Supreme Court of Canada to Announce whether leave to be granted in CSI "Authorization" case

I was speculating about five weeks ago about whether the Supreme Court of Canada (SCC) would grant leave to appeal in this case:

CMRRA-SODRAC Inc. (CSI) v. SOCAN, Sirius, Canadian Satellite Radio Inc., et al. (SCC no. 34092).


This involves SOCAN and CSI, and the issue of the territorial scope of the Copyright Act, and consideration of what constitutes the “authorization” of a reproduction of a work. At the current time, there is no summary on the SCC website.The Court will announce this Thursday Oct 20 at 9:45 AM whether it will grant leave to appeal in this case. 

If leave is granted, it will be interesting to see if this case is added to the already uniquely busy schedule of five (5) copyright case scheduled for two days, namely December 6 and 7, 2011. The only obvious aspect in common in all five of these cases is that they emanate from the Copyright Board.


The SCC can compress schedules and abridge normal time limits. However,  at this point, such an abridgment would require compressing a series of steps that normally takes about six months into less than two months. 


HK

Bill C-11: Locks, Limits, Levies, Litigation & Now RIP “Rip, Mix & Burn”

I’ve been thinking a lot about Bill C-11. And now about the death of Steve Jobs. 

If laws about digital locks like Bill C-11 had been in place in 1980, we would have never seen the astonishing evolution of the “Rip, Mix and Burn” zeitgeist that Steve Jobs created. Not only has Apple gone from the brink of bankruptcy two decades ago to become the world’s very most valuable company at various recent times on the stock exchanges. It's also incontrovertible that Steve Jobs changed the world in the process - and much for the better.

“Rip, Mix & Burn” became an iconic mantra. Laws like Bill C-11 would have made much of what “rip, mix and burn” was all about illegal. Here's the transcript of a brilliant and prescient 2004 lecture by Princeton' celebrated Prof. Ed Felten about "Rip, Mix and Burn", and efforts to stifle the notion through copyright law. He makes a number of references to Apple. And when he talks about the promise of a future with a "universal media machine", just substitute the term "iPad". Prof. Felten asks in 2004 whether society should embrace the change that could come from the "universal media machine", and the spirit of the "Magna Carta" Betamax US Supreme Court decision of 1984, or whether we resist it.

So will Bill C-11 be Canada’s RIP to “Rip, mix and burn”?
       
So, here are some of my thoughts about Bill C-11, which would accomplish many good things but still has a few serious problems:

1.    The Digital Locks (TPM) measures continue to divide Canadians and to defy consensus. There are stronger than required by the WIPO treaties and stronger than necessary or desirable to serve any essential purpose. There are arguments made by credible people, such as Prof. Jeremy DeBeer, who is a respected academic and who is not a lobbyist,  that these provisions may even be unconstitutional.

2.    The Bill will not encourage innovation because it actually inhibits it overall. How does making it illegal to bypass a regional code to watch a perfectly legitimate imported Bollywood DVD that is not be available in Canada going to encourage innovation? (Note that market segmentation and price discrimination are not the same thing as innovation). Or making a backup copy of an expensive BlueRay disc or video game in case the family dog,  or a frolicking four year old, or a clumsy adult should accidentally destroy it? How does “book burning” in educational institutions encourage innovation?   

3.    How does making devices and content so difficult and finicky to use because of digital locks encourage innovation? Why tether content that has been paid for to specific devices or even types of devices? How many times must consumers pay once again for the same content every time their media or devices become lost, broken, or obsolete?

4.    How can Bill C-11 be said to be viable for now and for the future when it still hasn’t caught up to the American law from almost three decades ago, for example the landmark 1984 Supreme Court Betamax decision? The USA has long had less restrictions on time shifting than Canada’s proposed legislation would allow. And remote network personal video recorder technology, aka NPVR, held by the courts to be legal in the USA, would very likely be found to be illegal under Bill C-11, or require more Copyright Board hearings and court cases, and tariffs that would be so prohibitively expensive that Canadians would be denied, yet again, the benefit of another breakthrough in technology, or "taxed" for its use.

5.    It is arguable that if something like Bill C-11 been in place in 1980, we may never have seen the VCR or anything resembling modern PCs, iPods, tablets, etc. 

6.    And if Bill C-11 had been in place in 1980 and Apple had been a Canadian company, one would have never even heard about “Rip, Mix and Burn”.   

7.    Why will Canada continue to have multiple layers of rights for the same transaction that result in multiple payments and an incredibly confusing labyrinth of layers of tariffs and endless and ultra-expensive Copyright Board hearings that may have been instrumental in frightening away some very attractive services from Canada that are enjoyed in the USA and elsewhere?  The Copyright Board takes the view that every right in the Copyright Act can give rise to a new tariff - and that each tariff must be valued separately. The US Courts go to great lengths whenever possible to avoid this result, as we have just seen in the ASCAP case, where the Courts distinguish between performance”, which can be licensed by ASCAP, and “communication”, which cannot.  The Canadian Supreme Court will consider a very similar issue on December 6, 2011.

8.    Meanwhile, the Canadian Copyright Board has taken the position that each “right” gets a separate tariff.  Needless to say, the beneficiaries of this additional layer of rights and arguably redundant tariff will mostly be American interests.

9.    What would be the effect, if any, of the inclusion of the word “education” in the s. 29 fair dealing provision of the Copyright Act? 

10.    Will the inclusion of a special education exception for using publicly available material in educational institutions be necessary or even helpful? Do we need additional laws to confirm that educators and students can do what the law already allows them to do? And would such a law not suggest that it would NOT be OK for others (i.e. ordinary users working at home or in their office or students and teacher off campus) to do so? And, if that is the case, would such a law not play straight into the hands of Access Copyright and other collectives eager to license as much internet activity as possible?

11.    Why is Canada copying some of the least desirable features of US law and ignoring some of its better features, such as an explicit exception confirming users’ rights to fair use for teaching (including multiple copies for classroom use) and scholarship? The Americans also have an explicit exception confirming that record stores and electronics retailers need not pay stiff tariffs for playing CDs that they are trying to sell and demonstrating the equipment required to enjoy these CDs.  Why is Canada not eliminating market-distorting “taxes”, as Ministers themselves have called them, for the private copying of sound recordings, when the USA, Australia and the UK have categorically rejected such "taxes"?

12.    In fact, there are more than 21 ways in which Canadian laws are already stronger than American laws, most of which result in Canadian money going south.  Why would we add more than necessary to this already lopsided list?

13.    It should be remembered that copyright law is almost invariably a one-way ratchet. Rights given can rarely be taken away without enormous political and/or legal ramifications.

14.       And let's avoid excess complexity. Bill C-11 is really complicated. An ordinary Canadian household - much less a school or an SME business - should not require a resident copyright lawyer to get through the day without risk of serious litigation. And if that risk, however remote for practical purposes, is there but ignored, the law falls into disrepute. Laws that are too complicated to understand by those to whom they apply and which, when they are finally understood, make commonplace, socially acceptable and beneficial behaviour illegal are not wise.

15.    Therefore, we need to get it right. The Government has been listening for a long time and working quite hard on this. But the Government is still listening too much to certain sources whose economic interests run counterproductive to what is best for Canada and Canadians.

16.    Let’s take a few more months, listen to the Supreme Court of Canada (which brought us the landmark CCH v. LSUC decision and many other excellent copyright rulings), and get this bill right.

All that said, here are a couple of my early media comments on Bill C-11:

An interview on September 30, 2011 by Dave Rutherford, the top rated radio talk show host in Alberta who speaks for a lot of people. He evidently holds even stronger views that mine. And if it hasn’t been obvious for a long time, Ottawa, Toronto and Montreal need to pay attention to what’s happening in Alberta. From Nenshi to Redford to Rutherford to Prime Minister Stephen Harper to numerous rebellious librarians, something is happening out there. It’s time that the rest of Canada pays attention.

A perceptive article by Jennifer Brown in the influential Canadian Lawyer magazine, which quotes me at some length as to why the Government ought to wait to hear what the Supreme Court of Canada has to say about the five cases it will hear on December 6th and 7th, 2011 before it rushes, for no apparent reason, to pass Bill C-11 before Christmas. 

Conclusion:

The responsible Ministers, particularly the Honourable James Moore who is both tech savvy and culturally attuned, have worked long and hard on this file. They really mean well. However, they have been badly advised in many respects - mostly by lobbyists and diplomats who have no concern whatsoever with Canada’s best interests, though I’m sure they to purport to speak for “Canadian artists”.  The Ministers should listen instead primarily to those who genuinely wish to help them help Canadians to do what is best for Canada. If the Ministers do so, Canadians will be very grateful. If they don’t Canadians will be very disappointed.


It’s high time for a “time out” while we wait to hear what the Supreme Court of Canada has to say in the five (5) cases that will be heard in a few weeks.  And consider whether we want embrace all that is good about "Rip, Mix and Burn" or repress it.


HK

Supreme Court of Canada to Hear Another Copyright Case

The SCC has granted leave to appeal in yet another case involving copyright - though, unlike the five currently pending cases, this one doesn't come from the Copyright Board.

This is based upon the CRTC's proposed "value for signal" regime.

Here's the Court's "summary" of the case:

The Canadian Radio Television and Telecommunications Commission (CRTC) referred the following question to the Federal Court of Appeal:

Is the Commission empowered, pursuant to its mandate under the Broadcasting Act, to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local television stations?

The regime to which this question refers is sometimes called the “value for signal” regime, which would permit a private local television station to negotiate with cable television service providers (“broadcast distribution undertakings” or “BDUs”) for an arrangement under which the BDUs provide consideration to the television station for the right to retransmit its signals. The CRTC has determined that such a value for signal regime is necessary to ensure the fulfilment of the broadcasting policy objectives set out in s. 3(1) of the Broadcasting Act. The operators of private local television stations generally favour the proposed value for signal regime while BDUs generally do not. Under the current regulatory model, BDUs pick up the over the air signals of private local television stations and retransmit them to their subscribers for a fee. The CRTC requires BDUs to provide certain benefits to private local television stations for those signals. The CRTC has concluded that the existing model does not adequately deal with recent changes to the broadcasting business environment. Among the changes noted by the CRTC are the development of direct to home satellite television services, the development of speciality television channels that are permitted to receive fees directly from BDUs that carry them, and the widespread adoption of alternative media platforms. These changes have caused advertising revenues for private local television stations to fall while the revenues of BDUs have increased, resulting in a significant shift in their relative market positions and a financial crisis for the private local television stations. The CRTC concluded that this financial crisis may be averted by adopting a value for signal regime that invokes market forces. The CRTC therefore brought an application for a reference to the Federal Court of Appeal to determine its jurisdiction to implement the proposed regime.

The majority of the Federal Court of Appeal (Sharlow and Layden Stevenson JJ.A.) held that the CRTC does have the jurisdiction under the Broadcasting Act to implement the proposed value for signal regime and that nothing in the Copyright Act precludes the CRTC from doing so. Nadon J.A., dissenting, found that the proposed value for signal regime was ultra vires the powers of the CRTC, because it conflicts with s. 31(2)(d) of the Copyright Act which precludes payment of royalties for the retransmission of “local signals” .

The case is Cogeco Cable Inc., et al. v. Bell Canada, et al. The FCA decision is here.

There is still at least one other interesting copyright ball up in the air at the Court concerning "authorization" and the territorial scope of Canada's Copyright Act. See here.

There are now six (6) pending copyright cases at the Supreme Court of Canada, five from the Copyright Board that will be heard on December 6 and 7, 2011 and now this from the CRTC. There is no indication when this latest case will be heard.

HK

Copyright Board Refuses to Require Transactional Licenses from Access Copyright or its Rights Holders

The Copyright Board today released a decision denying AUCC’s request to amend the interim Access Copyright post-secondary tariff to force Access Copyright to issue transactional licenses.

Prof. Katz, who is participating personally in this tariff proceeding, had proposed an arguably more subtle and effective remedy that would have seen the Board order any rights holder whose works are part of Access Copyright’s repertoire, rather than AC itself, to issue transactional licenses on reasonable terms.

Prof. Katz had also tried to suggest that the Board request the Commissioner of Competition to participate in consideration of the issue of transactional licenses pursuant to s. 125 of the Competition Act, but was ordered by the Board not to pursue this aspect further.

In any event, the Board denied both AUCC’s and Prof. Katz’s proposals. 

This decision is of potentially of great importance to institutions that have opted out of the interim tariff, but who may wish to seek an occasional “transactional license”, either from the rights owner of from Access Copyright, assuming that the work is in AC’s repertoire. The non-availability of such licenses would arguably tend to force institutions to stay within the framework of the supposedly optional interim tariff.

In any event, even without resolution of this particular issue and despite the alleged non-availability of these licenses any longer from either AC or certain of its publisher affiliates, about three dozen post secondary institutions have opted out of the interim tariff. These include most of Canada’s major research universities.

  

There is a great deal more of interest in this decision. The Board declined to address competition issues at this time.

If “anyone directly affected” by this decision wishes to seek judicial review, the deadline for making the application is October 24, 2011.


HK

Copyright Board Sets Schedule for Private Copying Tariff, 2012-2013

The Notice below was issued on September 22, 2011,leading to a hearing beginning Tuesday, October 9, 2012.

HK

***********************

 

NOTICE OF THE BOARD

 

Further to the exchange of correspondence between the parties, the Board adopts the following schedule of proceedings with respect to the above-mentioned file, leading to a hearing beginning Tuesday, October 9, 2012:

　

 

Exchange of interrogatories: no later than Thursday, September 29, 2011

 

Objections to interrogatories: no later than Friday, October 14, 2011

 

Filing, with the Board, of replies to objections to interrogatories: no later than Friday, October 28, 2011

 

[Board Ruling]

 

Responses to interrogatories: no later than Friday, January 13, 2012

 

Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, January 27, 2012

 

Filing, with the Board, of replies to motions: no later than Friday, February 10, 2012

 

[Board Ruling]

 

Complete/satisfactory responses to interrogatories: no later than Friday, March 9, 2012

 

Filing of Collective's Case (CPCC): no later than Friday, April 27, 2012

 

Filing of Objectors' Case: no later than Friday, August 10, 2012

 

Filing of Collective's (CPCC) Supplementary Case: no later than Friday, September 14, 2012

 

Filing of Legal Briefs (if required): no later than Friday, September 28, 2012

 

Beginning of hearing: Tuesday, October 9, 2012 at 10:00 a.m., Copyright Board's hearing room.

 

 

The Directive on Procedure will follow shortly.

 

Gilles McDougall
Secretary General | Secrétaire généralCopyright Board of Canada | Commission du droit d'auteur du Canada
56 Sparks, Suite| Bureau 800
Ottawa ON K1A 0C9

Board Rules on Hearing Date for Private Copying Tariff, 2012-2013

Here is the Copyright Board's ruling from today regarding scheduling of the Private Copying 2012-2013 proposed tariff hearing on, inter alia, electronic memory cards. It will start on October 9, 2012. CPCC had asked that it start on May 15, 2012.  

Since I am one of the counsel involved, I will refrain from comment in this instance.

HK

************************

From:                            

To:                                XXXXX

CC:                                XXXXX

Date:                              13/09/2011 1:02 pm

Subject:                          CPCC - Private Copying Tariff, 2012-2013

RULING OF THE BOARD

In its notice dated August 22, 2011, the Board expressed the preliminary view that the above-referenced proceedings could be scheduled for hearings starting on May 15, 2012 as CPCC proposed. On September 2, 2011, newly retained counsel for a coalition of objectors asked that the hearing start some five months later, on October 9, 2012. The reasons the Coalition offered can be stated as follows. First, the proposed timelines for interrogatories left too little time for objectors to provide complete answers. Second, the six weeks afforded to objectors to respond to CPCC's case were too short, given the "enormous" amount of effort required to do so. Third, newly retained counsel for the coalition was unavailable from April 23 to June 7, 2012; objectors should not have their ability to retain counsel of choice constrained by the choice of a conflicting date.

Other objectors agreed. RCC in particular raised several points, including the following. First, the schedule would "culminate in a hearing in barely over 8 months". Second, CPCC was able to prepare for this hearing "many months and indeed years" in advance. Third, though experienced in proceedings before the Board, RCC was "completely taken by surprise" by CPCC's attempt to seek a levy on electronic memory cards. Fourth, the Board's standard procedure "confers an enormous and unfair advantage on" CPCC; objectors necessarily must wait for CPCC's case to find out "what lies ahead". In short, "the proposed schedule is too compressed and begins far too early. It is unrealistic and would amount to procedural unfairness."

CPCC provided a thoughtful and measured response to the objectors' issues, which it is unnecessary to review here.

The Board grants the application, with considerable reluctance. First, problems that the interrogatory process may entail probably are exaggerated. CPCC assures us that questions will be much more focussed in this instance. The objectors are quite capable of anticipating most of what they will be asked. Under the circumstances, four months to deal with interrogatories seemed sufficient. Second, any surprise caused by the request for a levy on memory cards dissipated some four months ago, when the proposed tariff was published in the Canada Gazette. Third, it is simply disingenuous to state that CPCC can prepare months or years in advance; while it may well develop one or more theories before filing a proposed tariff, it is simply unable to validate these theories and finalize its case until objectors have provided it with highly relevant information that they alone possess. Fourth, the timelines provided in the proposed schedule were realistic, as long as objectors avoided procrastinating. Fifth, the objectors' assumption that they are to remain essentially passive (other than in reacting to interrogatories) until CPCC files its statement of case is unwarranted, unhelpful and disappointing: objectors "own" much of the information relevant to setting a fair tariff or deciding whether electronic memory cards meet the definition of "audio recording medium".

The Board notes that the attempt to deal with this matter within a time frame that is somewhat shorter than in other proceedings is being opposed by some who are also known to complain in public about the time it takes to deal with proposed tariffs.

A one-month extension would normally be sufficient to address any valid concern raised by the objectors. However, given the unavailability of counsel to the Coalition for several weeks in April, May and June, 2012 and the Board's own schedule between June and September, 2012, it is preferable to begin hearings at the date proposed by the Coalition, October 9, 2012.

Significantly, the objectors proposed nothing that might help mitigate the prejudice CPCC and the rights holders it represents may suffer from postponing this matter from the Spring to the Fall. As the Board noted in its August 22, 2011 notice, it is especially difficult to collect retroactive levies within the private copying regime. As a result, delays in dealing with tariffs largely tend to prejudice rights holders. In this instance, given that the delay is being granted at the request of the objectors, this may lead the Board to reconsider its past practice in the matter. Consequently, objectors are strongly urged to ensure that the information required to calculate an eventual levy on memory cards is compiled starting January 1, 2012.

The hearing on this matter will begin on Tuesday, October 9, 2012. No later than on Monday, September 19, 2011, parties shall file a joint schedule proposal. If the parties are unable to come to an agreement, CPCC shall file its proposal and the objectors shall file a joint proposal.

  

Gilles McDougall

Secretary General | Secrétaire général

Copyright Board of Canada | Commission du droit d'auteur du Canada

56 Sparks, Suite| Bureau 800

Ottawa ON K1A 0C9

Telephone | Téléphone 613.952.8624

Gilles.mcdougall@cb-cda.gc.ca        

ACCC's Request for Reconsideration of Board's Ruling re Opt-Outs Denied

ACCC's request for "reconsideration" of the Board's ruling that opt-out institutions must still answer interrogatories has been denied. See below.

A request for "reconsideration" is not the same an application for judicial review ("appeal", in layperson's terms).

It remains to be seen whether ACCC or AUCC will seek judicial review.

As indicated in my earlier blog about this issue, "The deadline to file the required notice of application, which begins the process, would be September 19, 2011."

My earlier blog described some of the issues regarding the warnings  (threats?) of potential subpoenas. 

HK

****************

From: Gilles.McDougall@cb-cda.gc.ca [mailto:Gilles.McDougall@cb-cda.gc.ca]
Sent: Tuesday, September 13, 2011 11:38 AM
To: XXXXXXXXXXXXXXXXXXXXXXXXX

Subject: Access Copyright Post-Secondary Educational Institution Tariff (2011-2013)

RULING OF THE BOARD

On August 18, 2011, the Board issued a ruling providing in part that Access would be allowed to obtain information from institutions that do not avail themselves of the interim tariff (the "opt-out institutions"). On September 12, ACCC asked that the Board reconsider this ruling for two reasons. First, opt-out institutions have severed their licensing relationship with Access. They do not currently intend to be "prospective users" of the repertoire of Access; therefore, as a matter of law, they should not be required to comply with the Board’s ruling. Second, since 68 of 77 institutions have responded to interrogatories, Access already has in its possession more than a reasonable amount of relevant information from a reasonable number of institutions. There is no information in the possession of the opt-out institutions which could affect the Board’s consideration of the tariff under examination.

The first argument misses the point. The reference to "prospective users" in subsection 67.1(5) of the Copyright Act, which section 70.14 incorporates by reference in the general regime, is to users of the final tariff. Opt-out institutions do not know whether they may now be making protected uses requiring their compliance with a final tariff that does not yet exist. They can sever their relationship with Access if, and only if, they make no unauthorized, protected use of the repertoire of Access; that relationship is governed by facts and law, not intentions. More importantly, the Board’s power to order someone to provide relevant information is not limited to prospective users.

The second argument is misplaced. Access has no information from opt-out institutions. And as stated in the August 18 ruling, "[t]he June 6, 2011 ruling is clear: information concerning these institutions is relevant." The August 18 ruling required Access and ACCC to agree on which opt-out institutions should be approached precisely in order that only a reasonable number of these institutions be required to respond to the questions of Access.

The application for reconsideration is dismissed.

Gilles McDougall
Secretary General | Secrétaire généralCopyright Board of Canada | Commission du droit d'auteur du Canada
56 Sparks, Suite| Bureau 800
Ottawa ON K1A 0C9
Telephone | Téléphone 613.952.8624
Gilles.mcdougall@cb-cda.gc.ca

Supreme Speculation

  
Supreme Court of Canada watchers - which now assuredly includes any and all Canadian copyright lawyers - are wondering why the Supreme Court is going to hear five (5) copyright cases, presumably in two days on December 6th and 7th, 2011.


At least three of these cases would have seemed to be unlikely choices under normal circumstances, at least in the eyes of most copyright lawyers, for the granting of leave to appeal. Moreover, for the Supreme Court to hear five (5) copyright cases in two days  is unheard of in copyright law - and is a very rare if not unique event regardless of the subject matter in this Court's history or that of any other highest court. These are not motions. They are full fledged appeals, with a multiplicity of parties and counsel in most of the cases and several interventions already permitted and more applications to intervene expected. Quite apart from the logistics of how these two days may unfold, there is much speculation about what the Supreme Court may have in mind overall.


Here's something else to speculate about. There's another potentially interesting copyright case in the pipeline that was also decided by the Federal Court of Appeal on judicial review from the Copyright Board, and for which  leave has been sought but not yet ruled upon. This inovlves SOCAN and CSI, and the issue of the territorial scope of the Copyright Act, and consideration of what constitutes the “authorization” of a reproduction of a work.This is case CMRRA-SODRAC Inc. (CSI) v. SOCAN, Sirius, Canadian Satellite Radio Inc., et al. (SCC no. 34092).  In this instance, it is now past the usual time of four months or so after the filing of the leave to appeal application that it takes the Court to rule.  And the Court just last week granted leave to appeal in the NRCC "soundtracks" case (Re:Sound v. Motion Picture Theatre Associations of Canada et al. (F.C.) (Civil) (By Leave) (34210), in which the leave application was filed more than two months later - and which almost nobody thought would would be granted.


Could it be that the Court will hear this "authorization" case as well? And during this already uniquely busy two days in December?  That would make six (6) cases in two days - and would give court watchers even more to speculate about.


And to add to all of the mystery, we may have two new Supreme Court judges by the time these cases are heard.


HK