The Appointment of Giuseppina “Pina” D’Agostino to the Federal Court

 

The appointment of Giuseppina “Pina” D’Agostino to the Federal Court  is great news! The Federal Court, where most of the important intellectual property cases in Canada are heard, has had only a few judges who come mainly from the IP world.  

Prof. D’Agostino has had a prolific, prominent, and influential role in the IP academy and particularly in copyright law. She was the Founding Director of IP Osgoode, and organized provocative and balanced events  – for example this conference on the aftermath of the Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0>  decision. I was honoured to have participated both in the SCC hearing and the subsequent IP Osgoode event. That SODRAC decision was crucial in turn to the decision in York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), [2021] 2 SCR 734, <https://canlii.ca/t/jh8bc>  which held that Access Copyright’s “tariffs” on educational institutions are not “mandatory”.

Her 2008 article Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use  proved to be very influential in the SCC decision in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (CanLII), [2012] 2 SCR 345, <https://canlii.ca/t/fs0v5>. See para. 19. This was the only academic article cited by the Court. It was a balanced and prescient comparative analysis of fair dealing.  I am reminded that the intervener factum that I filed  with Prof. Ariel Katz for the intervener Centre for Innovation Law and Policy of the Faculty of Law University of Toronto was the only factum in that important case to include her important article (see para. 21). Permit me to point out that she cited me twice in that article.

Her legacy at Osgoode Hall Law School is in the capable hands of her colleague Prof. Carys Craig. Both follow in the footsteps of the illustrious emeritus Prof. David Vaver.

This is a very welcome appointment. We congratulate the Hon. Giuseppina D’Agostino and wish her all the very best. We look forward to her jurisprudence for many years to come.

HPK

 

Much Ado About Access Copyright, the Copyright Board and York University

There were at least four items of interest online in the last couple of days:

Here's my blog entitled:

AC & the Post-Secondary Tariff: “And Then There Were None”? - or - “It Ain’t Over Till It’s Over”?

Here's a University Affairs ("UA") article entitled:

Access Copyright lawsuit against York is first test offair-dealing guidelines: The outcome of the case could have wide-reachingimplications for Canada’s educational institutions.

Frankly, this UA piece completely misses the point about the "mandatory" tariff issue, i.e. whether any tariff from the Board becomes wholly enforceable for potentially millions of dollars as soon as there is one instance of infringement for which a university is responsible, however trivial, in just one work in AC’s repertoire. This is the overwhelming point of AC’s litigation, as I explain in my blog above. The article also serves to confirm that that York and AUCC are willing to put the AUCC fair dealing policy on trial, which may not be either necessary or advisable. [It may be noted that UA is published by the AUCC.]

The article also contains some interesting quotations from certain influential people. It quotes Christine Tausig Ford, vice-president of AUCC as saying “This case is the first test of fair dealing in higher education, and is expected to set the ground rules for fair dealing at the university level in Canada.” That fact is that that the Supreme Court of Canada in the Province of Alberta case did not distinguish between the K-12 and university levels in terms of what constitutes fair dealing. Nor is there any need to seek such a distinction. The Court has also made it clear in three cases that “research” is “research”, whether it is done by a law firm, a K-12 student, a potential iTunes customer or simply anyone with a curious mind and “personal interest”.  Any distinctions, if any are necessary, should evolve through best practices and sophisticated and nuanced policies. Why tempt fate in the crucible of a court and why risk snatching defeat from the jaws of victory when the mandatory tariff issue could be dealt with without putting the AUCC/York fair dealing policy on trial?

Likewise, Wanda Noel (lead counsel for ACCC) is quoted as saying: “This case is really about what is a short excerpt”. This, too, misses the point if she is suggesting that York should seek a decision based on or even necessarily dealing with this issue. This case is “really” about the “mandatory tariff” theory. No matter how the case unfolds, there should be no need for a ruling on what “short excerpt” means. In fact, the Supreme Court of Canada has clearly stated that it can sometimes be fair to copy an entire work. Once again, why would York or any defendant want to incur an unnecessary risk by seeking a judicial ruling about something that doesn’t need to be decided or defined? When one asks for an unnecessary “bright line”, one should be careful what one wishes for. The result could be a much worse than expected bright line or, in this case, a bright line formula that could become a ceiling rather than a foundation.

Another interesting thing about the article is that it suggests that the initial budget for the AC v. York litigation is at least $500,000. Is this because York may be allowing this lawsuit to morph into a de facto infringement action for dozens of alleged infringements, and extensive discovery even though it is not and could be an “infringement” action with Access Copyright as the only plaintiff? (AC can’t sue for infringement since it isn’t a copyright owner or an exclusive licensee. An exlusive licensee can sue but must join the owner in the litigation). This makes one wonder even more why no early attempt was even made to bring a relatively simple, inexpensive and quite possibly successful motion to strike some or all of the pleadings as disclosing no cause of action. But now that pleadings have closed and York has “pleaded over” to virtually all of AC’s issues, there may no longer be a quick exit for York from this litigation.

Finally, the article misses the fact and the implications of AUCC’s and ACCC’s withdrawal from the Copyright Board hearings, for which no concession was apparently obtained and in which the Board will proceed without hearing anything from university or college administrations in Canada. This is truly an extraordinary situation that could lead to very negative consequences for the educational sector in Canada at all levels, as I wrote about in my blog above.

Indeed, there was much more online a couple of days ago about Canadian copyright. Here are a couple of other postings from the Wire Report – which is very influential here in Ottawa – about the need for Copyright Board reform. It quotes Ariel Katz, Carys Craig and yours truly.

Experts call for sweeping review of Copyright Board | The Wire Report [note "correction" at end of story]

And then, there was this, in which I suggest a "baker's dozen" of issues concerning the Copyright Board that could conveniently be addressed with regulations, in contrast to the much more complicated process of new legislation:

Our total payments to copyright collectives? About $500m annually, Knopf says – The Wire Report Blog

HPK