owners in 2024-25. These are typically only a few lines long and devoid of any details or reasoning. It is difficult to see how any of these would require more than a few minutes of consideration by anyone. Note that in 2014 the Board made concerted attempts to justify this regime including impassioned statements by former Chair William Vancise and Barry Sookman at the Fordham Conference. My aforesaid blog also has a good discussion about the unlocatable regime including comments from Andrew Martin and Ariel Katz. The Board has recently made an elaborate presentation on the topic. It would be interesting to know just how much time and resources are spent on these files and by whom and at what cost.

The Chair of the Copyright Board must be a judge or retired judge. Judges are presumably supposed to be judicious and follow the law – and not advocate on behalf of stakeholders.  Former Chair William Vancise was quite outspoken in this respect.  See also here. He also took almost four years following his retirement from the Board to render his last decision. Ironically, it was about Access Copyright, the tariffs of which have now been declared to be non-mandatory by the Supreme Court. It would be interesting to know if and how much he was paid for this unusually lengthy deliberation. As I’ve pointed out before:

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.”

The most recent Chair has been retired Justice Luc Martineau. The Chair position is a GCQ5 Order in Council appointment.  Soon after the publication of the 2024-2025 Annual Report, he was re-appointed until October 9, 2027.  Interestingly, that’s only for two more years. It could have been for five years. Justice Martineau has been notably taciturn until now in his public pronouncements. However, he did say this in his Annual Report from 2021-2022:

The 2021‒2022 fiscal year was also marked by the Supreme Court of Canada’s decision in York v. Access Copyright, an important decision that clarifies, among other things, the scope of tariffs approved by the Board. This decision will certainly have an impact on the Board’s ability to deliver on its mandate, but it will be some time before we see the concrete results of this decision, including the cumulative effect of the decision and the changes made to the Copyright Act in 2019.

(highlight and emphasis added)

One would have thought that the Board’s “mandate” is defined by the Copyright Act as interpreted by the Supreme Court. If that means that Board tariffs aren’t mandatory, then they aren’t mandatory. The delivery of non-mandatory tariffs is, therefore, the Board’s “mandate”.  In other words, the Board’s mandate is presumably to deliver tariffs that provide fair compensation to creators and sufficient value to users that they will be utilized voluntarily, like the analogy I made to the SCC about the railway passenger tariffs in the old, regulated days. Then,  fares were prescribed but nobody was forced to take the train, e.g.  from Ottawa to Toronto, if they had other less expensive or otherwise preferable options. Even the SOCAN tariffs aren’t de jure “mandatory”, but they are de facto mandatory, for example, if you own a radio station and don’t want to limit your music to Bach, Mozart, and Beethoven. And even then, you would have to deal with the rights in the sound recordings and performances that aren’t in the public domain.

Justice Martineau says the following in the current Annual Report:

I am proud to present our 36th Annual Report, covering the period from April 1, 2024, to March 31, 2025. For the past few years, the Board has made great strides in terms of operational efficiencies. As I enter the last year of my first term as Chair of the Board, I am pleased to see the significant progress we have made in modernizing our operations and look forward to continuing this path of success with our new ViceChair and CEO, Drew Olsen.

Since my appointment in 2020, the Board has strengthened its role as a specialized tribunal and marketplace facilitator in the public interest. We have enhanced the efficiency, transparency and predictability of our procedures, and reduced our case inventory. Engaging with our stakeholders has been instrumental in supporting this transformation. In particular, the new advisory group will help ensure the Board remains aware of market realities and stakeholder needs.

As highlighted in our report Modernizing the Copyright Board: Status Update - May 2023, I am concerned about the related and growing economic and regulatory gaps in Canada’s collective management ecosystem that demand urgent action. Copyright stakeholders are still adjusting to legislative and judicial changes, including the Supreme Court’s decision in York University v Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32. At the same time, the rapidly growing influence of AI on content creation and dissemination make the need for transparency obligations and access to credible market data even more urgent.

(highlight and emphasis added)

Some questions and comments:

·       Does the explicit reference to his “first term” suggest that he was expecting to be re-appointed for a second term?

·       Does he really expect much to come out of the “advisory group”? Several of them are counsel who have presumably lucrative practices before the Board. The vast majority of “users” have no meaningful, economical, or practical access to justice before the Board. As for ADR, that has been available for years. See Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0>  On behalf of Professors Ariel Katz and David Lametti (as he then was), I then persuaded the SCC that the result of the so-called “arbitration” regime was not binding even on willing parties to such hearings. Anyway, at least the Board mechanism for ADR under the current legislation doesn’t require paying an outside arbitrator or mediator, if that is what the Board is currently proposing.

The cost of operating the Board for the year ending March 31, 2025 was $5,674,097. That’s $638,343 MORE than was planned.  

Almost all of the Copyright Board’s tariff decisions are formulaic rubber stampings of previous tariffs without objection and with routine adjustments now and then for inflation. Even the Board doesn’t tout the “ confusing, arguably counterfactual and certainly counterintuitive” statistics suggested a decade ago in Jeremy de Beer’s very problematic 2015 study paid for by Industry Canada and Canadian Heritage.

There have been very few “inaugural” tariffs involving substantive issues since the launch of the modern Board in 1989 – and the Board has not fared well in the judicial review process of many of these decisions. I must confess to taking some credit for the Board’s embarrassing setbacks in its attempt to impose costly “levies” on the memory embodied in devices such as iPods, cell phones, and conceivably even computers. The CPCC (Canadian Private Copying Collective) wanted a “memory tax” that would have potentially amounted to $21,000 per terabyte.  So, for example, a 5 TB external hard drive that currently sells for about $224 at Best Buy would have a “tax” of $105,000 according to the CPCC arithmetic. The Board still props up the CPCC with a levy of $0.29 on blank  CDs as the CPCC bides its time waiting for better days. Does anyone know anybody who has bought any blank CDs in recent years, let alone use them for music? They are somehow still for sale. I think that the last time I ever used one was in a law firm many years ago to provide copies of very many and large files. That can now be done online or via cheap thumb drives. It’s impossible to believe that anyone still uses blank CDs to “ordinarily” record music. But the Board duly continues to keep this  “levy” alive and the CPCC on life support. Here’s the CPCC’s latest proposal for 2025-2027.

BTW, here's the THIRD judicial review application now underway in the Federal Court of Appeal in the Copyright Board's never ending undead Retransmission 2014-2018 saga that goes back at least a dozen years.

I’m old enough to remember the old Copyright Appeal Board. I wrote about this in 2019:

 This current Copyright Board “2.0” is the 1989 replacement for Canada’s then 53-year-old internationally admired and exemplary Copyright Appeal Board “1.0”, which was established in 1936 as a result of the legendary 1935 report of the Parker Commission. The Copyright Appeal Board consisted of a judge and two public servants, all of whom served part time. The secretariat services were provided on a part time basis by an employee in the predecessor of today’s Canadian Intellectual Property Office (“CIPO”). The Copyright Appeal Board had a mandate restricted to music performing rights societies – which then meant the two predecessors of SOCAN (which is itself the result of a merger that was permitted at about the same time as the new Board was created) and following the landmark 1988 revision of the Copyright Act.

See: The 30th (or 83rd?) Anniversary of Canada’s Copyright Board: Waiting for Version 3.0

The Copyright Board, with its ~$6 million budget which is less than a rounding error by most federal government measures, is clearly under the radar for long overdue reform. The Board states that “The total value of the royalties generated by tariffs approved by the Board was approximately $733 million in 2024, based on the annual reports of collective societies and internal Board estimates.”  The music business and copyright has often been said to be a “business of pennies.”  But those pennies add up to millions and billions for consumers. A handful of creators make a lot of money from this system, and most of the rest get occasional lunch money if they are lucky. And, of course, lots of lawyers, lobbyists, and executives do very well.

The music collectives still have way too much power, augmented by the availability of multiple  statutory damages. SOCAN has filed hundreds of lawsuits in the Federal Court. Thankfully, there are still bits of freedom at the “retail” level. My barber shop can still use an FM radio and not have to pay. The “double for dancing” wedding music “tax” is a relatively modest cost of such proceedings, all things considered, and most folks don’t get married very often. But SOCAN still has the unnecessary and potentially devastating weapon of being able to sue for three to ten times the amount of any “applicable royalties.” So be careful about allowing dancing at weddings.

And other unknown dangers still lurk. Somewhere some lawyer or lobbyist is dreaming of “tariffs” for AI ingestion and/or output, DVR storage, internet “tax”, or some other type of nightmare and, of course, Making Tariffs Mandatory Again. What could possibly go wrong?

HPK

The Blacklock’s FCA Appeal Hearing - October 7, 2025

 

The Federal Court of Appeal (“FCA”) hearing on October 7, 2025 in the Blacklock’s case was possibly the most unusual, if not bizarre, courtroom event I’ve ever seen.

The presiding Justice Wyman Webb started out by asking counsel for the appellant, Blacklock’s, even before he spoke, why the whole thing was not “moot”. He pointed out that Blacklock’s had long ago discontinued its copyright infringement action against the Attorney General (“AG”) and that the case being appealed was the result of the AG’s counterclaim. For those who may have forgotten the interesting procedural adventure that led to this result, see my blog about  Never Say “Never on a Sunday”. Has Blacklock’s Bottomed Out with Another Black Eye – Yet Again?

The Court repeatedly pointed out that Blacklock’s could only appeal the order issued below – and not the reasons for it. He pointed out that Blacklock’s had asked only that  “the Judgment of the Honourable Mr. Justice Roy dated May 31, 2024, be set aside” and had not asked for anything else from the FCA. There were no longer any copyright infringement issues on the table, given Blacklock’s discontinuance, and Blacklock’s had never sought a remedy for breach of contract.

Blacklock’s counsel was unsurprisingly surprised by the suggestion that the proceeding was now moot and spent a lot of time responding to questions from the bench about his lack of suggested relief other than setting aside Judge Roy’s order, which was this:

1.     It is hereby declared that, having purchased the only type of subscription available, which was allowing the acquisition of the password needed to access articles produced by Blacklock’s Reporter, Parks Canada’s use of the password in the circumstances of this case constitutes fair dealing under section 29 of the Copyright Act.

2.     It is hereby declared that the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act.

3.     There is no order as to costs.

Blacklock’s counsel spent a lot of time on such matters as Oxford commas but didn’t get to much of the meat in Blacklock’s written submissions. He asked repeatedly in the morning and later in reply at the end of the hearing if he could amend his submissions to deal with other possible relief and adjourn to reconvene the hearing at a later date to deal with TPMs.  As for the fact finding and evidentiary rulings by the very careful Judge Roy below, it goes without saying that these things cannot be challenged in the absence of palpable and overriding error.

The AG pointed out that that Justice Roy’s order had “utility” and would be useful in the 14 or so other pending Blacklock’s cases where the facts might be similar and where issue estoppel might apply. CIPPIC spoke extremely briefly, although it could have addressed the Court at length, given the Court’s direction on timing and the AG’s comparatively brief submissions It did not address any of the substance in its factum.

The Court reserved and promised an early result. They did not quite rule from the bench. Oddly enough, one of the judges seemed to leave open the possibility of further submissions – though this would be extraordinary and unheard of to my knowledge.

IMHO, the logical and useful result would be for the FCA to simply deny the appeal on the basis that no palpable and overriding errors of fact or legal errors had been established.

What this would mean for future cases would, of course, depend on the facts of those cases.

Of course, one might wonder whether, even if Blacklock’s unexpectedly pulls a rabbit out of a hat, it has the resources and the will to press forward, given its long litany of losses in unresolved but similar litigation. Blacklock’s counsel pointed out several times that it had spend “hundreds of thousands of dollars” on this case. BTW, this case was started almost TEN YEARS AGO with a Statement of Claim filed on November 4, 2015. There have been 22 Blacklock’s copyright actions filed in the Federal Court going back more than 11 years. It has not won any of them. Blacklock’s plea that it is David fighting Goliath may be interesting to some people, but it is not a legal argument. Blacklock’s is the author of its own business model and its litigation strategy, which has thus far been nothing but a litany of losses.

HPK

(as usual, not legal advice)

Blacklock’s Unappealing Appeal (To Be Heard on October 7, 2025) + An AI Prediction

 

The Blacklock’s case (A-267-24) is coming before the Federal Court of Appeal on Tuesday, October 7^th, 2025, at 9:30 AM. One can observe it virtually by registering here: https://www.fca-caf.ca/en/pages/hearings/upcoming-hearings. Or one can also attend in person at 90 Sparks St. 10^th floor in Ottawa. Allow time to go through security.

I’ve mentioned Blacklock’s in my blog many times over nearly a full decade. I’ve  recounted its very long litany of losing litigation in the Federal Court going back to 2015. See: Copyright Trolling in Canada: Is Blacklock’s a Copyright Troll & "Frequent Flyer" Litigator? https://excesscopyright.blogspot.com/2015/10/copyright-trolling-in-canada-is.html

Here are the factums for the hearing next week and my very brief comments, which I’ve posted before in Blacklock’s Aspirational Appeal Advancing: https://excesscopyright.blogspot.com/2025/02/blacklocks-aspirational-appeal-advancing.html

I suggested then that:

IMHO:

·        What the Government did was clearly fair dealing and did not infringe copyright.

·        CIPPC is right that “entering a valid and licitly obtained password to access password-protected content does not “circumvent” a TPM”.

·        CIPPIC is right that TPMs do not trump fair dealing as a matter of law.

I would add now a couple of comments I made at the Legacy of CCH conference held in Toronto on September 19-20, 2025 to the effect that:

·       No animals and no TPMs were harmed by the Government’s activity. No password was circumvented. The trial judgment, per Justice Roy,  declared that “ the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act.” See:
1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>. Justice Roy is a very careful judge, as I well know only too well having lost an important decision on an unrelated matter before him, which I unsuccessfully appealed. BTW, the FCA doesn’t overrule findings of fact or mixed fact and law unless those findings entail “palpable and overriding error”. See: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235, <https://canlii.ca/t/51tl>

·       As the Supreme Court of Canada declared in the landmark ruling in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339, <https://canlii.ca/t/1glp0>:

48  Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement.  Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright.  The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.  As Professor Vaver, supra, has explained, at p. 171:  “User rights are not just loopholes.  Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”

(highlight and emphasis added)

The jurisprudence and the factual record suggest that Blacklock’s will lose the appeal. But don’t take my word for it. Here’s what the free version of CHAT GPT predicted when I asked it on September 9, 2025 about the likely outcome of the appeal. BTW, this is a remarkably good analysis that only took about two seconds and, interestingly, it twice cites to my blog – so it must be right 😉.

Spoiler Alert: CHAT GPT predicts that the outcome will be:

1. Appeal dismissed.
2. Federal Court decision affirmed in all respects.

We will watch to determine if CHAT GPT was just as smart or maybe even smarter than this non-practising lawyer/policy provocateur who is NOT giving legal advice here.

HPK

CCH Legacy Conference 2025 – My Slides

I’ve just come back from speaking at an excellent conference on The Legacy of CCH Canadian Ltd. v. Law Society Of Upper Canada and Future of Copyright Law Conference 2025 on September 19 and 20, 2025.

Despite the noble efforts of the organizers, there were a couple of disappointments. The Rt. Hon. Beverley McLachlin, who wrote the CCH decision and who was expected to speak at the beginning of the conference, cancelled just prior to the event. Another was the absence of David Vaver, perhaps the most widely read and cited author and authority of the Canadian copyright law academy.

“The Panel Recordings will be available soon! Stay tuned!”

In the meantime, here are my slides from my presentation entitled “To “Actualize” Users’ Fair Dealing Rights: Guidelines If Necessary But Not Necessarily Guidelines” – which I hope to expand into a useful paper in due course for the expected compilation publication resulting from the conference.

HPK

Access Copyright + Copibec: Their Offensive Budget Bluster

As an affiliate of Access Copyright, from whom I annually receive enough for a nice lunch for one or a rather modest lunch for two, I also get Access’s Updates. Here’s the latest from September 2025. Note this passage towards the end:

Access Copyright and Copibec Make Joint Submissions for Federal Pre-Budget Consultations

Access Copyright, in collaboration with Copibec, the reproduction rights organization for Quebec, participated in the pre-budget consultations undertaken by the Standing Committee on Finance and the Department of Finance in advance of the tabling of the 2025 federal budget this fall.

In both submissions, our organizations made four recommendations, reflecting the growing importance of implementing a regulatory framework for the fair and responsible development of Generative AI (GenAI) in Canada as well as the continuing need to repair the educational marketplace for published works.

Our recommendations are:

·        That compliance with the Copyright Act be an obligation of any normative framework concerning GenAI.

·        That no exceptions for text and data mining be introduced to the Copyright Act.

·        That transparency requirements for AI training be included in any normative framework concerning GenAI.

·        That the government amend the Copyright Act to clarify fair dealing for education, make tariffs set by the Copyright Board of Canada mandatory and enforceable, and ensure statutory damages are available to all collectives.

(highlight added)

These recommendations do not belong in a budget. Budgets are for important fiscal announcements that deal with financial issues affecting Canada as a whole. They are not for the purpose of hiding and deflecting attention from self-serving senseless lobbying efforts aimed at enriching narrow corporate interests and burying such initiatives deep in omnibus legislation where they can escape adequate parliamentary scrutiny.

Justin Trudeau shamefully resorted in 2022 – contrary to his explicit promise to the contrary – to using the budget process to hide bad copyright legislation amidst and omnibus legislation. See Oops! He Did It Again: Budget 2022 Hides Copyright Time Bomb By Throwing Parliamentary Scrutiny Under the Omnibus Bus. Trudeau caved then to the copyright content crowd.  Let us hope that PM Mark Carney will NOT repeat that shameful error in the budget expected on November 4^th, 2025. The unexpected, early, and regrettable departure of David Lametti as Principal Secretary to the Prime Minister removes a potentially highly principled and expert source of wise advice.

The Access Copyright and Copibec proposal to make tariffs mandatory and enforceable with statutory damages is drastic, indefensible, and contrary to very longstanding legislation and Supreme Court jurisprudence.

Trying to sneak this into the budget process is indefensible and, indeed, extremely offensive. And I’m not using the word offensive in the strategic sense of aggressive but rather in the more fulsome sense of disgusting and deplorable.

HPK

 

Universities Canada’s 2025 Unpublished Final Fair Dealing Guidelines

So it seems like there will be no puff of white smoke from Universities Canada (“UC”) about its new long-awaited fair dealing guidelines that were announced at the recent ABC conference on April 30, 2025. A spokesperson for UC then suggested that we would see the guidelines in a week of two.

UC has been working on fair dealing for better or worse – mostly for worse IMHO– for decades. I’ve written about this at great length on my blog, including several posts when UC was called AUCC. For a long time, AUCC – now UC – actually used the same law firm as CanCopy – now called Access Copyright. AUCC/UC’s strategies and published documents on fair dealing very nearly resulted in snatching defeat from the jaws of victory in the York University saga, which finally ended with a win  for York in 2021. That win was frankly based significantly on intervener submissions by Sana Halwani on behalf of Prof. Ariel Katz and myself on behalf of CARL.

Anyway, it seems that UC has finally sent out its final guidelines to various institutions but has, for whatever reason, refrained from publishing them on its website. Apparently, there was a long consultation and at least two law firms were involved. If the guidelines were really good and UC was really confident about them, why wouldn’t the document be published by UC on its website?

IMHO, which is NOT a legal opinion,  the guidelines are arguably not really good. In fact, they are arguably quite problematic. Here’s a few reasons why:

There is no discussion of the concept of “substantial”, which is a key threshold built into s. 3 of the Copyright Act. It’s also a threshold issue for any discussion of copyright in the academy. If what is copied is not “substantial”, there’s no need to even think about copyright and fair dealing, much less to waste the time of expert librarians or copyright counsel. For example, a few sentences or even a few paragraphs out of a book or journal article are rarely, if ever, going to be “substantial”.  It’s always a question of degree and context. Of course, there must always be proper citation – but plagiarism and copyright infringement are two different things which may, but do not necessarily, overlap – which any good guidelines should make clear.

A key part of these guidelines makes no logical or grammatical sense, i.e.:

1. The copy must be a “Short Excerpt” containing no more of a Work than is required in

order to achieve the Allowable Purpose, which is either:

(a) up to 10% of a Work; or

(b) no more than:

(i) one chapter from a book;

(ii) a single article from a periodical;

(iii) an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart and plan) from a Work containing other artistic works;

(iv) an entire newspaper article or page;

(v) an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work,

whichever is greater.

(highlight and emphasis added)

How, for example, I wonder, how it makes any sense to say that one can copy “up to 10% of a Work” OR “a single article from a periodical”  or “up to 10% of a Work” OR  an  “an entire entry from an encyclopedia” - whichever is greater?

Another issue is this:

5. Teaching Staff and Other Staff may not obtain a Work for copying under these Fair Dealing Guidelines by circumventing a technological protection measure (commonly referred to as digital locks), such as a paywall.

This appears to ignore, or at least greatly oversimplify, an important recent ruling of the Federal Court which holds that:

It is hereby declared that the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act.

See 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>. That decision is under appeal, but I would frankly be very surprised if the appeal were to succeed.

Another issue, not even addressed, is that merely linking, without more, should not entail copyright concerns. The Supreme Court of Canada has ruled that merely linking is NOT publication. This was in the context of defamation, but there’s no reason to assume that the principle would not apply to copyright infringement.  Linking to something posted legally should be safe. See Crookes v. Newton, 2011 SCC 47 (CanLII), [2011] 3 SCR 269, <https://canlii.ca/t/fngpv>.

Still another issue arises from this:

3. A single copy of a Short Excerpt from a Work may only be provided to students registered, enrolled or engaged in a course, unit or program of academic, continuing, professional or vocational study administered or hosted by the University, which may include a person who is granted deferred standing in a course, as follows:

a) as a class handout;

(b) as a posting to a learning or course management system that is password protected or otherwise restricted to, and accessible only by, students in the specific university course, unit or program (in each case, a “LMS”); or

(c) as part of a course pack compiled by the University bookstore or another entity or department controlled by the University,

and it is recommended (if practical) that each such copy, or the LMS, includes a notice indicating that Short Excerpts are being copied in reliance on the Fair Dealing Right, and advising students to only use materials for their personal Allowable Purposes, and not to communicate or share materials with others.

(highlight and emphasis added) 

I fail to understand why a university student or professor cannot publicly post outside the realm of the academy, for example on a blog or in a journal or any other public forum, anything that is permitted by fair dealing.

Overall, these guidelines seem to be a step backwards, even from the 2012 U of T Fair Dealing Guidelines, with which I was very much involved. It is now 2025 and the York decision, which strongly encouraged guidelines, is now nearly four years old.  One might expect to see fair dealing actualization motivated by the concepts of safe harbours and enablement, rather than inhibited by  excessive risk aversion, caution, and deference to now illusory threats. In that decision, Justice Abella stated:

At the end of the day, the question in a case involving a university’s fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators’ rights in the Act.

(emphasis added)

Universities Canada is a worthy and important organization. But it is not the only organization concerned with copyright and post secondary education in Canada. Other organizations may wish to look at guidelines for actualizing fair dealing. And, of course, individual institutions can show unilateral initiative, as did U of T in 2012 under the leadership its former President David Naylor and General Counsel Steven Moate, both now retired.

Whether we actually even need “guidelines” in light of the several user friendly decisions from  the Supreme Court of Canada is a potentially interesting question and inspired me to title my recent talk and blog “To “Actualize” Users’ Fair Dealing Rights:

Guidelines If Necessary But Not Necessarily Guidelines”. However, there seems to be a strong appetite for guidance through guidelines. It would seem obvious that whatever may or may not emerge should surely be good guidelines.

 HPK. Not legal advice.

To “Actualize” Users’ Fair Dealing Rights: Guidelines If Necessary But Not Necessarily Guidelines

 I recently spoke to the very worthy ABC Copyright group, which has been holding conferences since 2003, to which I’ve often contributed. My topic this year was:

To “Actualize” Users’ Fair Dealing Rights:

Guidelines If Necessary But Not Necessarily Guidelines

This and several other presentations, including a keynote from Sara Bannerman, are available at the conference archive here:

https://dalspace.library.dal.ca/collections/241d04d2-aa6d-4618-86cc-df08b1221741

We did have a brief appearance at the conference from Universities Canada, from which we have long been waiting for an updated version of its outdated and problematic fair dealing guidelines and documents. I shall let you know if and when we see some white smoke from that source.

The notion of actualizing user’s fair dealing rights flows from Justice Abella’s landmark Supreme Court of Canada ruling in the York University case from nearly four years ago, in which I was honoured to act for the intervener CARL with what turned out to be a very influential intervention. Here’s the decision:

York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), [2021] 2 SCR 734, <https://canlii.ca/t/jh8bc>

Here’s the webcast: https://www.scc-csc.ca/cases-dossiers/search-recherche/39222/

Here was Justice Abella’s closing comment from the decision:

[106]  At the end of the day, the question in a case involving a university’s fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators’ rights in the Act. Since we are not deciding the merits of the fair dealing appeal brought by York, there is no reason to answer the question in this case.

(highlight & emphasis added)

HPK

Blacklock’s Aspirational Appeal Advancing

 

I’ve written earlier about the Blacklock’s appeal. The Attorney General has filed its Respondent’s memorandum on January 20, 2025. It makes all the essential points.

CIPPIC has now filed its Intervener’s memorandum on February 19, 2025, which covers a lot of ground in its allotted 20 pages. Once again, I am delighted to see myself cited as an authority.

For readers’ convenience, here once again is Blacklock’s “bombastic” Appellant’s memorandum filed on December 2, 2024.

IMHO:

• What the Government did was clearly fair dealing and did not infringe copyright.
• CIPPC is right that “entering a valid and licitly obtained password to access password-protected content does not “circumvent” a TPM”.
• CIPPIC is right that TPMs do not trump fair dealing as a matter of law.

HPK*

* with a reminder, as always, that none of this is legal advice

PS - the appeal will be heard by the Federal Court of Appeal in Ottawa on October 7, 2025. https://www.ippractice.ca/file-browser/?fileno=a-267-24 

Fantasy & Fiction about Fair Dealing in Canada: Access Copyright’s Strategic Plan 2025 - 2028

Access Copyright (“AC”) has recently published its Strategic Plan 2025 - 2028 which states that:

The plan outlines the four complementary strategic goals we will be working towards for the next three years; all are critical for Access Copyright as we work to build a sustainable future for the organization.

Is Access Copyright's "Strategic Plan 2025" that talks about "new business amongst corporate clients" anything more than aspirational fantasy? AC will need more than a slick website and management clichés such as “We will put more emphasis on outcomes than outputs” in order to get corporate “clients” after a more than two-decade litany of litigation defeats in the Supreme Court of Canada & the Federal Court.

It is unclear whether the past unnecessary and arguably sweetheart deals with the federal and provincial governments are still ongoing, and if so, why. Indeed, it was such deals that got AC started in the 1980’s. Needless to say, bad decisions in the past need not be repeated in the future. Governments and businesses are absolutely entitled to the “users’ rights” that are provided by the fair dealing provisions in s. 29 of Canada’s Copyright Act. It is government’s job to be competent and well informed and this requires extensive “research”. Likewise, for businesses large and small.

AC continues to spend its vanishing credibility and much depleted financial resources on fanning the fiction that its precipitous decline in revenues since 2012 is the result of the legislation that year that included the word “education” in s. 29 of the Copyright Act. That change, along with the inclusion of “satire and parody” essentially confirmed very longstanding case law and common sense. It brought Canada closer to the still more user friendly “fair use” provisions in American law. “Fair dealing” in Canadian copyright law didn’t happen overnight in 2012: it has been explicitly provided in our Copyright Act for more than a century.

This is from AC’s comments on its 2023 annual report: Access Copyright

Charting the Impact of Fair
Dealing for Education
(2012-2023)

EDUCATION REVENUES*

*Revenue totals do not include the following:

• Retroactive K-12 royalties recognized in 2012 and 2013 that were payable for the years 2005-2009;

• Royalties recognized in 2022 and 2023 collected from post-secondary institutions under the 2011-2017 tariff. The vast majority of these royalties relate to the year 2011.

Retroactive K-12 royalties collected in 2019 have been allocated to 2012-2017 representing the years in which they were payable.

The main reason that AC’s educational revenues have fallen so precipitously is that, beginning in about 2012, educational institutions realized, following persistent and persuasive advocacy led primarily by Prof. Ariel Katz and also myself, that its tariffs set by the Copyright Board were NOT MANDATORY and its licences not only offered very little, if any, value but simply weren’t necessary. See Ariel Katz’s Fair Dealing’s Halls of F/Sh/ame blog from 2012 The non-mandatory aspect was conceptually confirmed by the Supreme Court of Canada in CBC v. SODRAC in 2015 and very specifically confirmed in York University v. Canadian Copyright Licensing Agency  in 2021. Ariel and I made the prevailing arguments by way of interventions in both cases. I appeared as intervener counsel in both cases, and Ariel was represented by Sana Halwani in the York case. Prof. David Lametti, as he then was, was on our team in the SODRAC case.

None of the court decisions that have gone against AC, including the York decision from the Supreme Court, turned on the addition of the word “education” in s. 29 of the Copyright Act. See my 1923 detailed blog about A Fair Deal for Fair Dealing. At that time, I pointed out that: “ key Canadian SCC fair dealing decisions, including the landmark 2012 Alberta v. Access Copyright and the SOCAN v. Bell  iTunes preview cases, were decided on the pre-2012 law that goes back to 1921 before the word “education” was added to s. 29.” I also stated then that “The PSE sector is spending more money than ever though acquisitions, direct licensing, and dealing with the much more responsible and responsive American Copyright Clearance Center for transactional licences. Access Copyright is notoriously inefficient in its distribution, offers very limited “rights”, and its repertoire is focussed on Canadian literature – which is not a major component in the PSE sector.” So, copyright owners are getting payments to which they are entitled – but just not via AC.

The importance and influence generally and in the courts of Ariel Katz’s two landmark “Spectre” articles has been immense. See Ariel Katz:  Spectre: Canadian Copyright and the Mandatory Tariff - Part I and Spectre: Canadian Copyright and the Mandatory Tariff - Part I.

In 2024, AC badly lost a major Federal Court decision that it did not even try to appeal that required it to refund g $28,279,000 plus legal costs to the CMEC K-12 consortium. I wrote about it here.

Fair dealing – which is a cornerstone of “users’ rights” and is “always available” as taught by the Supreme Court of Canda in the landmark CCH decision – is spelled out in Canada’s Copyright Act:

s. 29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

A business, whether it is a small law firm or a giant bank, is entitled to undertake “research” in order to go about its business. The fact that a business is in business to make money does NOT prevent it from relying on fair dealing, as the Supreme Court of Canada has twice confirmed. Fair dealing may entail making copies of stuff for research purposes, consistent  with the six CCH factors “that could be considered to help assess whether a dealing is fair”:

(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.  Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases.

Sharing of material internally for research purposes in a commercial setting has been validated by numerous court decisions, even when the material was behind a paywall and obtained via the “licit” use of a password, as Blacklock’s has learned to its chagrin in a recent Federal Court decision from which it has filed a Hail Mary appeal that is unlikely to succeed IMHO.

See also the SCC’s comments on “aggregate” copying in the York University case. And it should go without saying but seems to be necessary to restate again and again that copying that is not “substantial” doesn’t even engage the Copyright Act. Nor does merely linking engage the Copyright Act.

So, AC may be dreaming in virtual reality if it thinks that Canadian businesses are going to voluntarily pay a licence fee for their normal research activities. Potentially misleading information addressed to various business sectors on AC’s website is not helpful, e.g. BioTech, Pharma Firms, & Life Sciences and other sectors.

As always, there’s the proverbial question of whether AC actually has a viable chain of title to all or even much of the repertoire it purports to be able to licence. BTW, for those business determined to spend their money somehow, I have a very nice bridge to Brooklyn that I’m willing to sell for the right unreasonable price.

If AC wants to be the proverbial delusional dog persisting in chasing the legislative car to amend s. 29, it should be careful what it wishes for – especially if it catches that car. There are overdue changes to s. 29 that would expand Canda’s fair dealing provision to make it as generous to users as the American “fair use” version in 17 USC 107. If the next Government unwisely opens up that Pandora’s box at AC’s behest, there will be strong calls for:

• Inclusion of the words “such as” in the list of fair dealing purposes;
• Confirmation that fair dealing applies to material behind a licitly accessed paywall;
• Confirmation that fair dealing rights cannot be trampled by contract;
• Addition of TDM access for the purpose of AI technology; and,
• Etc.

In the unlikely event that the next government should reopen s. 29, it would be likely be  a “make my day” moment for users’ rights in Canada.

Likewise, if AC attempts to litigate in order force businesses to enter into useless and unnecessary licences.

HPK*

*with a reminder, as always, that none of this is legal advice