Saturday, May 26, 2018

Harmonizing Tariff Regimes and Statutory Minimum Damages: A Wolf in Sheep’s Clothing?


(Wikemedia)

There is a very pernicious proposal afoot which some federal bureaucrats have been led to believe will help to fix things up at the Copyright Board by harmonizing tariff regimes, or at least the statutory minimum damages provisions available to collectives.

I have not seen the documents provided to the Government or the Government’s own internal documents. However, it seems apparent that this effort is being pushed by Access Copyright and is at best disingenuous and at worst deceptive, misleading and dangerous. Above all, it seems clear that this proposal, despite its ostensible purpose, has nothing whatsoever to do with fixing the Copyright Board – and would make things even worse in that respect, as I explain below.  Indeed, it would appear that there is a very different and ulterior motive behind this proposal.

There are provisions in the current Copyright Act that allow SOCAN to go after statutory minimum damages of three to ten times the tariff amount. So, if a recalcitrant bar or restaurant doesn’t want to pay $150 per year in applicable royalties, it can be threatened with up to $1,500.  A reasonable settlement will usually be reached. Not a big deal.  SOCAN tariffs are “de facto”, even if not “de jure”, mandatory – if the bar or restaurant wants to play contemporary popular music. If that’s what it takes to encourage bars and restaurants to pay for music, then so be it.

Now, however, Access Copyright is trying to convince – some might say to “con” – the government into making the same kind of 3 to 10 times regime applicable to educational institutions. The regime that applies to Access Copyright is not remotely comparable to the SOCAN regime. Access Copyright has comparatively little repertoire and offers comparatively very little in value to educational institutions, which is why so few are voluntarily signing licenses with Access Copyright anymore. Michael Geist has recently been documenting how institutions are spending a great amount of money to clear their copyright requirements – but they are spending it in other more productive and efficient ways than on Access Copyright. There is no reason for any institution to pay more than once for any required permission. The notion that a big university can be intimidated with a potential liability of 3 to 10 times the total amount of a tariff that didn’t’ need to be paid in the first place and resulting in a threatened liability of many millions of dollars is nothing short of offensive and scandalous.

This amendment would seem to be intended to intimidate educational institutions into believing – or maybe even to legislate in such a way –  that just one unauthorized copy of one single work in Access Copyright’s rather limited repertoire could result in liability of three to ten times the amount of a tariff, notwithstanding that the Supreme Court of Canada has ruled in CBC v. SODRAC that such tariffs are NOT mandatory for users.  (The Federal Court did not read the Supreme Court’s decision that way in the Access Copyright v. York University case, but the Federal Court’s decision is under appeal.) Access Copyright wants $26 per FTE student per year. In a bigger university, there are well over 50,000 students. That’s more than $1,300,000 per year and the Copyright Board makes everything retroactive by several years because it is very likely the slowest tribunal in Canada and perhaps anywhere else. The Copyright Board is still cogitating Access Copyright’s 2010 tariff proposal for post-secondary – that’s 8 years and counting with no endpoint in sight. That’s unheard of in Canadian tribunals or courts.

This is nothing short of an end run around the appeal process in the Access Copyright v. York University  litigation, which many believe that Access Copyright will likely lose in the Federal Court of Appeal – and/or ultimately in the Supreme Court of Canada. That prospect may be behind this initiative, which is dressed up to look like Copyright Board reform. In turn, it’s  also an end run around the Supreme Court of Canada’s 2015 conclusion in CBC v. SODRAC, which held that “the statutory licensing scheme does not contemplate that licences fixed by the Board pursuant to s. 70.2 should have a mandatory binding effect against users”, a fundamentally important ruling that arguably should have brought a quick end to the York University litigation. (Yes – I’ve been involved in both these cases).

It’s also a shocking end run around the whole s. 92 Copyright Review process. This would be a monumental legislative change by stealth to a system that has evolved with great care and deliberation over a period of 80 years.

Above all, it has nothing whatsoever to do with fixing the Copyright Board. Virtually all of what needs to be done to fix the Copyright Board in the medium term can and should be done by regulations pursuant to the existing legislation. Bureaucrats who believe otherwise are, with respect, simply wrong. See my submissions to the Senate and to the Government.

Indeed, this proposal would only make things worse at the Copyright Board because lots of parties would feel obliged to mount strong and expensive objections if there is any serious concern about possible liability for multiple times the cost of a so-called “mandatory” tariff – and the possible retroactive imposition of such a tariff.

It’s very disappointing that this proposal is being given ANY consideration. It should have been screened out before it took up anybody’s time. If it does see the light of day in a bill, there will be a massive and messy opposition to it from many of the millions of people involved in the educational community.

Ill conceived copyright policy and especially legislation can be toxic to politicians, as Sheila Copps, Sarmite Bulte, the late Jim Prentice, and others have learned to their considerable chagrin. Unfortunately, today’s Ministers are apparently getting some very bad advice on this issue from some of their bureaucrats.

These are my own personal opinions and not necessarily those of any client – but I know that they are shared by other knowledgeable people.

HPK

Monday, May 07, 2018

The Government’s Review of the Copyright Act and the Copyright Board – What’s at Stake? ALSO Presentation May 5 2018


I had the pleasure of speaking at the conclusion of the above event by a worthy origination - Artists’ Legal Services Ottawa (ALSO) - while the audience listened politely and was contemplating the outdoor patio reception across the street on one of the first nice days of spring.

It was good to see some old colleagues and meet some new ones.

I spoke about "The Government’s Review of the Copyright Act and the Copyright Board – What’s at Stake?"


HPK

Tuesday, May 01, 2018

CBC is Destroying its Archives in the Name of Preservation - Better Governance Needed


Image result for cbc
This press release below raises very serious issues about the governance of the CBC - not unlike recent issues involving the National Gallery and the inexplicably bad decision to "deaccession" Chagall's masterpiece Tour Eiffel painting. How can lame duck outgoing presidents - Hubert Lacroix of the CBC  and Marc Mayer of the National Gallery - be allowed to do so much damage? Where is the good governance? Independence is important - but so is the national heritage. We need to do better. The National Gallery train wreck was somehow averted.This one must be too.Tell @JustinTrudeau @MelanieJoly 

HPK



FRIENDLY GIANT FACES FIRING SQUAD!

TORONTO, ON.  April 30, 2018.   Thousands of episodes of home-grown CBC television shows that captured life in Canada are about to be systematically destroyed.

Gone in a flash will be childhood icons like The Friendly Giant and Mr. Dress-up, as well as episodes of Canadian television classic such as Wayne & Shuster, King of Kensington, Tommy Hunter and The Beachcombers. 

CBC has decided betacam versions of these and hundreds of other iconic Canadian TV shows are no longer relevant so a destruction order for 26,163 recordings will be carried out this week. These vintage recordings will be ground up into small pieces, then shipped for incineration to New York where the steam generated will feed energy into the state’s power grid.

This is a precursor to the mass digitization program CBC plans to launch this summer during which close to one million English-language original program ‘carriers’ will be destroyed after being transferred to the latest digital media formats. 

This controversial plan flies in the face of international archival protocols that, because of the instability and insecurity of present-day digital media (think how frequently we are warned of ‘hacking’ threats’) requires the preservation of original content.

“The CBC’s digitization plan will be underway for five years”, said Kealy Wilkinson, Executive Director of the Canadian Broadcast Museum Foundation.  “Until we can gauge the reliability of the outcome, it would be foolhardy to destroy early generation copies like betacam - or original programs. 

It is up to the CBC and the Department of Canadian Heritage to halt any destruction.
Doing less risks the extinction of Canada’s national audiovisual history.”

The Canadian Broadcast Museum Foundation (CBMF) is a not-for-profit charitable foundation working in the public interest to preserve and provide public access to Canada’s history, culture and broadcasting heritage.

Media contact: Kealy Wilkinson, Executive Director, Canadian Broadcast Museum Foundation, Email: cbmf0fmcr@gmail.com, Phone: 416-367-4772. 

Thursday, February 15, 2018

How a Polish Holocaust Story Became the Basis of a Controversial Copyright Case in Canada’s Federal Court



There has been a lot of news lately about Holocaust remembrance and a proposed Polish law that would criminalize references to “Polish death camps” and complicity of the Polish nation in atrocities carried out against the Jews during that period. As the Washington Post reports on February 2, 2018: “The law would essentially ban accusations that some Poles were complicit in the Nazi crimes committed on Polish soil, including in the Auschwitz-Birkenau extermination camp, where  more than 1.1 million people died. Germany operated six camps in Poland where Jews and others that the Nazis considered enemies were killed.”

Despite the extremely dark side of what happened in in Poland before and during the Holocaust, there are many stories about incredibly and extraordinarily brave Polish people who risked everything to save Jews from the Nazis and Nazi sympathizers in Poland.  Many of these heroes have been honoured as Righteous Among the Nations by the Israeli Holocaust memorial institution, Yad Vashem. One such particularly poignant story concerns Franciszka Halamajowa and her daughter Helena, two Polish-Catholic women who saved 15 Jews and a German defector. Eight of them were family members of Judy Maltz, who, together with Barbara Bird and Richie Sherman, made a wonderful documentary about this story. They were my clients in an unsuccessful copyright infringement lawsuit in the Federal Court of Canada alleging copyright and moral rights infringement of their documentary.

I get asked a lot about the controversial case of Maltz v. Witterick and Penguin, 2016 FC 524 (CanLII), http://canlii.ca/t/gr8mf. I’ve been asked to speak about it at a law school. After this judgment of the Honourable Mr. Justice Keith M. Boswell of the Federal Court, which was devastating to my clients, and the substantial costs award against them of $39,200, they decided not to pursue an appeal – though I did serve and file a Notice of Appeal (see below), which outlines in some detail what would have been argued on appeal. For the reasons discussed below, the appeal was subsequently discontinued.
In response to this ruling, my clients decided to make their documentary freely available online and indicate their rationale for doing so on Ms. Maltz’s Facebook page, which provides a link to the free video. The DVD can also be purchased online via Amazon, if you want a higher quality version. Here’s the official website for the film.

In a nutshell, my clients created an acclaimed film documentary in 2009 about a very brave Polish woman, Francisca Halamajowa, who at enormous risk hid and cared for three Jewish families and a defecting German solider in the pig sty, attic, and a hole dug under the kitchen of her tiny little house in the village of Sokal during WWII. A Toronto investment fund manager named Jennifer Witterick saw the film at a screening in Toronto in 2012 and then wrote a book called “My Mother’s Secret”, which was self-published in early 2013. It was subsequently published by Penguin in several languages and several countries.  The book was described by the author as a work of fiction. However, it appeared for a long time on the Globe and Mail’s non-fiction bestseller list. My clients alleged that Witterick’s book infringed their copyright and moral rights.  I will not comment on the case or the decision any further at this time. I may do so one day in greater detail. Meanwhile, interested readers may wish to refer to documents provided below.

The Notice of Appeal spells out in considerable detail why my clients believe that the case was wrongly decided. Nonetheless, my clients chose not to pursue the appeal, already having incurred the  significant costs award for their loss in the Federal Court. Unlike Ms. Witterick, my clients are not wealthy. Penguin obviously has huge resources.  After their experience in the Federal Court, my clients did not wish to risk further losses in terms of costs payable to the other side in the event that the appeal might not have succeeded. Because much of the trial judgment would likely have been argued to be in the nature of fact finding, there was a real risk that an appeal might have failed based upon the usual great reluctance of the Federal Court of Appeal to second-guess the trial judge on findings of fact.

In the meantime, it may be useful to those who are interested in the case, including copyright law professors and their students, to have convenient access to the following documents which have filed with the Federal Court and Federal Court of Appeal and are on the public record:


Amended Notice of Application dated September 23, 2014 which includes in detailed chart form the 30 instances of what was alleged to be verbatim or nearly verbatim copying. Note that this was an “application”, in contrast to an “action”, and there was, accordingly, no document such as a statement of defence responding to it directly.



The above, of course, is by no means the entire record, which includes many volumes of affidavits, transcripts of cross-examination, expert affidavits and cross-examinations, and countless exhibits which are referenced in the memoranda.  However, these documents provide further information for those interested in this case.

HPK




Wednesday, November 08, 2017

Maybe the Canadian Copyright Bar and the Copyright Board Should Try Some PMNOC Remedies Instead of Rearranging the Deck Chairs?



(deck chairs you know where awaiting rearrangement...)

On November 3, 2017, I spoke at the University of Toronto Sixth Annual Patent Law Conference, on the “promise” issue and its treatment in parallel proceedings with very interesting timelines by a NAFTA ISDS tribunal and Supreme Court of Canada. I shall have a lot more to say about that later in a separate posting.

The conference opened with the panel discussion chaired by Chief Justice Crampton of the Federal Court about how the Court would deal with the new regime that will eliminate the troubled two track PMNOC applications and litigation proceedings regime that has existed for many years in the federal court. Even under the old system, the Court was required by law to deal with the “NOC Applications” (where in rem validity and infringement were not determined) within 24 months from start to finish including the judgment. Under the new system, as required by CETA, the proceedings will be in the form of an action with discoveries and live witnesses (in contrast to an application in which there was no oral evidence) and will also deal with in rem validity and infringement determinations. All of this must be dealt with within 24 months from beginning to end, which will include a hearing of normally two weeks maximum to take place at least three months before the end of the two-year period so as to allow the judge time to write a judgment. Here is how the Court has spelled out how this will be done. Based on the Court’s admirably transparent and useful statistics for the last several years, it is safe to assume that there will be dozens of such proceedings per year for the foreseeable future. There are about 40 active judges on the Federal Court. However, many are “supernumerary” which means that they usually carry about half of a normal case load – which can still be considerable. They each have only one clerk. There is no in-house research facility. The vast case load of the Federal Court ranges from admiralty to extradition to land claims to environmental issues and much more in terms of jurisdiction, including countless immigration files which are obviously extremely important to the individuals involved. Many cases are immensely complex both legally and factually and can involve enormous amounts of money and huge public policy issues. Most Federal Court judges manage to issue an important judgment every month and judgments are expected normally within six months after a hearing, which normally takes place within one to two years at most after the proceeding is commenced. Many proceedings are very competently and often aggressively “managed” (i.e. moved along) by Case Management judges (who are sometimes Prothonotaries with more limited powers than Judges). 

This should serve as a much-needed reality check on what is happening, or more accurately not happening, at the Copyright Board. The Copyright Board rarely holds more than two or three contested hearings a year and rarely issues more than five actual “tariffs” per year. Very few of the matters coming before the Copyright Board are ever nearly as complex factually or legally as these pharmaceutical patent cases, which also usually involve very large amounts of money.

And yet, everyone knows that for contested matters the Board typically takes more than four years even to get to a hearing and more than three years thereafter to render a decision that is almost invariably and often successfully challenged in the Federal Court of Appeal and, six times in the last five years or so, taken to the Supreme Court of Canada. These decisions are invariably retroactive for several years causing great doubt and uncertainty for all concerned, and often unexpected windfalls or liabilities as the case may be. Even the uncontested matters move at barely more than a glacial pace.

If the Federal Court, which has a very broad mandate and enormous caseload based on a vast range of subject matter, can deal with dozens of pharmaceutical patent cases each year and dispose of actions including discoveries and two-week trials from beginning to end including judgment in 24 months or less, surely it is not too much to expect similar performance results from the supposedly expert and specialized Copyright Board with its tiny fraction of the Federal Court’s caseload. However, it is clear that the only way that this will happen is with specifically mandated legally imposed deadlines as we are now seeing in the Federal Court and have seen elsewhere. All the talk about increased resources for the Copyright Board, which is not only unnecessary but potentially even very counterproductive, and the rearranging of specifics, such as they are, of the procedural steps in the Board’s Model Directive on Procedure, and other suggested tinkering, will be of no effect in the absence of legislation and/or regulations that set forth the basic procedural steps and deadlines for meeting them. Many of the submissions in the recent consultation effort involving suggestions for fixing the Copyright appear to be pulling their punches, or not even punching at all or in the right direction.

The Federal Court, the PMNOC bar and ISED are to be congratulated for dealing decisively with a very urgent, vast and complex situation that is, by any measure, much more difficult than that facing the Copyright Board.  The Copyright bar and the Copyright Board have much to learn from this example and, if they ignore it or fail to learn from it, may do so at their considerable peril. The Minister of ISED may wish to consider a process to encourage - and if necessary require - such learning and instruction.

Note that the Board has recently issued an astonishing number of notices directed toward holding hearings involving countless parties and consolidating several proposed tariffs no later than May and June of 2018 in an apparent effort to accelerate the imperceptibly glacial pace of its previous proceeding. This is notwithstanding the onslaught of judicial review resulting from the Board’s extremely belated and very likely incorrect ruling on the so-called “making available” right and the tariff itself more than 39 months after the retirement of Chairman William Vancise who presided over that already long delayed matter. Here are the key notices:

06/10/2017
Notice
Online Music Services (SOCAN: 2014-2018; Re:Sound: 2013-2018; CSI: 2014-2018; CMRRA: 2014-2018; SODRAC: 2014-2018; Artisti: 2016-2018)
06/10/2017
Notice
Internet - Audiovisual Content and User Generated Content (SOCAN: 2014-2018; CMRRA: 2016-2018; SODRAC: 2015-2018)

The first matter is very intertwined with the “making available” morass, which could have and should have been resolved many years ago by means of a simple reference to the Federal Court of Appeal. Instead, the Board allowed what should have been at the most a simple legal question to turn into an immensely complicated and unnecessary battle of international experts and then, in turn, failed to decide the legal issue quickly and separately from the rate determination. The result is five judicial review applications that cannot foreseeably be determined in time to avoid a potential train wreck of a hearing next June or, at the least, immense wasted expense on interrogatories and experts. If the Board follows through on this schedule that will result in a June 2018 hearing before the FCA has ruled (and potential SCC involvement), the resulting potential for chaos is painful to contemplate. If the parties object to this sudden rush, the Board may suggest that it is the parties to blame for the slowness of proceedings. On the other hand, parties may have their own reasons at this time for being deferential to the Board on this file. There is plenty of blame to attribute all around for the present state of affairs – and at this point, undue haste may create even more waste.

On both of the above files, there are a great many other notices that follow, which can be found here.

The Board’s apparently sudden and  frenetic activity -  especially in the face of active judicial review that could render much of this to be a waste of considerable time and resources - is doubtless going to be perceived as being a reaction to the Senate and the Government’s concern and  consultation effort concerning the Board and the S. 92 review about to begin. Whether or not the Board can get to these hearings by May and June of 2018 - or whether the many parties so accustomed to slower and more leisurely proceedings let this happen – remains to be seen. Whether the consequences of this new infusion of administrative adrenalin with lead to clarity or chaos also remains to be seen.

The obvious solution to the overall problems at the Board that can no longer be ignored is that the Government should ensure through regulations and, if necessary, legislation, that:
  • Timelines are set, as in the case of PMNOC matters, that result in tariffs being determined with reasons within a finite time. If 24 months works for pharmaceutical patents, it should also work for Copyright Board tariffs with no exceptions.
  • Copyright Board tariffs should never be retroactive – or at most only minimally so to the necessary extent, consistent with Supreme Court of Canada jurisprudence going back to 1954. See Maple Leaf Broadcasting v. Composers, Authors and Publishers Association of Canada Ltd. [1954] SCR 624 at p. 631. See also Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57 (CanLII) at paras 109-111 where I, along with Prof. Ariel Katz and Prof. David Lametti, as he then was, succeeded in getting retroactivity on to the Supreme Court’s radar screen in the modern era.

Longer term solutions, such as a change of “machinery” that might create a new tribunal perhaps merged with the Competition Tribunal, should also be considered, as I have already suggested to the Senate and in the current consultation.


HPK

Friday, October 27, 2017

Submissions Posted on Canada's Copyright Board - the Consultation Process

http://lotta56sparks.ca/56-sparks-canadas-most-famous-address/

The papers submitted re consultations re the Copyright Board have just been published here.

There’s lots to say. But I would first note that Music Canada – the leading lobby group for the Canadian music industry – has highlighted the mandatory tariff issue and mentioned the York University case by name, along with “the K-12 and post-secondary markets”:

Music Canada also notes a concerning development whereby users are taking the position that they have the right to elect whether they want to be bound by certified tariffs set by the Board, even when they make uses of works covered by tariffs.17 This has the potential to undermine participation in the tariff process and makes enforcement of tariffs more difficult. Music Canada does not agree that users have the right to election to opt out of approved tariffs (or interim or continuation tariffs) certified under the section 67 or 70.1 tariff process. However, clarity in this regard would usefully put an end to this process which undermines the Board’s legitimacy and process.

See page 13 of the Music Canada submission along with the footnote on that page.

This underscores the importance of Prof. Katz’s comments in his recent blog about the York University decision, which should be read again  by all those contemplating an intervention in the appeal. 

My own submission about the Board, which is NOT 233 pages long but rather only a modest 36 pages in length is here. Many of the links in it aren’t working and got lost on their way to the Government website. I’ll try to post a version with working links when I get a chance.


HPK

Thursday, October 12, 2017

Copibec Class action against Université Laval - Update and Opt-out information - Deadline is October 16, 2017

Image result for laval university logo
For interested readers, here is Copibec’s website with information about its controversial class action against Universit√© Laval in the Quebec Superior Court: https://www.copibec.ca/en/class-action-against-universite-laval


The deadline for opting out is Monday, October 16, 2017.

Here is some backbground on this case from my blog of February 14, 2017.

HPK