AI Litigation for the Canadian Nation

(from Kubrick’s visionary 1968 film, 2001: A Space Odyssey. AI is NOT a new concept.)

 There is a massive lawsuit underway against a number of companies comprising “OpenAI” (i.e. ChatGPT) for “misappropriation” of major Canadian news media material. It also alleges breach of ss. 3, 27 and 41 of the Copyright Act with apparently very few material facts or particulars about how these provisions were breached. “Misappropriation” is not a concept recognized by Canadian copyright law, as I explain below. Section 3 of the Copyright Act is the centrepiece of Canada’s complex copyright legislation and contains many separate and distinct provisions, none of which are identified in the Statement of Claim. It also alleges prohibited TPM circumvention, breaching terms of use, and unjust enrichment.

Michael Geist was quick off the mark with a useful analysis of some of the many difficulties that the plaintiffs face in this lawsuit, its international context, and his prediction that this is mainly about getting a settlement and a licensing deal. He followed up with a podcast with Prof. Robert Diab from Thompson Rivers University, who has also written about this case.

Actually, the case for the plaintiffs could be even weaker and more problematic than Michael or Prof. Diab suggest.

The Plaintiffs are “Canada’s leading media companies and news publishers (collectively, the “News Media Companies”)” including CBC and Canadian Press.

It was brought by the same very respected law firm that vigorously defended the concept of fair dealing in the Supreme Court of Canada in the York University case on behalf of Prof. Ariel Katz, as an intervener. Here’s the law firm’s press release.

This mega action was brought in the Superior Court of Ontario, perhaps because the Federal Court might conceivably have been dismissive of a lawsuit predicated primarily on “misappropriation”, which is a tort and a particularly vague one – and NOT a cause of action pursuant to the Copyright Act (see below). Indeed, the Federal Court conceivably might summarily toss any litigation focussed on “misappropriation”. BTW, the Ontario Court of Appeal successfully disentangled the muddling of misappropriation of personality and copyright in the ill-fated Glenn Gould case back in 1998. See Gould Estate v. Stoddart Publishing Co. Ltd., 1998 CanLII 5513 (ON CA), <https://canlii.ca/t/6gw8>

It will be interesting to see who ends up representing  the defendants here – and how the proceedings unfold.  Based on the copyright claims alone, this case could conceivably get bogged down at the outset and, if it ever does get going, for years to come, and perhaps never achieve a positive adjudicated outcome or even a satisfactory settlement from the plaintiffs’ point of view.

It will be interesting to see how the apparent lack of specificity, material facts, and particulars in the pleading and other issues could play out in procedural wrangles that could drag on with motions and discovery for a very long time. Even if the copyright causes of action survive, it is easy to predict that defences could potentially include the concepts of fair dealing, implied right, and simply non-infringement. Once again, as I’ve said, “misappropriation” is not something recognized by Canadian copyright law.

“Misappropriation” is a tort concept – i.e. judge-made common law that establishes liability for such things as negligence, product liability, taking of personality rights, etc. I shall never forget the great Prof. Harry Glasbeek’s impassioned lesson in 1^st year law school at Osgoode about how a Scottish woman was able to successfully sue after finding a dead decomposed snail in a bottle of ginger beer that she had partially consumed. See  Donoghue v Stevenson. That was a landmark of judge made tort law from the English House of Lords in 1932.

Some tort law finds its way into statute. Much of it does not. Canada’s Copyright Act explicitly excludes tort concepts. Copyright lawyers are – or ought to be - aware of the 1979 SCC decision that prominently mentioned the then very young and now the late Hon. Roger Hughes, namely Compo Co. Ltd. v. Blue Crest Music et al., 1979 CanLII 6 (SCC), [1980] 1 SCR 357, <https://canlii.ca/t/1mjth> wherein the great Justice Estey stated:

Mr. Hughes for the respondent in answer to a question from the Bench put it very well when he said that copyright law is neither tort law nor property law in classifi­cation, but is statutory law. It neither cuts across existing rights in property or conduct nor falls between rights and obligations heretofore existing in the common law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute. This creature of statute has been known to the law of England at least since the days of Queen Anne when the first copyright statute was passed. It does not assist the interpretive analysis to import tort concepts. The legislation speaks for itself and the actions of the appellant must be measured accord­ing to the terms of the statute.

(highlight, emphasis & underline added)

Needless to say, there is also the very important and venerable s. 89 of the Copyright Act:

No copyright, etc., except by statute

89 No person is entitled to copyright otherwise than under and in accordance with this Act or any other Act of Parliament, but nothing in this section shall be construed as abrogating any right or jurisdiction in respect of a breach of trust or confidence.

1997, c. 24, s. 50 (highlight, emphasis & underline added)

See  Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68 (CanLII), [2012] 3 SCR 489, <https://canlii.ca/t/fv76k> paras. 81, 82.

The quantum of damages sought is beyond huge – potentially statutory damages of $20,000 for each of the “hundreds of thousands, if not millions, of Owned Works across the Websites” allegedly infringed. Theoretically, that’s in the Billions. Naturally, mega injunctive relief is also sought.

Here is Section 3 of the Copyright Act. Which of these provisions are implicated here and how? The Statement of Claim – in all of its 84 pages – does not tell us:

Copyright in works

3 (1) For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

(a) to produce, reproduce, perform or publish any translation of the work,

(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,

(h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,

(i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and

(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

and to authorize any such acts.

BTW, there are also allegations of TPM infringement, breach of contract, and unjust enrichment.

The TPM issue could also be interesting because TPMs are also involved in the Blacklock’s litigation, which is presently in the Federal Court of Appeal and is likely to be finally resolved long before this AI litigation even gets fully off the ground, if ever.

Here’s the Plaintiffs’ law firm’s press release. Here’s some coverage in the NY Times.

There is also a recent lawsuit in BC based by Canlii against Clearway et al. Canlii is the very important free database of Canadian legal decisions. Here’s the Statement of Claim filed in the Supreme Court of British Columbia on November 4, 2024, also from a major law firm.  This also involves AI and the Statement of Claim alleges misappropriation, misuse, conversion, and unjust enrichment. Again, one can expect procedural issues that could last for years to come.

Stay tuned for future developments on these lawsuits. But don’t expect anything conclusive any time soon.

AI is a huge growth industry, for better or worse, and affects virtually every sector. And it is now the centrepiece of lots of litigation in Canada and elsewhere. This is inevitable given the nature of the legal profession. The lawsuits will presumably unfold with much deliberation and will hopefully be well argued by all concerned. This is probably better than some hasty and panicked legislation prompted by political opportunism that could conceivably result in bad cures for misdiagnosed problems.

HPK

The Copyright Board Begins 2021 with Less Transparency and More Potentially Dysfunctional Delays

 

Just in time for Christmas, 2020, the Governor in Council implemented the long-awaited Time Limits regulations regarding the Copyright Board – which were published on December 23, 2020, ironically more than 1.5 years after the preliminary announcement and consultation.

The Time Limits in Respect of Matters Before the Copyright Board Regulations: SOR/2020-264 are now in place.

This does not appear to solve and does appear to continue and confirm the main problems I identified on April 29, 2019. The Board often keeps cases open for long after a hearing has supposedly concluded or should have concluded. Normal courts and tribunals just don’t do that. These regulations explicitly permit this to be done.

Here’s the deal:

Proposed tariff

2 The Board must make a decision with respect to the approval of a proposed tariff under subsection 70(1) or 83(8) of the Act

·        (a) if the Board holds any written or oral hearings in respect of the proposed tariff, within the period of 12 months after the day that is fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board; and

·        (b) in any other case, before the day on which the effective period of the proposed tariff begins.

Royalty rates or terms and conditions

3 The Board must make a decision with respect to the fixing of royalty rates or their related terms and conditions, or both, under subsection 71(2) of the Act within the period of 12 months after the day that is fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board.

Final day for submissions

4 If, on or after the day fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board, the Board or a case manager fixes another day as the final day on which any party may present their written or oral submissions to the Board, that later day is not considered to be the final day for the purpose of determining the 12-month period referred to in paragraph 2(a) or section 3.

            (Highlight and emphasis added)

So, the Board or a case manager can keep a case open for a long, long time. And that has happened many times.

And as if that’s not enough, there's still an "exceptional circumstances" loophole.

Extension of time limit

6 (1) The Board or a case manager may, in exceptional circumstances, give a direction or make an order that extends a period referred to in section 2 or 3 and sets out the extended period and the exceptional circumstances that justify the extension.

            (highlight and emphasis added)

I commented through the official consultation process at the time to the officials in charge of this project on May 27, 2020 here.

One of the possible contributing factors to the Board’s perennially dilatory delivery of decisions that nobody wants to acknowledge may be its apparently unique disincentive mechanism for retired members to finish off any work relating to pending decisions in a timely manner. For example, it took former Chair William Vancise almost four years after his retirement to finish off his pending decisions at the Board.

Whatever the reason for the unusual, if not unique, open-ended nature of this provision for retired members, it certainly does not encourage confidence in the expeditious renderings of decisions. Judges in the Federal Courts get only 8 weeks to finish off their decisions after they cease to hold office. Supreme Court of Canada justices have six months after they retire. 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. In some provinces, such time lines are included in legislation.” The Federal Court, Federal Court of Appeal and Supreme Court of Canada routinely render decisions on matters much more complex than any Copyright Board case in six months following the hearing.

The PMNOC (patented medicines) regime – which involves extremely complex evidence and hearings involving huge amounts of money – must now be completed from start to finish in the Federal Court – including the judgment – within 24 months. I’ve discussed this in my submission on the Copyright Board reform process on 2017.

In fact, here’s a very recent important complex 92 page PMNOC decision from the Chief Justice himself of the Federal Court rendered in exactly 24 months from start to finish as required by law. See Allergan Inc. v. Sandoz Canada Inc., 2020 FC 1189 (CanLII), <http://canlii.ca/t/jcchv>.

Overall, these new Copyright Board regulations would appear to accomplish nothing other than to legitimize and confirm a culture of delay that is unique among Canadian courts and tribunals and likely by any international comparative measures. In the USA, copyright royalty decisions are rendered within 11 months start to finish – because that’s what the law requires.

The US Copyright Tribunal has a hard deadline requirement. It must issue its decisions within 11 months as follows:

§352.2   Timing.

The Copyright Royalty Judges will issue their determination within 11 months of the date of the post-discovery settlement conference or 15 days before the expiration of the existing rates or terms in a proceeding to determine successors to rates or terms that will expire on a specific date, whichever date first occurs. The date the determination is “issued” refers to the date of the order.

(highlight added)

Above all, let’s be frank here. The Copyright Board rarely holds more than two or three contested hearings a year and usually and lately less  or even none and rarely issues more than five actual “tariffs” per year, many if not most of which are uncontested or settled on consent.  The Board rarely releases more than one or two substantive decisions a year – and sometimes less. The many tariffs that are uncontested or dealt with on consent should not create the impression that the Board has a large workload, despite Prof. de Beer’s controversial study from 2015 that incongruously managed to parlay the Board’s own data of 74 previous tariffs then to date into the astonishing, incredible and frankly surreal number of 852. This study appears to have been instrumental in getting the Board another million a year in its budget. See my detailed critique of Prof. de Beer’s “statistical” methodology and analysis here. Even the Board’s own figure of 74 was exaggerated, since this figure reflected a number of minor “redeterminations” and other less than significant events.

But it was is still the Board’s own number, as calculated from the Board’s own posted information – now unavailable thanks to the Board’s expensive, new and much less useful website. Still, this is less than 10% of Prof. de Beer’s number of 852. Prof. de Beer’s problematic analysis is cited in the Government’s unconvincing rationale and explanation for the new regulations.

Here from my 2015 blog are Some Comparative Observations & Stats on the Copyright Board, Selected Canadian Tribunals & the Supreme Court of Canada.

The Board’s new and very expensive  $757,548.50 (+?) website manages to make it even more difficult if not impossible to extrapolate the analysis that I was able to do – pro bono and at my own initiative  – to criticize Prof. de Beer’s study or, indeed, to track the past or present workload and efficiency of the Board.

Indeed, the Board’s new website is a serious step backwards in terms of transparency and utility. The only obviously needed improvement – which could have been done years ago for little if any cost  – was to provide a functioning search facility. This was not rocket science. Lots of Boards and government sites had this without Decisia. It remained dysfunctional for as long as I can remember, despite regular large fees paid for third party website maintenance. After much kvetching from me, the Board’s decisions from 2020 are now on Canlii – but only for 2020 and none of this batch is very significant. Indeed, the Board’s website is not even up to date for the listing of 2020 decisions. For example, some of the earlier decisions from 2020 that are now on Canlii aren’t even on the Board’s own website.

There is no reason whatsoever why Canlii wasn’t long ago given the Board’s whole decision and tariff database back at least to 1990.  There would be virtually zero cost in making this happen. The older pre-1990 stuff is on the CPR database and I’m sure that the Board must have it all in digital format.  It would be shocking if it did not.

Again all this could have been at virtually zero cost. I’ve raised this and asked the Board about it many times with no satisfactory or sensible answer. The absence of the Board’s decision from Canlii since 1990 is nothing short of an affront to the concept of access to justice and transparency. This can still be remedied at zero cost – but the Board appears intent on keeping its decision record  and a lot of other information as obscure as possible – and even more so than before with its new website. This new website was supposed to provide  “an intuitive architecture and an improved navigation system”.  It is conceivable that, in the eyes of an uninformed non-lawyer member of the public who is totally unfamiliar with the Board or copyright law, the new website might initially seem more attractive than the old. But that is not the Board’s audience. Even with all my prompts,  the Board still only has 49 followers  - most of whom were already well in the loop.

The Board held no hearings in 2020 and has postponed the three that were scheduled with no new date in sight. Whatever the reason, it surely has nothing to do with COVID. The rest of the Canadian justice system at all levels up to and including the Supreme Court of Canada has adapted to COVID and even managed to make most aspects of the hearing process faster, easier and cheaper using Zoom and other long tried and true technology – such as online filing.

The Copyright Board goes into 2021 with a new Chair, namely The Honourable Luc Martineau from Canada’s Federal Court. We wish him well. Hopefully, his experience at the Federal Court, which is vastly more productive and efficient than the Copyright Board by any measure, will help to counteract the ingrained and now, regrettably, continued culture of systemic delay that has been confirmed by the new regulations. He is the first judge from the Federal Courts to be the Chair of the Copyright Board, which is consistent with one of the implicit suggestion in the only published comment of which I’m aware from the outgoing Chair Justice Robert Blair, who retired as Chair after only term. Justice Blair stated in 2018, in the context of the Board’s expertise or lack thereof, that: “ 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!”

However, the Board continues into 2021 with a Vice Chair and Secretary General who are both non-lawyers.  This has never been the case before that I can remember – which goes back to the 1980’s. Moreover, both of these individuals hail from the collective-friendly culture of the Department of Canadian Heritage. This may partially explain the Board’s new and less transparent website and absence from Canlii. Lawyers tend to believe – or should believe –  in access and transparency when it comes to legal decisions and case information. This is fundamental to the rule of law.

Obscurity and difficulty or impossibility in finding past decisions and other information can only confer an advantage on large collectives, large institutional users, and their large law firms, who may be able to work around these problems. This new website is very unhelpful – and potentially a real setback – to the many smaller users, user associations and individuals who find participations in Copyright Board proceedings so discouraging, difficult and increasingly even impossible. Whatever may have been the intention, this new website will help to shield the Board from greater scrutiny.

Another serious but fixable problem with the new website is that virtually all previous links on my blog and anywhere else to Board decisions and other materials have now rendered useless. The links could have easily been kept active at no cost with a URL redirect – and this could presumably even now be easily restored – at virtually no cost – if the Board kept an archive of its old website, which it most assuredly should have done.

Rearranging or repainting the deck chairs isn’t going to repair the unique and dilatory dysfunction at Canada’s Copyright Board.

The Canadian Senate Committee studying the Board described it as “ dated, dysfunctional and in dire need of reform”. That reform simply hasn’t happened. Indeed, things have gotten worse.

The saving grace is that the Supreme Court of Canada and the Federal Court of Appeal have both said that the Board’s tariffs are optional and not mandatory. One would have thought that this would have provided a strong impetus for reform within the Board and its government overseers. It’s obvious that a reasonably priced, timely tariff that would provide convenient access to a satisfactory repertoire with reasonable terms and conditions would be readily adopted without any compulsion, much less the “oppression and extortion” that the Courts have warned about since 1894.

The Supreme Court is about to look at this again and will likely affirm that it said what it meant and meant what it said in 2015 when Prof. Ariel Katz, Prof. David Lametti (as he then was) and I as their counsel won the mandatory tariff victory in that Court in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <http://canlii.ca/t/gm8b0>.  The Supreme Court will likely hear this case in the late spring or the fall of 2021 – with a decision to follow in about six months and maybe even less  – unlike the many years that the Board typically takes to decide much less complex and important matters.

There can be no doubt that the major Canadian copyright collectives and content owners will now try to bypass these compelling judgements from the Supreme Court and the Federal Court of Appeal and short circuit the forthcoming Supreme Court hearing with expensive lobbying campaigns for a legislative fix that will be paid for by their membership, as usual. If Parliament decides to weigh in on this issue, it clearly should do so in a manner than confirms the existing state of the law that is in turn based on nearly eight decades of Supreme Court of Canada jurisprudence.

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

Keatley v. Teranet: Land Surveys, the Law of the Land and Access to Justice – The Supremes will Have Their Hands Full but will They Have Everything they Need?

(Clarke Surveyors Inc.)

An interesting and potentially very important copyright case is about to the heard by the Supreme Court of Canada on appeal from the Ontario Court of Appeal in the Keatley v. Teranet case. Here’s the SCC’s summary – which is not official but which is concise and useful. Here are a few points to note.

The case concerns copyright in land surveys – which are an essential element in Ontario of proof of land ownership and which are a key component of all real estate transactions. These surveys are required by law and required to be registered on title and the Government of Ontario has privatized key aspects of the land registration system to an entity known as Teranet. The case is focussed on crown copyright and s. 12 of the Copyright Act.

Teranet, which is resisting the payment of additional fees to surveyors beyond that which they were paid originally for doing the survey – has never disputed the notion that copyright subsists in land surveys.  Indeed, the two actual parties (Keatley and Teranet) agreed for purposes of this litigation that copyright so subsists, although this crucial issue is far from clear and certainly not obvious.

There are a number of interveners in the case, who are providing valuable and essential input under the relatively new intervention constraints which permit at most a 10-page factum and five minutes of oral argument. Here is a link to all the factums. Particularly noteworthy IMHO are the intervener factums of the Attorney General of Canada, Canadian Association of Law Libraries, CANLII and the Federation of Law Societies, and the Centre for Intellectual Property Policy + Prof. Ariel Katz.

Also, of great interest, is that that similar and related issues are pending in the case of  P.S. Knight Co. Ltd. v. Canadian Standards Association, 2018 FCA 222, recently decided in a split decision by the FCA favouring the CSA. This case concerned whether copyright exists and is enforceable with respect to privately developed electrical safety codes that become incorporated by reference into Canadian law. The decision was rendered on December 7, 2018 and CSA predictably quickly sought and has been granted leave to intervene in the Keatley case in the SCC. Surprisingly, however, P.S. Knight, did not even try to seek leave to intervene in Keatley, although it has asked for leave appeal its own case to the SCC. Although the Knight decision has been referred to and the obvious issue of access to justice has been raised in some of the intervener material, the Knight case might have forced this issue to the forefront. Clearly, these two cases will not be heard together – which might have been a possibility and arguably would have been ideal. Moreover, it is entirely possible that leave to appeal won’t even be granted in the Knight case. In any event, it is very likely that, if normal timelines are followed, the Keatley case will be decided long before the Knight case is even heard, assuming that P.S. Knight gets leave to appeal.

In any event, and without involvement of P.S. Knight, the Keatley case will go forward and will be heard on March 29, 2019. The webcast will be available here.

HPK