Blacklock’s Botched Blaming & Begging

Blacklock’s Holly Doan has posted a rather hysterical, histrionic, inaccurate, and misleading post that, among other things, misrepresents Prof. Michael Geist’s blog. This Blacklock’s bravura is telling – if for no other reason than its failing to suggest ANY credible ground of appeal of this heavily fact-based and legally solid decision. Once again, here’s the judgment:

1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>

Not to be outdone, Ms. Doan’s husband, Tom Korski, appears in a sadly softball podcast interview.

Blacklock’s has kindly provided both of these for public consumption without a paywall:

https://www.blacklocks.ca/this-will-be-law-september-1/#cdnpoli

https://x.com/mindingottawa/status/1801211869656449445

Both of them misstate the careful findings of fact and law by Justice Roy, whose exemplary judgment deals with the use of “licitly” acquired passwords and fair dealing.

Those entities with competently designed websites with “effective” TPMs who understand basic copyright law have nothing to fear from this judgment. Indeed, they should welcome it because it reminds everyone that illicit hacking of a password or content sharing that is not fair dealing can lead to big trouble. The manner in which the work is obtained will go to the fair dealing analysis, but does not necessarily preclude fair dealing.

After all these years and its long litany of litigation losses, Blacklock’s still offers only an individual membership level online. Indeed, its botched business model seems to be that of selling single subscriptions to government departments, posting “inaccurate, deceptive or inflammatory articles”, and then using ATIPs to identify and pursue what it considers to be illegal sharing of passwords and/or content.

If Blacklock’s wants to fundraise off a devastating loss (which is a Donald Trump trick), then Blacklock’s should not mislead potential sympathizers, if there are any. This is clearly unlikely to attract small donors who might otherwise contribute to save endangered elephants or support other meritorious causes. The big players may predictably conclude that any appeal would likely fail and thus simply reinforce Justice Roy’s decision, which in any event is actually helpful to them. Moreover, the SCC is very unlikely to take this case if leave is somehow sought because the SCC doesn’t review fact finding or rewrite statutes. In this case, the statute is what it is and what it has been for the last 12 years re TPMs and the last 100+ years re fair dealing – including several notable decisions since the landmark 2004 CCH decision. Moreover, Blacklock’s Hail Mary fantasy of a legislative fix is extremely unlikely to happen. Both Liberal and Conservative governments have known for decades that controversial copyright revision is not a hill to die on and can indeed be fatal to the careers of whichever politicians lead the charge.

It should be said that the Department of Justice ought to be very pleased with the result of this litigation and the work done by Alexander Gay, General Counsel. Likewise, CIPPIC and Gowlings with respect to its partner James Plotkin’s exemplary intervention.

BTW, where’s @bsookman’s belated Blacklock’s blog?

HPK

Big Black Eye for Bad Built Blacklock’s Business Model: Long Live Felicitous Licit Liberty!

 Blacklock’s lengthy litany of litigation losses has now been extended notably with the long-awaited Federal Court  judgment from Justice Roy regarding TPMs and Fair Dealing that is both monumental and minimal in interesting and important ways. See 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>

• It is monumental because it is 67 pages of careful, detailed, heavily fact-based findings that are likely bullet proof on appeal because there are no “palpable and overriding” errors and no extricable legal conclusions that are wrong in any way. Indeed, its correctness and common sense are commendable.
• It is minimal because it confirms the obvious point that there someone who “licitly”, i.e. legally, accesses a website without hacking or otherwise illicitly circumventing a TPM can share content consistent with Canadian fair dealing law that goes back to 1911 and the SCC’s venerable “implied right” doctrine.
• No animals were injured in this case – there was no hacking, descrambling or other illicit activity involved. The Government was doing what it paid for and doing its job.
• Enlightened media providers such as the Globe and Mail, NY Times, etc. should  welcome this decision because their sophisticated websites can’t be hacked and the sharing of their content e.g. via cutting pasting for fair dealing purposes is good for business.
• Contrary to some high-powered  social media whining, there is no basis for any argument and no record, in any case, for any argument based on the 2020 Canada-USA “CUSMA” agreement.
• If Blacklock’s (“BR”) is even thinking of an appeal, it may first wish to consider that its likely lack of success will dramatically reinforce this decision. All the more so if it gets to the SCC. But let Blacklock’s  appeal – it will be a “Go ahead, make my day” moment for me and many other observers and potential interveners.
• The likelihood of a legislative intervention on this issue and in response to this decision is close to absolute zero.
• Congratulations to Alexander Gay for the Attorney General of Canada (“AGC”) and James Plotkin (recently made partner  of Gowlings) for CIPPIC who both did superb work.

 Likely to be continued…

 HPK

(P.S.: Let me remind readers, as  always, that nothing on this blog is legal advice.)

 

My ABC Copyright "Valedictory"

On 16/6/2023 I was honoured to give a keynote "Valedictory" address to the ABCCopyright  conference. Here are my slides. I hope I have encouraged some "militant librarians". Get ready for a major counterattack in fall re mandatory tariffs & fair dealing.

HPK

Blacklock’s Day of Reckoning?

 

(Blacklocks.ca)

For over nine years, Blacklock’s has pursued a remarkably determined litigation strategy that has involved nearly two dozen Federal Court lawsuits, including 13 against the Federal Government and its agencies. Its efforts against the Federal Government have been notably unsuccessful and none of its efforts against other parties have resulted in any successful legal precedents from Blacklock’s standpoint. On June 7-9, 2023, the Federal Court heard a summary judgment motion brought by the Government with a public interest intervention by CIPPIC that could bring this litany of litigation to the end.  The motion was heard by Justice Yvan Roy, a very thorough and experienced judge. and his decision is pending.

I’ve written about Blacklock’s litigation many times before. See here. I don’t normally comment on cases where judgment is pending – but this is an exception that calls out for comment because of its public interest importance and its unique long history.

The Attorney General of Canada (“AGC”) was represented by its counsel, Alexander Gay. Blacklock’s was represented by Scott Miller of MBM.  The intervener on behalf of the public interest was CIPPIC, represented by James Plotkin of Gowlings. These are all very experienced counsel.

Here are some brief point form observations based on the written material in the case. I did not actually attend the hearing, which was held “live” and was not virtual or hybrid, so it was not available via Zoom:

• A very important case – as shown by the unusually great role of intervener CIPPIC in terms of length of memo (20 pages) and time – and hour and then extended. Indeed, having resisted CIPPIC’s involvement, Blacklock’s ultimately engaged – with an 18-page response of CIPPIC’s important public interest submissions
• No hacking or decrypting involved here
• No evidence of any attempt to “descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure” (highlight added)
• The law does NOT clearly cover simple sharing of a simple password in the definition of “circumvent” found in s. 41
• No mention in legislation of the word or concept of “to share”
• Just sharing of simple lawfully acquired password by a government worker so she could do her research job and collaborate with colleagues
• No evidence of actual copyright infringement or other listed examples of circumvention
• No expert evidence that the TPM was “effective”
• Like sharing a hotel pass key with family members - or alarm system password with renovation contractors or cleaning staff, who then shares it with their employees or subcontractors?
• Even if there somehow was “circumvention” in this case, is it trumped by any absence of evidence of infringing reproduction or, very importantly, trumped by “fair dealing”?
• No piracy – this is not about getting free movies or music – it’s about government engaging in perfectly legal fair dealing…

In any case, there is an important previous ruling in 2016 that Government’s use of Blacklock material was clearly “fair dealing. There was a strong finding of fair dealing on the part of Government that public servants were just doing their research as allowed by the Copyright Act….

1395804 Ontario Ltd. v. Canada (Attorney General), 2016 FC 1255 (CanLII), [2017] 2 FCR 256, <https://canlii.ca/t/gvrbx>

[33]      I am satisfied that the Department’s acknowledged use of the two Blacklock’s articles constituted fair dealing. There is no question that the circulation of this news copy within the Department was done for a proper research purpose. There is also no question that the admitted scope of use was, in the circumstances, fair.

Blacklock’s could have, should have, but didn’t plead circumvention at the time and are now trying with a new counsel to do so in numerous lawsuits against 13 other Federal Government departments and agencies and presumably many others.

BTW, here is the applicable definition of “circumvent”:

circumvent means,

(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition technological protection measure, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner…(highlight added)

There is great interest in this case and the outcome is eagerly awaited.

HPK

A Fair Deal for Canada on Fair Dealing

Kate Taylor - Globe and Mail

The recent sadly and badly misinformed “opinion” dated May 20, 2023 by veteran Globe and Mail cultural columnist Kate Taylor entitled “Copyright loophole for education should be plugged”  highlights the need for the educational sector to step up to the plate on fair dealing and copyright revision. Her “opinion”, which some might mistake for journalism given her 34 year tenure with the Globe and Mail (which regards itself as “Canada’s National Newspaper”), could have been written by lobbyists for Access Copyright and publisher interests, though it would lack her hallmark and that of the Globe and Mail.

This is not the first time she has blatantly opined for Access Copyright. Here she is in 2016 using her Globe and Mail podium, which does not even pretend to be an “opinion” piece as does the current effort.

• She doesn’t seem to understand that fair dealing rights are “users’ rights” that must be given a “large and liberal interpretation” and are “always available.” She needn’t take my word for this. Those statements come from the Chief Justice of Canada, Beverly McLachlin in the landmark 2004 CCH v. LSUC decision. Above all, fair dealing is not a “loophole”. Fair dealing rights are absolutely essential and integral to the concept of copyright in Canada and every other comparable jurisdiction.
• She doesn’t seem to know the difference in terminology between “fair dealing” (Canada) and “fair use” (USA).
• She is apparently unaware that the USA has provided more and more explicit rights to educators since 1976 than Canada has ever done, i.e. by hard wiring teaching (including multiple copies for classroom use), scholarship, or research” into its copyright law since 1976. See 17 USC 107. Nobody could credibly suggest that this is non-compliant with international treaties. It’s simply absurd to suggest that Canada is an “outlier” in this respect; if anything, our fair dealing users’ rights need to go even farther to catch up with the USA.
• She is apparently unaware that key Canadian SCC fair dealing decisions, including the landmark 2012 Alberta v. Access Copyright and the SOCAN v. Bell  iTunes preview cases, were decided on the pre-2012 law that goes back to 1921 before the word “education” was added to s. 29. 
• She is misleading readers by suggesting that the addition of the word “education” to s. 29 of the Copyright Act via the 2012 Copyright Modernization Act caused the decline in Access Copyright’s revenues. Indeed, the 2019 INDU Committee Report from Parliament confirms that:
• ... in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),5 the SCC concluded that teachers could rely on the fair dealing exception when reproducing works for their students since these students were engaging in “private study.” The SCC reached this conclusion without relying on an explicit fair dealing exception for “education”—which, as noted above, has since been added to the Act.
• See also:

Prof. Ariel Katz’s 2018 testimony at the INDU hearings explaining that  correlation does not imply causation and outlining the many of the actual reasons for Access Copyright’s declining revenues
Prof. Ariel Katz’s 2014 blog about The Loss of Access Copyright Royalties and the Effect on Publishers: Sifting Fact from Fiction, which debunks the myths about the Oxford University Press “OUP”)decision close its Canadian K-12 division. Ms. Taylor in her current opinion to continues to attempt to refloat the OUP fiction

There have been no court cases since 2012 that have specifically considered the effect, if any, of the 2012 addition of the word “education” with respect to the fair dealing rights of educators, librarians, students and other essential “users” of the copyright system. In any event, the effect of the dealing on the market for the work being copied is one of the factors that courts would consider in determining fairness or lack thereof and, if Ms. Taylor is somehow correct in her assertion of causal connection, then copyright owners are already protected – so there’s another reason why there’s no loophole that needs to be fixed.

She is apparently unaware of the greatly increased spending since 2012 that bypasses Access Copyright not just because tariffs aren’t mandatory (as Ariel Katz and I have been preaching for a decade or so and the SCC agreed in 2021) but because Access Copyright’s “tariff” offers such poor value. Its repertoire is very limited – especially in the post-secondary educational (“PSE”) sector – and its terms of use are too limited to justify any more than a small fraction of their “approved” tariff, which is:

• $24.80 per FTE student, if the educational institution is a university.
• $9.54 per FTE student, if another educational institution (i.e. college)

The PSE sector is spending more money than ever though acquisitions, direct licensing, and dealing with the much more responsible and responsive American Copyright Clearance Center for transactional licences. Access Copyright is notoriously inefficient in its distribution, offers very limited “rights”, and its repertoire is focussed on Canadian literature – which is not a major component in the PSE sector. Most Canadian university or college grads will never need to read Margaret Atwood or Alice Munro. Maybe they should for their literary betterment. But such material is not part of the curriculum for engineers, doctors, lawyers, computer programmers, and the overwhelming majority of PSE students.

Access Copyright persists in attempting to collect revenues based upon repertoire for which it has NO rights. It once was able to get educational institutions to hold their noses on its dubious and now defunct “indemnity” scheme, which may have appeared to offer some practical value to some institutions. I’ve written a lot about this in the past, including this from 2009.

I have often suggested that Access Copyright could serve a useful purpose if it offered decent value to license its actual repertoire based upon useful terms and conditions at a reasonable price. But that price would presumably be a fraction – perhaps 10% - of what it currently sees itself entitled.

BTW, Access Copyright’s website is deceptively out of date regarding the PSE tariff case law, where it stops in 2017.

Ms. Taylor concludes her perfect puff piece for Access Copyright by saying “The legalized robbery of Canadian authors by the education sector is an international embarrassment and a national shame.” (emphasis and highlight added) Frankly, the national shame is that Canada’s national newspaper would publish something this misinformed, outrageous, and imbalanced that might get mistaken, due to its provenance and the Globe and Mail’s status, for credible journalism or analysis. BTW, I posted several timely tweets about this “opinion” and compiled  them for the comments section for the Globe and Mail, which has apparently decided not to publish my comment  in the “comments” feature following her opinion.

All that said, Ms. Taylor’s analytically and factually challenged “opinion” should at least be useful as a wakeup call for the educational sector – which frankly has not stepped up to the plate with sufficient vigor and confidence since its great victory in the SCC in the 2021 Access Copyright case, for which Ariel Katz laid the legal foundation and influentially intervened and I made the prevailing arguments on behalf of the intervener Canadian Association of Research Libraries (“CARL”).

The good copyright news overall now is that we recently passed Passover this year without the feared fatal budget announcement regarding fair dealing or mandatory tariffs that this Government might have hidden away in Federal Budget. That’s the good news.

The bad news is that this doesn’t mean these dangers have passed, as Ms. Taylor’s opinion piece blatantly demonstrates. Although the Hon. Pablo Rodriguez has his hands full with his incredibly misguided legislation in the form of Bills C-11 (now passed)  and C-18 (the “link tax” bill), that doesn’t mean that he or his enabling officials have forgotten about copyright and the shrill and misinformed voices from Quebec (of which he is Trudeau’s “Lieutenant”) and Bay Street.

Wiser ministers know that copyright revision – other than very careful incremental changes – is not a hill to die on in Canada. Fortunately, there are two other ministers who will hopefully bring some essential legal and policy wisdom to the table, should this become necessary.  The Hon. F-P Champagne, the ISED minister, is actually the minister with historically primary responsibility for copyright. The Minister of Justice – the Hon. David Lametti – who is mentioned by name by Ms. Taylor – may also play a role. He was a leading copyright law professor at the McGill Faculty of Law for about 15 years before he ran for office. His department is responsible for ensuring the constitutionality of any legislation and is responsible for the review and drafting of legislation for the government. He was my client and appeared with me in his capacity as law professor and head of the Centre for Intellectual Property Policy at McGill in another important SCC case that helped to pave the way to the definitive 2021 SCC York ruling that Access Copyright tariffs aren’t mandatory. See Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615.

In the lull before the possible copyright storm, the best thing that the user community can do would be to follow the suggestion of Justice Abella in her last and crowning SCC decision of her illustrious career, namely to “actualize” their fair dealing rights as she puts it in the 2021 Access Copyright v. York University decision from the SCC.

As I’ve said before:

The victories of the PSE (post secondary education) sector are in peril – not only because of AC and its collaborators but because of sometimes unwise strategies in the PSE sector itself. Recall this important analysis by Prof. Ariel Katz following York’s defeat at the trial level in 2017: Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss. The fact that the AC litigation against York was not struck down early on and had to go the SCC and that York chose to bet the farm on a bad set of fair dealing guidelines and risk a severe smack down overall on fair dealing does not bode well for the future unless basic lessons have been learned – which is hopefully happening but is not yet evident. York very nearly lost that litigation. Fortunately, my brave client the Canadian Association of Research Libraries (“CARL”) and Prof. Ariel Katz were very instrumental in saving York from this fate – though it’s far from clear that all those responsible for York’s strategy actually appreciate our work.

It surely suggests that the PSE sector needs to update fair dealing guidelines and to follow Justice Abella’s wise words in the York decision:

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

(underline highlight & emphasis added)

This can only mean that the PSE sector needs to come up with viable fair dealing guidelines that are:

• Neither too permissive nor too defensive
• Sufficiently specific to be actually useful.
• Sufficiently to broad to enable adult responsibility by individual professors and library personnel without the need to seek legal advice or permission from so-called rights owners or their licensees (after all, that is what fair dealing is all about)
• Likely to stand up to scrutiny in the event of litigation.

As I’ve said before:

Perhaps York should have been rather more careful about what it wished for. Both the Federal Court and the FCA had to respond to the counterclaim, which they did as asked. I am on record from the beginning as having questioned not only the guidelines themselves, which emanate from AUCC (now UC) guidelines but York’s decision to needlessly, in my view, put them on trial. Essentially, I had suggested that York get a summary ruling on whether the tariff was mandatory – which should have been very easy at least after the 2015 SCC judgment – and not unnecessarily “bet the farm” on the controversial fair dealing guidelines. Here are some of my blogs in reverse chronological order.

The process of actualizing educators’ fair dealing rights, which includes updating fair dealing guidelines, is essential and may suffice to head off any improvident legislation, such as Ms. Taylor and her supporters would like to see. It is too important to be entrusted to any single organization. That said, it should not be unduly complicated, given the good beginning of the 2012 U of T guidelines with which I was closely involved. These could be satisfactorily updated relatively quickly by a very small number of experts. If different organizations separately develop new guidelines, then let the market decide which approach is better. This may prove more efficient than attempting to form a coalition that could result in delays and devolution to the lowest common denominator. Above all, the mistakes that almost resulted in defeat being snatched from the jaws of victory in the long saga of the York litigation as a result of problematic guidelines and litigation strategy must not be repeated.

The original 2012 U of T fair dealing guidelines were developed in a cooperative collaboration between usually contrasting viewpoints (Casey Chisick and I) under the wise leadership of the now retired and much missed U of T general counsel Steve Moate. I was pleased to have been part of this process. These were, IMHO, the best fair dealing guidelines to date and suggest a method and process of going forward. If Casey and I can agree on anything concerning copyright, chances are that it must be right!

U of T has recently controversially updated its fair dealing guidelines, supposedly in response to the 2021 York decision from the SCC. Here is the new version. I was NOT involved in this update because I was not invited. I and many others are very disappointed with these new guidelines which are a big step backwards and, in some respects, simply wrong and even harmful. I will not go into any detail now as to how they are less than helpful, other than to say this.

Overall, these revised 2022 (as slightly updated in early 2023) guidelines are a disappointing and, in several instances, questionable and even inaccurate revision and update. They are more restrictive for the PSE sector than the 2012 guidelines.

Overall, the guidelines have gone from a reasonably balanced “safe harbour” approach that  enabled and empowered fair dealing to a much more risk-averse restrictive approach that overly protects publishers and needlessly errs on the side of caution at the cost of good education, research, and private study. With three strong SCC fair dealing victories in the last decades and two recent strong SCC judgements that tariffs aren’t mandatory, why wouldn’t U of T offer more assertive and empowering guidelines for the benefit of teachers and, above all, students – in other words, the university community.

If the current government is unwise enough to follow the histrionic hyperbole of Access Copyright and powerful publishers as presented by Ms. Taylor, then the PSE sector must be ready to defend itself with a good offence. This might include:

• Clarifying that TPMs can be circumvented for fair dealing purposes
• Ensuring that users’ fair dealing rights cannot be overridden by contract or waiver
• Ensuring that if crown copyright is not abolished in its present form, then republication of any crown work that is not officially “secret” should be permitted as fair dealing. This would be almost as good as in the USA where the federal government has no copyright rights in its works
• Adding the two little words “such as” to the s. 29 fair dealing provision, consistent with American law.

Anyway, thank you to @ThatKateTaylor this unintentional call to arms to all those who care about a fair deal for fair dealing and other essential aspects of copyright in Canada.

HPK

Fair Dealing and the University of Toronto

The University of Toronto has sued a tutoring company, Easy Group Inc., for copyright infringement. Here is the U of T announcement dated May 11, 2022.

Since there is growing interest in this case, I have obtained the pleadings and post them here:

•   Statement of Claim dated May 9, 2022
•   Statement of Defence and Counterclaim dated June 24, 2022
•  Amended Statement of Defence and Counterclaim dated August 18, 2022
•  Reply and Statement of Defence to Counterclaim dated September 9, 2022

I make no comment on this case at this time, other than that it is clear from the pleadings that fair dealing could be a very major issue.

Speaking of fair dealing, U of T has recently revised its 2012 Fair Dealing Guidelines. Here’s the announcement from October 21, 2022 with links.

Unlike the 2012 Guidelines, I had no involvement in the 2022 revision. Other than that, I make no comment at this time on the 2022 U of T revised Fair Dealing Guidelines.

HPK

Canadian Copyright Today – Confrontations & Opportunities

(Robarts Library - University of Toronto)

Here is my overview of the state of Canadian copyright law developments at this time.

Bottom Line:

Access Copyright (“AC”) and the Association of Canadian Publishers (“ACP”) are on the warpath against Canadian education. AC had planned a “day of action” on Thursday, October 6, 2022 (postponed “because of unforeseen technical issues”) to “fix Canada’s Copyright Act”. (the “Act”). Guess what? The Act isn’t broken and doesn’t need fixing. As the Supreme Court of  Canada (“SCC”) recently said in what can only be seen as yet another consistent affirmation of users’ rights and setback for overly zealous and self-serving collectives:

[5]       I cannot agree with the Board’s interpretation of s. 2.4(1.1). The Copyright Act does not exist solely for the benefit of authors. Its overarching purpose is to balance authors’ and users’ rights by securing just rewards for authors while facilitating public access to works. When this balance is achieved, society is enriched. Authors are encouraged to produce more works, and users gain access to works which they can use to inspire their own original artistic and intellectual creations.

Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 (CanLII), <https://canlii.ca/t/jqgw0>

The ACP has made dangerous and outrageous copyright recommendations in its recent “Pre-Budget Consultations in Advance of the 2023 Budget”. These are:

ACP joins colleague associations in recommending that:

● Fair dealing for education should only apply when a work is not commercially available under licence by the owner or a collective.

● The Copyright Act be amended to clarify that tariffs approved by the Copyright Board are enforceable against infringers of copyright protected works subject to a tariff.

● Adequate statutory damages must be available to all copyright collectives.

Of course, we know that publishers and more recently collectives, despite their rhetoric,  don’t necessarily care about the best interests of creators and, indeed, sometimes act against such interests. Neither the Copyright Board not the Courts have yet directly confronted the issue of whether authors’ interests are adequately served by collectives. But this could happen sooner rather than later as authors figure out how to deal directly with users and bypass inefficient collectives and their law firms who too often seem intent on making simple things very complex and prolonged. Is this recently reported lawsuit by some Quebec songwriters against SOCAN the tip of a potentially huge iceberg?

The victories of the PSE (post secondary education) sector are in peril – not only because of AC and its collaborators but because of sometimes unwise strategies in the PSE sector itself. Recall this important analysis by Prof. Ariel Katz following York’s defeat at the trial level in 2017: Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss. The fact that the AC litigation against York was not struck down early on and had to go the SCC and that York chose to bet the farm on a bad set of fair dealing guidelines and risk a severe smack down overall on fair dealing does not bode well for the future unless basic lessons have been learned – which is hopefully happening but is not yet evident. York very nearly lost that litigation. Fortunately, my brave client the Canadian Association of Research Libraries (“CARL”) and Prof. Ariel Katz were very instrumental in saving York from this fate – though it’s far from clear that all those responsible for York’s strategy actually appreciate our work.

It seems clear that the PSE sector needs to update fair dealing guidelines and to follow Justice Abella’s wise words in the York decision:

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

The process of updating and actualizing is too important to be entrusted to any single organization. A way must be found to assimilate all valid inputs. The U of T fair dealing guidelines from a decade ago were developed in a cooperative collaboration between usually contrasting viewpoints (Casey Chisick and I) under the wise leadership of now retired U of T general counsel Steve Moate. I was pleased to have been part of this process. These were, IMHO, the best fair dealing guidelines to date and suggest a method and process of going forward.

Meanwhile, at the Government, the Minister of ISED – who should be primarily responsible for the copyright file – is apparently MIA – though his officials are still hopefully minding the fort.

The Minister of Heritage, who is also responsible for two very controversial bills - C-11 and C-18 – has been seduced by a dangerous mix of Quebec politics and sophisticated content industry lobbying into thinking that great glory lies ahead in maximalist copyright law revision. However, those who don’t know history are condemned to repeat it. This Minister and his controversial Parliamentary Secretary have yet to learn the lessons of their predecessors – such as Sheila Copps and Sarmite Bulte, who did so much wrong when it came to copyright and suffered the consequences. Better still, they should talk to James Moore and Tony Clement who managed to get a lot right.

Access Copyright and its allies, such as the ACP, are peddling what amount to Trumpian fictions and falsehoods about fair dealing in Canada. AC’s income has dropped in the last decade but NOT because of the addition of the word “education” to the fair dealing provision of the Act in 2012.

AC’s income has dropped because AC tariffs as certified by the Copyright Board are NOT MANDATORY – which Prof. Katz and I have been saying for a decade, as many institutions came to believe, and which the SCC has now TWICE confirmed. See also Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0> brought to you by Prof. Katz, Prof. David Lametti as he then was, and yours truly.

The word “education” was added to the Act in 2012 after the Copyright Board and the Federal Court of Appeal held, erroneously, that teaching and instruction were categorically outside the ambit of s 29 and while an appeal of these decision was pending before the Supreme Court. But when the SCC decided the 2012 Alberta case, without regard to the 2012 amendment, it corrected the error and affirmed that “education” has been part of fair dealing even before the amendment, dating back to the fair dealing provision as enacted in the UK act of 1911 and the Canadian act of 1921. There is no court case yet that confirms that the addition of the word “education” has expanded the ambit of research and private study. Copyright nerds may be interested in the factum, which proved to be very influential, that Prof. Katz and I filed for the 2012 Alberta case in this respect. 

That said, even if, assuming (incorrectly), that the list of allowable purposes was meant to be closed, it is arguable that adding “education” may potentially add something that didn’t exist before.

 While “education” is potentially capable of covering things that research and private study may not cover, this doesn’t change the fact that, as far as teaching practices at schools, colleges and universities are concerned, these educational institutions can rely  and apparently are relying on the holding in the Alberta case without reliance on the fact that Parliament did indeed add the “education” in 2012.  Once again, and for emphasis, the addition of the word “education” to the Act in 2012 is NOT the reason why AC’s revenues have gone down.

 According to Universities Canada, Canadian universities “have spent over $1 B in the last three years combined on purchasing library content – and it’s increasing annually”. And that’s not counting colleges and K-12 schools. These massive and increasing expenditures – more and more through electronic purchases and licenses – better ensure that creators and publishers get paid without having to depend on AC and its very inefficient distribution system, especially for individual creators. BTW, I’m a “fly on the wall” member of AC and probably more prolifically published than average. Last year, AC send me something like $82.00, which is more than some widely published academics. But that’s hardly enough to make me quit my day job.

AC’s most recent 2021 audited annual report describes the decline in revenues from the educational sector over the last decade and acknowledges the court cases, along with significant potential contingent liability for substantial refunds and the litigation seeking refunds.

The federal Government has arguably unnecessarily been paying many millions of dollars to AC since the 1980’s and still may be doing so to a significant extent. It is hard to see how AC has much repertoire of any possible interest to federal civil servants and what the Feds may do with that material is very likely fair dealing in any event. Is this more of a sweetheart deal than a rational arrangement? This is something that requires further analysis and exposure. These payments may have helped to keep AC on life support.

What Lies Ahead?

Currently, one hears that the Government’s agenda is roughly as follows.

The Government is looking to develop a legislative package for the spring of 2023 that could deal with some of all of the following issues:

• Small radio station liability
• Indigenous concerns
• Crown copyright
• “Educational copying” including:
• Fair dealing
• Should tariffs be “Mandatory”?
• Licensing
• Statutory damages

Since there have been consultations for years, there may not be much if any further formal consultations – though that won’t stop the lobbying which will then become even less transparent.

 The Government has already decided to legislate a resale right for artists.  This decision is interesting, given that the US Congress has taken a pass on this following an exhaustive 2013 study by the US Copyright Office that raised concerns about the potential impact on the American art market While some Indigenous artists may see promise in such a measure, there are existing mechanisms in place that may be even more effective for most living and less than famous artists – such as the long-standing certification mark provisions under the Trademarks Act, which are probably being under-utilized in this context.  Also, Canadian art dealers will surely oppose such a measure – since there is a concern that it would harm the art market and drive sales and resales underground or out of the country. This issue is far from straightforward and not likely to be a slam-dunk success for the Government.

 The Government needs to get over the notion and the unfortunate provision in s. 92 of the Act that copyright law needs to be reviewed every five years. Such a perspective benefits only consultants, lobbyists and lawyers. This has never been the approach in the UK, USA or Canada – where decades have passed before major changes are made. As always, the fundamental things apply as time goes by. New shiny objects don’t necessarily need new shiny laws. For example, the American and Canadian governments were very wise to resist that notorious and nonsensical attack on the VCR by the late Jack Valenti on behalf of the American film industry in 1982 where he told a congressional committee “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” Indeed the VCR ended up being Hollywood’s salvation. But Valenti’s hysterical hyperbole set the stage for cacophonous copyright confrontation for decades to follow, including from the motion picture industry in Canada, and indeed up the present time.

If the Act is to be re-opened at this time – which on balance is neither necessary nor desirable – amendments should include the following that are simple and long overdue:

• Clarify that circumventing a TPM for fair dealing purposes and other exceptions is legal;
• Clarify that the list of fair dealing purposes in s. 29 is not exhaustive by including the two simple words “such as” – as we have seen in the USA since 1976; 
• Making term extension to life + 70 years conditional upon registration according to regulations to be determined; and,
• Ensure that fair dealing rights and other statutory exceptions cannot be pre-empted by contract.

 A final thought and call to action. While there is lots of disaggregated data about the vast sums of money being spent in the educational sector for print and digital material, it would be very helpful if the post-secondary university sector, at least, would provide global data for the last decade on such things as:

• Amounts spent directly by students on traditional printed books and e-books;
• Amounts spent by institutions on printed books, e-book purchases and e-book licences;
• Amounts spent by institutions on site licences;
• Amounts spent by institutions on transactional licences; and,
• Amounts spent by institutions on OER development.

 As always, comments and copyright gossip always welcome on or offline.

 HPK