Leave to Appeal Granted in Access Copyright v. York U

Both sides have been granted Leave to Appeal.

Here were my observations about the decision from the Federal Court of Appeal decision from April 22, 2020.

Interveners, start your engines.

HPK

The Outpost - Mass Copyright Litigation

 

(Wikepedia)

Another instalment in the mass litigation litany from the Aird and Berlis firm has now been released involving The Outpost - a 2020 picture.

There are 841 "Doe" defendants. See attached Statement of Claim.

HPK

Access Copyright v. York University - Update on Supreme Court - Replies Have Been Filed

 

Here's Access Copyright's Reply.

Here's York's Reply. 

The materials were submitted to the Judges on September 14, 2020,

We will learn sooner or later whether leave has been granted to either or both sides.

Meanwhile, potential interveners should be watching.

HPK

Access Copyright and York U File Responses in SCC

(Canadian Encyclopedia)

Here's Access Copyright's Response to York's Leave to Appeal Application.

Here's York U's Response to Access Copyright's Leave to Appeal Application.

HPK

The Copyright Board’s New $757,548.50 (+?) Website – Finally an Apparently Functional Search Engine – but Otherwise Disappointing at Best and Problematic at Worst – And Still NO CANLII Presence

 

The Copyright Board finally announced its “new” website yesterday, September 2, 2020:

The Copyright Board welcomes you to its new website! This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information and products in both official languages, as required by the Official Languages Act.

One major innovation on the website is the incorporation of Decisia (by Lexum). This platform allows users to have access to the resources made available by the Board, such as documents, decisions, approved tariffs, licences for the unlocatable copyright owners regime, and much more. Discover it here. Additionally, users can subscribe to Decisia's mailing list and receive weekly updates on the publication of new documents. This innovation supports the Copyright Board’s broad objective toward ensuring greater transparency and access to justice for all Canadians.

https://cb-cda.gc.ca/en

It apparently has cost at least $757,548.50 that we know about. Some quick next day comments:

For those who had laboured to become familiar with the previous website, some things – such as Notices & Rulings – have inexplicably disappeared from plain sight and can only be found through the thankfully finally apparently functional Search facility – which has been needlessly non-functional for as long as I can remember. The Notices and Rulings are still not up to date after December, 2019.

Apart from a new look, there is apparently little new useful information or other  evidence to substantiate that this “This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information…”

There is a somewhat useful page for “Ongoing Cases” – which presents a bit more conveniently the same information that what was already there and not very hard  to find. There is also a listing of “Filed Agreements”  – though only for 2017 on – which are presumably available upon request though “Agreements will continue to be screened before access for the purposes of the Privacy Act.”

There are lot of apparently new entries in the FAQ section. Some are misleading to users and maybe even dangerously deferential to collectives. An unnecessary enquiry to a collective can put someone on that collective’s radar and needlessly at risk. And few if any collectives have comprehensive and reliable information online about their actual repertoire. In the case of Access Copyright, it’s something of a joke. As I’ve pointed out several times, it is happy to sell you a license to ancient public domain editions of Charles Dickens Christmas Carol. More on this FAQ stuff later. Frankly, the Copyright Board has no mandate to provide legal or even vaguely general copyright advice to the public and should not be using its resources to do so. To the extent that such information is accurate, appropriate, useful, and warrants government resources,  it should be provided by CIPO.

One notably non-responsive and even evasive FAQ response to the utmost important and most often asked question of How Long It Takes the Copyright Board to Render its Tariff Decisions is this:

The Copyright Act provides that "cases before the Board are heard expeditiously and without formality".

The complexity and level of preparation of the file submitted may influence the time taken by the Board to examine the application as well as the time taken to deliberate leading to a decision, for example, if the file is incomplete.

The number of stakeholders can also indirectly influence the duration of the process, since this increases the possibility of having an objection to the proposed tariff; or if there is objection, since the objectors must present their arguments in writing. Once the objectors' files are considered complete and have been presented, the Board enters into deliberation. Its decision is made public when it approves the tariff and publishes it in the Canada Gazette.

https://cb-cda.gc.ca/en/faq

The fact is that it can take the Board almost ten years to retroactively approve an effectively uncontested tariff in circumstances that make the result inconclusive, e.g. the Access Copyright Post-Secondary tariff, which I wrote about here on January 22, 2020. Not surprisingly, the key links I provided don’t work any more.

Indeed, a lot of old links unfortunately no longer work – for example the links I reported on the $757,548.50 budget allocated to the new website as of November of 2019. See here. The information is still there on the Board’s website  – but the old links don’t work any more.

The search engine appears to functional back to 1990 – though I haven’t fully tested it yet.

However, the overwhelming problem that remains is this:

The Board’s Reasons of Decision and Tariffs are NOT available on CANLII, where a simple one stop search would produce results – for example for “making available” – that would include BOTH Copyright Board and Court decisions. CANLII searches can be fine tuned using the “advanced” tools.

I have looked into this CANLII issue very carefully and received very knowledgeable information. There is no reason why the Board’s decisions and tariffs is couldn’t have been made available on CANLII at no cost many years ago. There is no reason why this should not immediately happen going forward with coverage since at least 1990. There is no need for any additional cost to taxpayers.

Other comparable tribunals that are on CANLII include:

•        The Trademarks Opposition Board
•        Commissioner of Patents
•        The Competition Tribunal

See: https://www.canlii.org/en/ca/

I have tried but been unable to get any  direct answer from the Board about the inexplicable and conspicuous absence of its decisions on CANLII.

The Board’s adoption of the background engine DECISIA – which can be used for better (e.g. for better at the SCC and apparently for worse at the Competition Tribunal) can allow for  feeding of cases to CANLII – but this is not and never has been a necessary aspect of such utility – which is an essential component of access to justice.

So – the bottom line for now is that we have a website with a new look but few new useful aspects – except for a finally apparently functional search engine, which I will test further later. That could and should have been fixed at no cost many years ago. The Board has regularly spend a very large amount for many years on outside sources for its website with a non-functional search function. Indeed, my own blog has a fully functional search function and a daily – not weekly - email update feature and my software costs nothing. It’s not easy to see how or why the Copyright Board’s “new” website  has cost taxpayers at least the  $757,548.50 that we know about.

It would appear that older snapshots of the Board’s website are available on the marvellous Wayback Machine at www.archive.org .

If anyone sees any positive or negative aspects I may have missed in this next day quick review, please comment below – which you can do anonymously if you wish – or email me privately.

And, BTW, the position of Chair of the Board remains vacant. That is a serious issue and we really need to have a top notch sitting, supernumerary or retired judge –  preferably from the Federal Court or the Federal Court of Appeal and with no ties to vested interests. And someone who is willing take on the challenge, wherever it may lead, of ensuring that better decisions are rendered in a time frame consistent with other Canadian courts and tribunals.

HPK

Access Copyright and York University File Leave to Appeal Material in the Supreme Court of Canada

Access Copyright (“AC”) and York University have both filed applications for leave to appeal in the Supreme Court of Canada (“SCC”)  following the decision of the Federal Court of Appeal (“FCA”) in York University v. The Canadian Copyright Licensing Agency (Access Copyright), 2020 FCA 77 (CanLII), <http://canlii.ca/t/j6lsb>, (the “FCA decision”) which I have discussed at length here.

Here is AC’s Notice of Application and its Memorandum of Argument.

Here is York U’s Notice of Application and its Memorandum of Argument.

I will comment only in a very cursory way at this point. I and others will no doubt have much to say in the future – either in the SCC on behalf of interveners or in blogs, articles, etc. – or both. I have written frequently on my blog about this case and related issues in the past and addressed the main issue in the SCC in CBC v. SODRAC  in the SCC – see below.

AC is, of course, seeking to get leave to appeal the ruling that its Copyright Board tariffs are not mandatory. It states, very astonishingly, in is Notice of Application that:

3. This case provides the Court with its first opportunity to consider the tariff-setting

regimes under the Copyright Act. The key question is whether tariffs approved by the Copyright Board are enforceable against infringers who do not wish to pay them. The Federal Court of Appeal held that they are not.

(highlight and emphasis added)

The “first opportunity” comment, of course, is simply wrong – to put it very politely. Justice Pelletier devoted the better part of 73 pages and 206 paragraphs in the FCA decision totally vindicating the proposition that final – and obviously interim – Copyright Board tariffs are not mandatory. His opinion cited and derives from Prof. Ariel Katz’s landmark Spectre I paper that shows how the conclusion that tariffs are not mandatory traces back to Vigneux v. Canadian Performing Right Society Ltd., 1943 CanLII 38 (SCC), [1943] SCR 348, <http://canlii.ca/t/fslvq> and legislation tracing from 1936. Moreover, the FCA decision explicitly relies not only on the 1943 SCC decision in Vigneux, but to two other SCC decisions, namely Maple Leaf Broadcasting v. Composers, Authors and Publishers Association of Canada Ltd., 1954 CanLII 62 (SCC), [1954] SCR 624, <http://canlii.ca/t/22x4f> and, of course, of Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <http://canlii.ca/t/gm8b0>. See FCA decision, paras. 54, 72 and 73.

AC’s memorandum does at least mention the Vigneux decision. However,  it obviously and blithely ignores the controlling  SCC case of Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <http://canlii.ca/t/gm8b0>, from less than five years ago in which the SCC explained in a dozen paragraphs (paras. 101-113)  why Copyright Board tariffs are not mandatory, as argued in that case by me on behalf of Prof. Ariel Katz and Prof. David Lametti, as he then was. Reference to that totally controlling SCC decision is, incongruously, nowhere to be found in AC’s material. This decision was, of course, relied on and followed in the FCA decision.

I cannot resist recalling from  an earlier blog of mine in 2012 the following passage about ignoring relevant and dispositive precedents in an appellate court:

In any event, Prof. Katz mentioned the recent decision of Judge Richard Posner  - remarkably colourful even by this remarkable judge’s standards - concerning the risk of ignoring relevant and dispositive precedents. Here’s the relevant passage  – with the illustrations included by Judge Posner himself:

When there is apparently dispositive  precedent, an appellant may  urge its  overruling or  distinguishing or reserve a  challenge  to  it  for a petition  for  certiorari but may not simply  ignore it …

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047  (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).6 Nos. 11-1665, 08-2792

York University’s material deals with the fair dealing aspects of the FCA decision:

Issue 1: When determining whether copying in the educational context constitutes “fair

dealing” under the Copyright Act, should the analysis be conducted from the perspective

of the ultimate users (students), or from the perspective of the educational institution they

attend?

Issue 2: When determining whether copying in the educational context constitutes “fair

dealing” under the Copyright Act, the analysis should refrain from conflating factors.

Issue 3: For institutional fair dealing guidelines to be “fair” for purposes of the Copyright Act, is there an obligation for the institution to implement safeguards to ensure compliance with the guidelines themselves?

Stay tuned.

HPK

(updated June 26, 2020)

Copyright Board Activity in 2020: Launch of Twitter Account and Guidelines for Economic Evidence

More than a year after the Copyright Board announced with great fanfare that it would launch a Twitter account and received an additional $1,000,000 in its budget, the account has now launched on June 12. 2020.  Here it is. @COP_eng . In its first ten days, it has so far 14 followers – two of whom are me and Prof. Ariel Katz @Relkatz and at least two of whom are Copyright Board staff.

Its only announcement to date is that the Board has now issued “Guidelines for economic evidence submitted to the Copyright Board of Canada”.  Indeed, this is the only evident sign on the Board’s website of any activity by the Board in 2020 other than the Twitter account launch, and the usual COVID notice. It would seem  rather difficult to see where any of the million dollars has been spent. The “revamped” website has not been launched. None of the three dozen or so presumably routine but possibly interesting notices and rulings that have apparently been issued in 2020 have yet been posted online. Back on November 28, 2019, I reported that the Board has spent $757,548.50 on website stuff since April 1, 2018. No progress is evidence. If anything, the website has become even less useful – for example by eliminating the names and contact information for all its professional staff other than its Secretary General.

Also, it’s a mystery as to who, if anyone, is currently the Chair of the Copyright Board. As of now, according to the Governor in Council appointments website,  the position seems to be vacant. The appointment of Justice Robert Blair expired on May 27, 2020 and there is no indication at this time that his appointment has been renewed or that he has been replaced. He is still shown on the Board’s website, but the Board’s website seems to have been largely untouched for several months despite the massive amounts of money spent on it. The Governor in Council website is likely more definitive.

In any event, there are some good common-sense points in these new Guidelines.  Economic evidence can be useful in rate setting. That goes without saying.

However, the concept of a “willing buyer” and a “willing seller” is very problematic in a market where one party is given potentially very powerful statutory monopoly power and the potential licensees either don’t wish to or don’t need to deal with the collective in question. However, assuming, as is likely, that the recent FCA ruling that Copyright Board tariffs are not mandatory stands, then some viable meaning to these concepts may actually be restored if – and this is a very big “if”  – both collectives and  the Board appreciate that tariffs must offer good and attractive value if they are to translate into licenses between a collective and a willing licensee.

The most recent Access Copyright post-secondary tariff decision in which the Board improvidently adopted the so-called “freely negotiated” AUCC model license and Access Copyright’s “Premium” licence as valid proxies after nearly 10 years of mostly unopposed proceedings is absolutely NOT such an example. The  Board’s reasoning is very unconvincing. The Board regarded institutions that did not sign on to the AUCC Model licence or Access Copyright’s Premium license as having “left the market”.  That, of course, is absurd. Those institutions were spending millions clearing their copyright needs in other ways, such as expensive site licences and reliance on several Supreme Court of Canada fair dealing decisions. On January 22, 2020, I commented on the timing of the Board’s decision that was almost a decade in the making and extremely retroactive – and that for one reason or another nobody could be bothered to even attempt to seek judicial review. And that was three months before the landmark ruling in Access Copyright v. York that Access Copyright’s tariffs aren’t mandatory.

Moreover, a perennial problem is that many Copyright Board cases – especially those involving new or “inaugural” tariffs – start out with  no “evidence” as such and are merely based on guesswork and may not get much better as time goes by. Readers may recall that that, in 2002, the Canadian music industry was seeking a “tax” (as it was commonly called) of $21 per GB on the memory in iPods and other devices. If that had somehow been approved and had remained in place, that “tax” on an 8 Terabyte external hard drive that now sells for about $200 would be $168,000.00 – and that is not a misprint. The point is that the music industry was simply pulling a number out of the air with absolutely no evidence or rationale to back it up. It was not much better when Access Copyright started out by demanding $45 per FTE student – with no apparent basis for that number – in its proposed post-secondary tariff.

If the Board’s Guidelines succeed in injecting some rigor into the front end of these proceedings, much time and expense could be saved. However, it’s ironic that for an organization presumably now very acutely aware of the meaning of the word “mandatory”, these Guidelines are explicitly “not mandatory”. Indeed, more may be needed in the form of explicit regulations that require something analogous to a “pleading” or “statement of claim” where “a concise statement of the material facts” to be relied upon are set out at the outset. See Federal Courts Rules Rule 174.

The additional clarity on the Guidelines is helpful in some respects. However, the several references to “intervals” and “interval methodology” inject what many will perceive as unfamiliar terminology. This may cause some confusion. Whether this is new terminology for old economic or statistical methods or indeed actually some kind of new “methodology” may need clarification.

I don’t know whether the Board looked at the Competition Tribunal, which is a far more productive organization with a now much smaller budget than the Board and a far greater case load that often involves very complex and important matters involving vast amounts of money. Here are the rules that govern the use of evidence and expert evidence in that tribunal. Of particular interest is Rule 80 that provides:

80 (1) The Tribunal may, at any time, by order appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a proceeding.

The Copyright Board Guidelines do not address the elephant in the room here, which is the use and sometimes the apparent misuse of so-called expert evidence that can happen at the Board. Although the Board has more leeway than a normal court when it comes to such things, there are certain basic laws of gravity that apply. These are set out in a famous Supreme Court of Canada case, namely R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9, <http://canlii.ca/t/1frt1>. The application of Mohan in the context of admirative tribunals has recently been recently exhaustively considered by the Competition Tribunal – once again the most useful comparative model for the Copyright Board. See The Commissioner of Competition v Vancouver Airport Authority, 2019 CACT 6 (CanLII), <http://canlii.ca/t/j36c1>, which deals at length with such issues as the necessity, reliability and independence of the “expert” evidence, as well as the perennial issue of “hearsay” evidence.

The paradox at the Board is that, even with the relaxed rules of evidence compared to a normal court  that it is allowed (with the approval of the FCA per Pelletier, J.A. in Canadian Recording Industry Association v. Society of Composers, Authors and Music Publishers of Canada, 2010 FCA 322 (CanLII), <http://canlii.ca/t/2dsw7>, things take exponentially longer and incur exponentially higher costs that one would normally see in a normal court.

Notwithstanding the above and the slight signs of progress, I feel  compelled to reiterate my concern that I voiced a year or so ago, about the supposedly “new” concepts of “public interest”, “willing buyer”, and “willing seller” which are  referred to in the Guidelines and which some parties with too much resources may exploit to wear down parties with too little resources. The Board’s Guidelines do little to allay my concerns. This is what I said about this over about a  year ago:

Ms.  Théberge [the Vice Chair of the Copyright Board, who is not a lawyer] spent a lot of time pointing out that, as of April 1, 2019 the new “public interest” requirement for tariffs came into effect. Here is the provision:

Fair and equitable

66.501 The Board shall fix royalty and levy rates and any related terms and conditions under this Act that are fair and equitable, in consideration of

(a) what would have been agreed upon between a willing buyer and a willing seller acting in a competitive market with all relevant information, at arm’s length and free of external constraints;

(b) the public interest;

(c) any regulation made under subsection 66.91(1); and

(d) any other criterion that the Board considers appropriate.

2018, c. 27, s. 292 (highlight added)

This was introduced in the very unfortunate Bill C-86 omnibus bill that received only a token amount of debate and public comment. I said at the time in a blog that was very critical of the Governments use of omnibus legislation in this way that:

·       Will the imposition of explicit criteria re “competitive market” and “public interest” cause more mischief, costs and need for protracted and expensive evidence from so-called experts? The Board has purported to be concerned with the public interest all along – so do we really need to etch this into stone, whatever it may mean? Even John Degen agreed with me that this was cause for concern – thought for difference reasons. But the fact that Mr. Degen and I agreed on something should tell you something.

Neither of these concepts – the “public interest” and “competitive market” –  are new. They are embedded in existing jurisprudence, especially that of the “public interest”. That the Board should now consider that it suddenly has an obligation to decide cases “in the public interest” is astonishing. What else has it and its predecessor been doing for more than 80 years? Is the Board unaware of Supreme Court of Canada jurisprudence going back almost 8 decades? While some consultants are doubtless salivating at the prospect of providing lucrative so-called “expert” evidence on these issues that will result in protracted and much more expensive hearings, this should not be necessary if the Board simply follows longstanding case law and takes responsibility for deciding the ultimate legal questions itself rather than relying upon so-called experts, who are often repeat performers and rarely truly independent when it comes to Copyright Board proceedings.

Indeed, Justice Blair himself made a half dozen references to the “public interest” in his published remarks from over a year ago. Why this is suddenly now an apparent new mandate for the Board is astonishing and should be very puzzling to those who know Canadian copyright jurisprudence.

However, suppose that Bill C-86 actually did somehow enact something new (likely unlikely) in this respect and could be invoked to call for a new approach. It would be nice if this supposedly new “public interest” provision would be invoked to enable the Board to retain truly neutral and credible advice in the person of amicus curiae or “assessors” in appropriate circumstances but there was no suggestion to that effect. Moreover, when the Board is indecisive even about deciding such a basic issues as whether a person engaged in case management should be on the presiding panel (which should be avoided at all costs, as is the case in the Federal Court as every experienced Federal Court lawyer knows well), it’s hard to imagine how the Board would be thinking about bringing in the concept of amicus curiae or “assessors” – which would be admittedly unusual but arguably within the realm of the possible and advisable. Besides, if the thought were ever to occur to the Board, it would no doubt want a very large budget increase to look into this and to fund such activity. Anyway, it’s probably a non-starter of a suggestion, since there are very few if any people in Canada who are sufficiently expert lawyers or economists to fulfill this role and who would not already have too much baggage to carry and still be perceived as credible to all concerned.

So, I expect that my fear – shared by others – that this gratuitous statutory  references to the “public interest” and a “competitive market” will become an excuse for even longer delays appears to be coming true. I hope that I am wrong. However, given the Board’s propensity for making very simple things very complicated (e.g. “ordinarily used”, “making available”, etc.), I cannot be optimistic.

(highlight added)

HPK

The Federal Court of Appeal Makes its Making Available Judgment Available: It’s Not Just About “The Vibe”

(HT Gib Van Ert)

The FCA has now released two important companion judgments regarding the Copyright Board’s 2017 tariff decision that involved the so-called “making available right”. Both judgments were penned by Stratas, J.A.

The first FCA decision is Entertainment Software Assoc. v. Society Composers, 2020 FCA 100 (CanLII), <http://canlii.ca/t/j82gg>  – the “making available judgment” – which quashed the Copyright Board’s 2017 decision that there is a new and separate “making available right” (“MAR”) that can be monetized as such as a tariff (the “Board MAR decision”)

The second FCA decision is CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101 (CanLII), <http://canlii.ca/t/j82gf>, which upheld that Board’s related 2017 decision that ‘evidence before it was inadequate to warrant the setting of tariff for “making available" (the “Board rate decision”).

On the first issue regarding the making available right, the FCA quashed the Board’s decision in a judgment that is perhaps the most blunt, scolding, scathing, sweeping, and almost even sarcastic appellate rebuke that I have ever seen of any tribunal and certainly of the Copyright Board – with one possible other contender mentioned below, with an interesting common denominator. We see use of such language as “unacceptable”, “skewed”, “fatal loss of confidence…”, “misapprehension”,  and repeated use of the word “misuse[s]”.

While the result is anything but surprising, the frankness of the language from this normally very staid and rhetorically restrained Court is indeed very notable and remarkable and should be taken very seriously not only by today’s Copyright Board (which is composed of different members than those who wrote the 2017 decision) but by those bureaucrats and Ministers who enable and fund it.

Both of these decisions comment at length about the possible implications of the Supreme Court of Canada (“SCC”) decision in Vavilov for the Copyright Board. I’ll leave that mostly for another day. However, it should be noted that that the Board’s “correctness” niche carved out by the Supreme Court of Canada (“SCC”) pre-Vavilov wherein some issues arise both in tariff hearings and in infringement proceedings in the superior Courts may one day now be revisited as to whether this is still “good law”. In any event, those comments of Stratas, J.A. were obiter dicta. The FCA reviewed both decisions on the lenient and more deferential standard of “reasonableness” ((i.e. not “egregious or irrational” – Board Rate decision, para. 6). The Board won the battle on rate setting but lost the war on statutory interpretation and its “misuse” (paras. 76, 77 and 93)  of international law and its “misunderstanding of the relationship between Canadian domestic law and international law.” (para. 75)

The FCA upheld the Board on the rate setting issue, affirming the Board’s “relatively unconstrained” power to set rates and indicating that “in setting rates, the Board has just about the widest discretion known to law” (para 12 of the rate decision). That is not particularly remarkable or surprising – since the real raison d'être of the Board has historically been and mainly should be about rate setting and number crunching which requires sometimes lots of evidence and which justifies some time and effort – though not the 7 – 9+ years that seems now to have become the new normal for any contested file – or in the case of the Access Copyright post-secondary tariff – even an effectively uncontested one. Don’t get me started again on the extreme retroactivity of Board tariffs – something about which the SCC has explicitly expressed concern.

The Copyright Board has been ill-equipped to deal with any serious legal issues that entail jurisdictional or other essentially legal matters . Unlike the Competition Tribunal, where “questions of law shall be determined only by the judicial members sitting in those proceedings”, the Board has never had such a requirement and can sit even in the absence of its Chair, who is required to be sitting or retired judge.  That said, there has never been a Chair of the Board who hit the ground running with copyright law expertise. Even the most recent Board Chair – Justice Robert Blair – who as of today appears either to have retired or hasn’t yet been reappointed following the expiration of his first term on May 27, 2020 – has explicitly commented in 2018 on Board expertise in his only published remarks to date that such expertise is more likely to come from the Federal Courts and that the Board, at that time, didn’t even have a member with economic expertise:

The Chair must be a sitting or retired superior court judge (where very little intellectual property work, much less copyright work, is done), and to date has not come from the Federal Court system where they actually know something about those subjects! In addition, none of the present members is an economist.

At any rate, I can and probably need do little more at this time than excerpt (with highlight, emphasis and some brief comment added) some of the more interesting and trenchant excerpts from Stratas, J.A.’s decision in the FCA’s making available judgement:

[3] After SOCAN had filed its proposed tariffs, the Copyright Act was amended: Copyright Modernization Act, S.C. 2012, c. 20. A new subsection, subsection 2.4(1.1), sometimes called the “making available provision”, was added to the Copyright Act. It reads as follows:

For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

[4] This raised the question whether the mere making available of a work on a server for the purpose of later streaming or download by the public was an event for which a tariff was payable.

[5]  A few days after the addition of subsection 2.4(1.1) to the Act, the Supreme Court released an important decision that interpreted the phrase “communicate the work to the public by telecommunication”: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231. It held that the transmission over the Internet of a musical work that results in a download of that work is not a communication by telecommunication: see also Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283 at para. 2. Following that decision, SOCAN could not collect royalties for such downloads.

The Board took what should have been a very simple exercise in statutory interpretation and spun it into a lengthy apparently multimillion-dollar orgy of legal and international “expert”  fees and evidence  about the 1996 WIPO treaties. Here is the Board’s 2017 decision – released about five years after this matter first arose and after more than three years of deliberation.  

The Board did not need all this evidence. The legal issue about whether the 2012 legislation created a new distinct right that could be monetized into a tariff was quite simple not only in hindsight – but at the time, as some including Prof. Katz pointed out. If the Board was worried that this was over its head, or in any case, it could have and maybe should have dealt with this issue very simply by seeking a reference to the FCA – a procedure suggested by Prof. Katz in the Access Copyright tariff – but rejected with apparent hostility by the Board. Or, it could have simply ruled quickly by itself and let the parties bring judicial review proceedings.

The Board summarized its 2017 decision as follows:

[12] As will be made clear from the reasons that follow, subsection 2.4(1.1) of the Act deems the act of placing a work or other subject-matter on a server of a telecommunication network in a way that a request from a member of the public triggers the transmission of that work or subject-matter, including in the form of a stream or download, whether or not such a request ever takes place, to be a communication to the public by telecommunication.

In its August 25, 2017 Fact Sheet, the Board states:

Does this decision set a royalty for the making available of works to the public by telecommunication?

The protection of the making available of works to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public only came into force on November 7, 2012. Furthermore, there was insufficient usable evidence adduced by the Parties for the Board to be able to price the act of making available distinct from other acts of communication by telecommunication, or how to adjust the price for communication by telecommunication to account for its broadening in scope. However, this does not mean that the Board cannot do so in future matters.

Back to the FCA:

[49]  Nowhere did the Board explicitly say that it had a desired result in mind and that it was going to interpret subsection 2.4(1.1) in a manner to get that result. But looking at the reasons as a whole, whether it intended to do so or not, that is exactly what the Board did: it skewed its analysis in favour of one particular result.  

[50]  Two general features of unacceptability are evident in the Board’s reasons:

(1) Unacceptable legislative interpretation. The Board did set out the accepted method of interpreting legislation and the need to look at the text, context and purpose of legislation: at para. 95. But the analysis that follows leaves out important elements, particularly contextual elements such as the Supreme Court’s decision in Entertainment Software Association. And, along the way, the Board made some leaps of reasoning that cannot be justified. These fundamental defects result in a fatal loss of confidence in the Board’s interpretation of subsection 2.4(1.1).

(2) Misapprehension of the interrelationship between international law and domestic law. One element of the legislative purpose and context behind subsection 2.4(1.1), indeed an important element, is article 8 of the Treaty. But the Board went beyond seeing it as just an element: it developed its own robust view of article 8, offering nothing in support, and forced subsection 2.4(1.1), a provision in domestic legislation, to fit its view, calling subsection 2.4(1.1) a “deeming provision”. In so doing, the Board acted contrary to binding jurisprudence that limits the ways in which international law can influence the interpretation of domestic law.

...

[74]  Just because Canadian domestic legislation is enacted against the backdrop of a treaty that Canada has signed and just because the preamble to legislation, as here, suggests that it is aimed at implementing a treaty, it cannot be assumed that Parliament has adopted the treaty wholesale, no more and no less. Parliament, in fact, may have whittled down the provisions of the treaty or may have extended them. Indeed, it may have done something completely different.

[75]  The Board’s decision and many of the submissions supporting it suffer from a misunderstanding of the relationship between Canadian domestic law and international law.

[76]  When developing a legal argument, some members of the legal academy, the Bar, administrative decision-makers and the judiciary invoke international law—or sometimes just the vibe of it—because they see it as always relevant, persuasive and binding. Others see it as a make-weight, hoping to sway the impressionable with its grand provenance and sometimes broad acceptance. Still others see it as a supply of preferred values and ideological standards, handy ammunition to fire in support of a cause. In a courtroom ruled by doctrine, these are misuses of international law.  

[77]  Too often these days, we see these misuses. International law enters legal debates before courts and administrative decision-makers only in specific, defined ways that are consistent with settled doctrine and our constitutional framework: Gitxaala Nation v. Canada, 2015 FCA 73.

...

 [93]  In this case, in essence, the Board went to article 8 of the Treaty, asserted its view of that article’s meaning without any supporting reasoning, and then made subsection 2.4(1.1) conform to its view. This is not a legally acceptable methodology. This is a misuse of international law. The Board exalted international law over domestic law. In so doing, it violated the constraints imposed by binding case law and fundamental principle.

[94]  Overall, for the foregoing reasons, there is no basis for the Board’s interpretation of subsection 2.4(1.1). It cannot stand.

Déjà vu all over again?

Retired Justice William Vancise was the Chair of the Copyright Board from 2004 to 2014 and was the presiding member for the decisions in question that were rendered in 2017, more than three years after his retirement from the Board on May 13, 2014. The Board is very unusual in allowing this kind of long delay without a cut off date. The legislation does not preclude it and the Board clearly permits and indeed seems to encourage it. The norm in the judicial system for a retired judge to deliver a judgment after retirement is six months.

The current situation is not the first time where the Board has apparently started  out with a “desired result’’ and then tries to go about justifying it. One can look at the earlier ill-fated attempt to impose a “iPod tax” on devices when the FCA had said only three years or so earlier that it couldn’t do so on the memory embedded in such devices. The same Chairman Vancise was publicly perturbed about his rebuff from the FCA (Apple Canada Inc. v. Canadian Private Copying Collective, 2008 FCA 9 (CanLII), <http://canlii.ca/t/1vcx1>  and openly criticized it and its Justice Marc Noël (who was appointed Chief Justice of the Federal Court of Appeal, October 9, 2014) by name in what many might regard as an inappropriate speech delivered for a still active Chair of the Copyright Board in 2009 that he gave on August 11, 2009 shortly after he was reappointed for a second five year term in May of 2009.

Chairman Vancise had some trenchant comments about the SCC and the FCA. On the latter, he was particularly upset about its “six turgid paragraphs” that overturned his attempt to impose a “tax” on iPods on other similar devices that had been clearly rejected just a few years earlier:

The Supreme Court is not the only court attempting to fill perceived gaps in the Copyright Act. The Federal Court of Appeal has attempted on at least two occasions to reconcile the wording of the Act with the contemporary reality (means of consuming protected works or objects of copyright).

In 2004, the Court ruled the Board was wrong to conclude that the permanently embedded or non-removable memory, incorporated into a digital audio recorder or the device itself, was “an audio recording medium ordinarily used by individuals to copy music”.

In 2007, CPCC tried again and the Board was asked to determine whether the recorder itself was a recording medium as defined in the Act. It said yes in a long and well reasoned decision. The Federal Court of Appeal, once again on judicial review, overturned the Board. This time, the Court in six turgid paragraphs found its decision of 2004 dealt with the matter and was binding on the Board. I still wonder how the Federal Court of Appeal came to that conclusion when the question of whether the device itself was subject to a levy had not even been an issue in the previous decision and the comments of Noel J.A. were obiter and contained in what can only be called a “throw away line.” A throw away line that has had extreme consequences, not the least of which is at least 10's of millions of dollars in royalties that have not been paid to authors, composers and performers and threatens to destroy the private copy regime.

(Full disclosure - I argued successfully against the Board’s rulings on behalf of the Retail Council of Canada in both of these instances at the FCA).

Justice William Vancise rendered  his last Board decision only on January 18, 2018 – almost four years after his retirement.

What Does This All Mean?

This decision comes only a few weeks after another very important FCA copyright decision in the Access Copyright v. York University case. I’ve written about this recently at great length. That was an appeal – in contrast to judicial review – of a decision from the Federal Court. But lest we forget, that litigation was mainly about whether about whether interim and indeed final approved tariffs from the Copyright Board are “mandatory”. The FCA said very clearly that they are not. The Copyright Board tried its best to suggest for the longest time that they were mandatory based upon the absurd “one copy of one work” theory.

So, even if the Board has “just about the widest discretion known to law” to set tariff rates, it appears that the Board lacks the power to make the tariffs in question here and in the York case mandatory – absent an unexpected surprise from the SCC or Parliament. And even if the Board’s rate calculations can survive almost any judicial review, nobody will pay any attention to its tariffs even if they are “reasonable” (in the Vavilov sense) but unreasonable in common sense or dollars and cents to users and not mandatory.  

That should give the Board an incentive to get things done promptly and satisfactorily from a users’ standpoint – otherwise nobody will “take the train” with its approved tariff (my analogy) if there are better and cheaper ways of getting there from here without recourse to a tariffed means of transportation. Nobody will use tariffs that are not attractive and not mandatory.  Eventually, Parliament will figure this out and the Board will have to be reinvented or eliminated.

Is the SCC On the Horizon?

Given the proximity in time of the making available judgments to the  Access Copyright judgment – and the common thread of Copyright Board tariffs, will we see the SCC once again take on more than one copyright case at once, as we saw in the 2012 great Canadian copyright “pentalogy”? Perhaps now a “duet” of decisions?

The big difference between this and the pentalogy situation is that four of the pentalogy cases involved some interesting, urgent and close issues that called out for the Court’s attention, and which were interrelated to some considerable extent – and the Board needed to be corrected in some important respects and indeed was. One of the decisions, Re:Sound v. Motion Picture Theatre Associations of Canada , 2012 SCC 38, was not close in any way and the mystery remains as to why leave to appeal was even granted, since everyone including the Board but somehow excluding Re:Sound and its counsel seemed to understand that the meaning of the word “excludes” does not include “includes”.

In the current situation, the FCA’s judgements on the mandatory tariff issue in the Access Copyright v. York case and the making available judgment would both seem to be “bullet proof” lengthy and detailed decisions by unanimous panels of the FCA and penned by very experienced appellate justices. That doesn’t mean that leave won’t be sought, given the amount of money potentially involved, or even granted in either case.  However, I will go on record to predict that it is very unlikely that the FCA will be reversed by the SCC at the end of the day in either of these cases.

Conclusion

The FCA has recently delivered two stunning, highly documented, extremely lucid and ultra important judgments involving Copyright Board tariffs that definitely teach and confirm some very essential lessons, which include:

• Tariffs such as those sought by Access Copyright and SOCAN are not mandatory for users. This is based upon nearly eight decades of SCC jurisprudence that in turn reaches back to at least 1894
• The Copyright Board has considerable scope to set rates – including a zero rate where there is insufficient evidence to justify a tariff. But deference by the FCA won’t make the tariffs acceptable to the public if the tariffs are not sensible and timely
• The Copyright Board needs to be mindful of basic principles of statutory interpretation, including the basic and obvious axiom that international law must not be misused so as to misconstrue domestic law 
• As attractive as the exercise may have been, and even by the generous standard of “reasonableness”, the Board was very unreasonable in its venture into the “vibe” of international law.

Whatever happens – or more likely does not happen – in the SCC, it is only a matter of time before Ministers focus on the apparently total lack of tangible evidence of progress in Copyright Board reform. The Board now has a lot more money, almost no visible sign of meaningful activity, and no evidence of any plans that will significantly make a difference. With due respect and tough love, I must reiterate that “revamping its website” and launching a Twitter account won’t help in any significant way with the underlying issues and problems. When Ministers get around to the Copyright Board, which is bound to happen even if overall copyright reform bogs down as it usually does, these recent decisions are bound to be on their minds.

HPK