Copyright Takedown Gives Conservative Party Pretext to Remove Clumsy Political Attack Ad

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Good political attack ads make voters angry with–or mock–the politician in the ad, reminding voters how much they dislike the targeted individual or party they represent. Poor political ads expose the sponsor of the ad to ridicule and remind voters why they should question the competence of the Party that created it. The Conservative Party of Canada (CPC), Canada’s official opposition party, is batting ten for ten in the latter category with its latest laughably amateur attack ad against Prime Minister Justin Trudeau recently posted on Twitter. The ad clumsily pasted Trudeau’s face on to the body of (then) 12 year old Julie Dawn Cole, the young actress who played the spoiled brat Veruca Salt in the 1971 children’s epic Willy Wonka and the Chocolate Factory, singing the song “I Want It Now”. (Just for fun, here’s a link to the original; it’s not the 2005 Tim Burton/Johnny Depp version). Instead of throwing a tantrum for more candy, in the CPC ad Trudeau wants an election.

The ad was posted just before Trudeau went to see Governor-General Mary Simon on August 14 to request that Parliament be dissolved, and a general election be held on September 20. As per standard constitutional convention, the PM’s request was promptly granted. Meanwhile, the ad circulating on Twitter was widely ridiculed, including by a number of senior Conservatives. One Conservative Member of Parliament is reported to have said, “I trust the decision-maker who decided to post this tasteless and appalling video will brought up to speed”.

Fortunately for the CPC, copyright came to their rescue in the form of a DMCA takedown notice to Twitter from the rights-holder, who appears to be Warner Media. The film was released by Paramount in 1971 but re-released in DVD and Blu-Ray formats by Warner Home Video a few years ago. Given the free publicity the Conservative ad generated, it might have served Warner’s interests to have left it up a bit longer, but entertainment industry lawyers are, understandably, an unforgiving lot when it comes to copyright infringements. Once Twitter responded to the notice and took it down, the Conservative Party no doubt heaved a big sigh of relief.

They could have pushed back of course, and filed a counter-notice in the US, citing fair use on the basis of satire. Parody and satire are both possible grounds for a fair use defence in the US, although fair use through satire is considerably more difficult to establish than a parody defence, which has already been tested in the courts. (The difference between the two is explained here). Even though parody can be an acceptable fair use, there is still a high bar, as was demonstrated in the Dr. Seuss “Oh, The Places You will Boldly Go” parody case last year. This was a mash up of Dr. Seuss’ “Oh, the Places You Will Go” and Star Trek. It was clever, but it wasn’t parody. On appeal, the Ninth Circuit Court of Appeals overturned a lower court ruling that had found the work to be a fair use parody. The Appeal Court ruled that unless the “parody” is poking fun at the original copyrighted work, it is not a fair use.

Satire (along with parody) is a specified fair dealing exception in Canada, added during the revisions to the Copyright Act in 2012, but just because a use falls within a fair dealing exception does not mean that the dealing is necessarily fair, since a number of other factors also have to be considered. The CPC video was certainly not a parody of the Willy Wonka film; rather, it was an attempted satire of Trudeau and his political objectives, ineffective though it was. But parody or satire, the CPC is not going to prolong the pain by fighting the takedown order. In fact, it quickly removed its Tweet once Twitter blocked the video.

This is not the first time the Conservative Party has run into legal issues with copyrighted material used in producing political attack ads. In the last election in 2019 they helped themselves to clips of interviews featuring Trudeau drawn from copyrighted broadcast content, without authorization, to produce ads showing him in a bad light. Although it was not the only broadcaster to have its material so used, only the state-owned CBC objected. Even though the Conservatives took down the content in question, the CBC sued in order to clarify the legal issues, claiming the Conservatives’ use of the network’s material undermined its political neutrality. The issues were indeed clarified, but not the way the CBC expected. As I outlined in a recent blog posting on the court decision Using Copyrighted Broadcast Content without Authorization to Produce Political Attack Ads: “All’s Fair” Rules the Federal Court in Canada”, the Court found the Conservative Party’s use to be a fair dealing on the basis of the “criticism” exception.

It is clear that attack ads are part of the panoply of campaign measures near and dear to the heart of the Conservative Party. In my blog on the CBC lawsuit against the Party, I noted that in back in 2014 when they still formed the government, the Conservatives tried to slip through legislation in an omnibus bill that would have allowed political parties to use copyrighted materials without authorization in the course of an election campaign. They subsequently withdrew that amendment but the recent Federal Court finding in favour of the Party against the CBC has removed the need for such legislation. While they are now free to craft political ads drawing on material from broadcasters—and possibly other sources such as films—the creation of attack ads has to be done carefully to avoid backfires and backlash. The poorly thought out and badly executed Willy Wonka video is a good illustration of the need for some adult supervision over the creative efforts of digitally savvy (but perhaps not very politically astute) twenty-somethings who no doubt had beavered away in the dark recesses of some CPC office to create what they thought would be a good put-down of Justin Trudeau. But social media is an unforgiving task master if you get it wrong.

In this case, copyright rode to the rescue. In future, if the Conservatives shoot themselves in the foot with clumsy ads that backfire, they probably won’t have that fig leaf to hide behind. There is a lesson here for all the political parties. Think hard before you hit the “send” button to put up a post on social media.

© Hugh Stephens, 2021. All Rights Reserved.

As an update I would note that the day I posted this blog, the Liberals got into their own hot water over a Tweet in which they selectively quoted Conservative leader Erin O’Toole on private health care. Twitter marked it as “manipulated media”. No copyright angle here but the message about being careful about using social media applies to all parties.

Surprise! Canadians Like to Pirate NHL Games–But Dynamic Site Blocking Orders May Soon Put a Stop to the Free Rides

Following the dismissal in May of the appeal against Canada’s first site blocking order (the GoldTV case) by the Federal Court, much to the chagrin of the one lone ISP (TekSavvy) that opposed the court’s order, Bell Media, Rogers Communications and other broadcasters have applied for a dynamic site blocking order to protect their broadcast rights for National Hockey League (NHL) games in Canada. What could be more Canadian than the pirating of hockey broadcasts, eh? It’s like Spaniards pirating broadcasts of bull fights. In neither case is it justified but it reflects how “pirate priorities” reflect the national psyche.      

The “dynamic injunction” requested is not targeted at a specific site or streaming service. Instead, its goal is to block the unauthorized broadcast of NHL games, no matter the source. This is similar to injunctions issued in the UK to block infringing streaming of English Premier League (soccer) games. Because of the dynamic nature of piracy where the pirates duck and weave to avoid detection by shifting IP addresses regularly, sometimes even during a game, the response also has to be dynamic. The injunctions, if granted, will require Canadian ISPs to block a list of IP addresses being updated in real time.

The story of the fight for the broadcast rights for ice hockey in Canada goes back a few years. Back in 2014 Rogers shook up the world of sports broadcasting by offering $5.2 billion to win TV broadcast rights for NHL hockey in Canada for a twelve year period, 2014-2026, taking the franchise away from the government broadcaster CBC which had held the television rights for 55 years, and the radio rights for many years before that. “Hockey Night in Canada” (Saturday night) is the country’s most popular TV broadcast with at times up to 18 million viewers, half the national population.

To say that Canadians like hockey is like saying that bears like honey (or Russians like vodka). Hockey is engrained in the national psyche and has become a defining national characteristic, like poutine and the Tim Horton’s “double double”; aka double cream; double sugar. (These two delicacies make me wonder how Canada has been able to achieve life expectancy rates of 80 years for men and 84 for women). The comparable rates in the US are 76 and 81 years.

In Canada, it is irrelevant whether you are a hockey fan or not as you will still need to respond to the inevitable question, “Whadjya think of the game last night?” The correct response is not “what game?” but “yeah, close eh?” (hoping it was, in fact, close) or maybe “yeah, that was quite a fight” (knowing there is always a fight). You have to participate in the national conversation whether or not you know or care who was playing whom. Although most Canadians live in large cities, the national myth still exists of kids skating on outdoor rinks in minus 30 degree (Celsius) weather in northern Saskatchewan or Quebec. Author Roch Carrier’s famous story of “The Hockey Sweater” about a young boy in Quebec whose hero is Maurice “Rocket” Richard of the Montreal Canadiens, and who is shunned by his playmates because his mother inadvertently orders the wrong hockey jersey from the Eaton’s catalogue (yes, he was sent a detested blue jersey from the Toronto Maple Leafs), captures the depth of feeling about hockey in Canada. Mind you, that was all back in the day when there were just six teams, of which two were in Canada. Now the NHL has 31 teams, soon to be 32, with seven teams in Canada. It used to be so simple when it was just the Maple Leafs (English Canada) versus the Canadiens (French Canada), and teams from Florida didn’t win the Stanley Cup.

All this hockey action (each NHL team normally plays 82 games) generates a lot of viewing time, all of which is expensive for broadcasters (and advertisers). Since acquiring the NHL rights for Canada (at twice what NBC paid for the US rights), Rogers has licensed broadcasting and streaming rights to other broadcasters, including Groupe TVA in Quebec, Bell Media and even the CBC, in order to recoup some of its investment. It also broadcasts the games on its own Sportsnet cable channel. Given the role that it plays in Canada’s image of itself, ice hockey is the “killer app” for broadcasters, the content that you have to have in order to sell advertising. The fact that so much money has been laid out for the rights (and for licensing fees for those getting the content from Rogers) helps explain the determination of the rights-holders to plug the holes in the system caused by piracy. The request for the blocking order cites losses of between 583,000 and 974,000 subscribers, according to Torrent Freak.

Those opposed to any form of site blocking such as Teksavvy, the self-appointed defender of “internet freedoms” among the ISPs, along with groups such as the Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa, who seem unable to differentiate court-ordered, targeted site blocking of pirate sites from “internet censorship”, will continue to push back. Teksavvy opposed Canada’s initial site blocking order granted by the Federal Court (GoldTV), then appealed the court’s decision after the order was granted and is now criticizing that decision as opening the “floodgates” to site blocking injunctions.

I guess you could say that from one perspective, they are correct. From one blocking order we now have two, a 100 percent increase. If further orders are granted that impressive percentage increase will drop. In fact, if the blocking orders succeed in curbing piracy there may be less need to seek them. And if there are a few more, it will be because they are needed to protect the rights of those who invest in content and who, by extension, bring that content to consumers. It may be that eventually the issue of site blocking in Canada will become one more routine measure against piracy, as it is in Australia, where it has proven to be very effective in interrupting access to pirate feeds and thus encouraging viewers to get their content legitimately.

Whatever happens, hockey is not likely to lose its place as the king of content in Canada. The quality of the game is dependent on an entire eco-system, from training and recruitment of junior players through the progressive steps to becoming an NHL player, to maintaining the operation of the league itself. That eco-system has to be funded. And where do the funds come from? Consumers of course, in the form of ticket prices (already exorbitant) and broadcasters, funded by advertisers. The pirating of content undermines this eco-system on which hockey fans depend, so in the end, avoiding payment for access to the game is self-defeating. As I have commented elsewhere, sports fans are only cheating themselves when they stream pirated content. In some countries, a share of broadcast revenues go directly to sports clubs that develop young talent, so starving the development process is like eating your own seed grain.

Today, more than 40 countries have some form of piracy site blocking and the more this measure is used, the less controversial it will become. The EU is also looking at measures to speed up the take down process for sports events. Canadian courts have recognized site blocking as a proportional measure to protect copyrighted content—even when that content involves putting the puck into the net.

© Hugh Stephens, 2021. All Rights Reserved.

Singapore’s Copyright Act Revisions: A Step in the Right Direction, But….

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Singapore’s long awaited and long debated revisions to its copyright law were tabled in Parliament at the beginning of July with a view to enactment by the end of summer. This follows a two-month public consultation by the Law Ministry and Intellectual Property Office. The revisions have been in the works for some time, beginning with consultations in 2016 and 2017 culminating in the publication of the Copyright Review Report in 2019. What is the upshot? Will these revisions address the concerns of rights-holders? The answer is a qualified “yes, but”.

The fundamental objective is to update copyright law for the digital age, a challenge faced by many governments. The consultation that concluded in April was to finetune application of the proposals brought forth in the 2019 report, not to add to or subtract from them. One of the major changes is to update language in the legislation to use of “plain English”, to make the law more accessible. While laudable and understandable, the devil is always in the detail when it comes to translating well understood legal concepts into layman’s language. This can potentially lead to misunderstanding on the part of the public and potentially to further litigation, which could have been avoided. A good example is the introduction of the term “permitted use” to describe not only legal exceptions to copyright but other “permitted uses”. There is ample scope for confusion here. It is important for the public to understand that the copyright owner is not permitting the use; in fact in the case of a legal exception or a fair use, no permission is required. It would have been far better to be precise, noting that a fair use is a legal exception to a copyright holders’ monopoly right, not one that has been “permitted” as in the case of a licensed use. 

As stated in the preamble to the 2019 report, the intent of the revisions is to enhance creator’s rights by introducing a new right of attribution, change the default ownership of commissioned works in favour of the creator (although this can be modified by contract) and enact new enforcement measures to crack down on the sale of Illicit Streaming Devices (ISDs). These are devices that, when combined with related software, provide unauthorized access to streaming content. They are sold openly in Singapore and often advertised as providing access to “free content”. The revisions will also provide some additional exceptions to users, such as broadening the education exception for students and non-profit schools (but only for content freely available on the internet, allowing content providers to put content behind a paywall), exceptions for text and data mining, adjusting fair use criteria, and facilitating the works of the GLAM (galleries, libraries, archives, museums) sector, among other objectives. Some of these exceptions, if not applied carefully, could be problematic.

One of the most positive elements of the revisions for creative industries is the new provision that makes it illegal to sell set top boxes (aka Illicit Streaming Devices) and associated software applications that offer access to pirated content (movies, television shows, sports events), or to advertise that they provide access to such content. The infringing content is hosted on pirate sites outside Singapore and accessed by consumers in Singapore by purchasing ISDs openly sold in shopping malls and electronics markets. In most instances, ISDs themselves do not contain pirated content, as used to be the case with illicit DVDs, but they provide the means of access once configured to do so. Merchants will either offer a configured device or provide the purchaser with the means to access the infringing content, through software or a website. In some instances, purchasers even agree to pay for access to the content, mistakenly believing that this legalizes their conduct—while congratulating themselves on the terrific “deal” they just got. Pirate websites can easily afford to undercut legitimate content providers since they are stealing the product and then reselling it. It’s a great business model for the pirates.

I have written about the difficulty of dealing with sellers of ISDs in the past. (here, here and here). It is a problem in many countries. Unless the law is very precise, bad actors will try to deny culpability by proclaiming that they are “shocked, shocked” that their customers are using what amount to burglary tools to commit burglary. The new provisions in Singapore, although a long time in coming, should deal with this by targeting retailers who, although selling a “clean device”, facilitate the loading of the apps that provide access to pirated content or provide instructions on how to modify the device, or advertise that their devices provide access to unauthorized content. This should largely constrain the ability of those retailers who knowingly sell devices for the purpose of accessing pirated streaming content to escape legal consequences. The penalties will be significant and can be both civil and criminal, including jail time.

In an interesting initiative even prior to the new law coming into effect, StarHub, one of the main pay-TV providers in Singapore, is offering consumers who have purchased the boxes that are soon to be outlawed the opportunity to exchange them, at no initial cost, for a StarHub box. For turning in their pirate box, consumers will get two years of free rental of a StarHub box if they sign up for StarHub’s subscription service. Even though the new law is focused on retailers and not consumers, the StarHub initiative gives consumers who may have purchased an ISD hoping for “free” content an additional incentive to “go legit”. This is important because surveys have shown that watching pirated content is, unfortunately,  widespread in Singapore. With the new law targeting the sale of ISDs combined with numerous and growing legitimate content offerings particularly in the VOD space, hopefully Singaporeans will be as law-abiding regarding content consumption as they are in other areas of the law.

Another provision of potential concern is the tinkering that has been done with Singapore’s fair use provisions. Singapore instituted a hybridized fair dealing/fair use regime some fifteen years ago. Certain fair dealing exceptions, such as “criticism and review”, “research and study”, and “current affairs and news reporting” exist in Singapore’s copyright law combined with an open-ended fair use provision that, until now, has been subject to five “factors”, four of which align with US legal practice. In determining fair use, the Singaporean courts currently consider;

(a)     the purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes;

(b)     the nature of the work or performance;

(c)      the amount and substantiality of the portion used in relation to the whole work or performance; and

(d)     the effect of the use upon the potential market for, or value of, the work or performance.

(e)         the possibility of obtaining the creative work within a reasonable time at an ordinary commercial price

The fifth factor, which helped protect rights-holders against fair use claims exploiting the argument that unauthorized copies were justified because of the unavailability of certain content in Singapore, has now been dropped. The Ministry of Law argues that it is subsumed in the fourth factor, effect of the use on the potential market, etc, but this is not as explicit as the previous wording in providing guidance to the courts. However, the Ministry appears to have listened to input provided by stakeholders during the public consultation and the explanatory statement to the Bill now explicitly states that the removed fifth factor may “still be considered where relevant”. In addition, the existing fair dealing exceptions will now be made subject to the four fair use factors, which will provide some additional balance.

While the anti-piracy provisions in the soon-to-be-adopted law will help close a significant loophole that allowed retailers to openly advertise set top devices that provided access to pirated content, much will depend on court interpretations of the new revisions. Creators will be happy that a right of attribution has been enshrined as an additional moral right while photographers will be pleased that they will now enjoy default ownership of copyright in their works (as is the case in many other countries). The GLAMs will more easily be able to show AV performances or make copies for specific purposes. There will now be a specific exception for text and data mining in addition to the general fair use provisions, but the key here will be the possible impact on the commercial interests of copyright owners since the exception applies to both commercial and non-commercial use and goes further than similar provisions in, for example, Japan and the UK. In fact, Singapore’s text and data mining exception is arguably overly broad. A good analysis of the pros and cons of the various provisions is available on the website of this international law firm.

The old saying that “you can’t please all of the people all of the time” is certainly applicable to copyright law and is relevant here. The revisions bring in some long-overdue changes, particularly with respect to dealing with the open sale of devices providing access to pirated content. The hybrid fair dealing/fair use model, now to be unambiguously called “fair use” in Singapore, will lead to some legal uncertainties that will no doubt have to be worked through the courts. The flip side of the touted “flexibility” of a fair use system is the uncertainty that it generates as, theoretically, any unauthorized use can be argued to be “fair” and will need to be evaluated according to the established criteria and legal precedent, much of which does not exist in Singaporean jurisprudence. Other provisions are not particularly controversial and will help creators, especially the attribution right. Overall, the revisions are generally a step in the right direction—but there is always room for further improvement. The Bill will go for Second Reading in September so perhaps some of the shortcomings will be addressed as it moves through the legislative process.

© Hugh Stephens, 2021. All Rights Reserved.

Supreme Court of Canada Decision Undermines Canada’s Collective Licensing System: A Parliamentary Fix is Needed

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On July 30 the Supreme Court of Canada (SCC) delivered what can only be described as body blow to the management of collective rights in Canada, although the collective society at the centre of the action, Access Copyright, found some comfort, pointing out in its press release that the Court “refuses to legitimize uncompensated copying by the education sector”.  In its decision, the SCC not only dismissed the Access appeal against a ruling by the Federal Court of Appeal that “mandatory” copyright tariffs set by the Copyright Board of Canada are not mandatory with respect to users of content when that content is covered by the tariffs, but also editorialized on the lower court’s earlier ruling that York’s Guidelines (which York claimed allowed it to use material from Access Copyright’s repertoire without obtaining a licence or paying compensation) were not fair. Although the SCC refused to issue a Declaratory Statement legitimizing York’s Guidelines, its reasons for doing so were largely procedural. The Court declared that since payment of the tariff was not mandatory, there was no legal dispute between Access Copyright and York, and therefore it would be moot to take a position on the Guidelines. It then proceeded to cast doubt on the original decision against York, although recognizing that it was not retrying the case and that other factors not before the Court had to be considered.

The Guidelines will be tested when a suit is brought against York by a rights-holder (Access Copyright, although representing rights-holders with respect to collection of royalties, does not itself hold any rights in the works in its repertoire and therefore cannot bring an infringement case in its own name). When that takes place, the views of the SCC that the original finding of unfairness failed to take into account the user’s right of individual students will clearly be a factor in assessing culpability. Despite the unequivocal finding against York by the Federal Court in 2017 that their Guidelines had materially harmed the Canadian publishing market, the interpretive musings by the Supreme Court plus the need for individual rights-holders to establish infringement adds greater uncertainty to the process.  

As for the mandatory tariff issue, it is complicated as I explored in a blog post (When is a “Mandatory Copyright Tariff” mandatory only if you opt-in?) last summer. Back in the 1930s when “mandatory tariffs” first entered the legal vocabulary with respect to copyright, they were mandatory in the sense that Performing Rights Organizations were required to issue a licence (for use of sheet music, radio broadcasts etc.) to a user if the user offered to pay or paid the established licensing fee. In the late 1980s and 1990s substantial changes were made to Canada’s copyright legislation to address challenges emerging from photocopying and digital reproduction, and a number of collective societies (collective rights management organizations) were established to facilitate licensing of content and collection of royalties. It became standard practice for the Copyright Board to “certify a tariff” (i.e. approve a royalty fee) which would be applied to all users of a collective’s repertoire unless voluntary arrangements between users and the collective were agreed upon. The Federal Court of Appeal’s decision in June 2020 upended this long-established system, ruling that the legislative intent of the original 1930’s interpretation of the term “mandatory” had not changed. This has now been reaffirmed by the SCC.

In reaching its conclusion the Supreme Court carefully parsed the wording of the 1988 and 1997 legislation and concluded that the original intent of imposing constraints on the ability of collective societies to withhold licences had not changed. Moreover, it concluded that the role of the Copyright Board of Canada in certifying tariffs was to limit the amount that collective societies could charge, not to establish the amount that a user should pay (even though this is at variance with actual practice for the past twenty years). In declaring that it could not impute intent to Parliament where no wording existed (with regard to the question of what was “mandatory”), the SCC declared (at paragraph 76);

“It is of course open to Parliament to amend the Copyright Act if and when it sees fit to make collective infringement actions more readily available. But under the existing relevant legislation in this appeal, an approved tariff is not binding against a user who does not accept a licence.”

Legislative amendment seems to be the only alternative if the system for the collective management of rights is to be maintained in Canada. Whether and when Parliament will be prepared to take up this matter is another question, particularly given the strong opposition that can be expected from the post-secondary sector.

The alternative is litigation, perhaps a class action lawsuit against York, or at least a series of individual infringement cases funded by major publishers. One of the precepts of the collective management system introduced in the 1988 and 1997 reforms, however, was to avoid endless, costly litigation by facilitating collective licensing. Given this intent, a return to litigation seems like a retrograde step. Small publishers and individual authors will find it difficult to pursue such a remedy. If Access Copyright changed its business model and acquired the rights to works that it holds in its repertoire, it could bring a collective action against York, but whether this is a viable option is a question for members of Access Copyright to decide. Some collective societies, such as SOCAN for example—representing composers, songwriters and music publishers—do have certain rights assigned to them. However, even they intervened in this case since SOCAN’s tariffs that cover bars, restaurants, and clubs cover tens of thousands of small establishments across the country and without enforceable tariffs, licensing at scale becomes impractical and inefficient.

Although York’s Guidelines were found to be unfair in the original trial by the Federal Court in 2017, the SCC’s musings on that decision will make a finding of infringement less certain. The SCC noted that while the Declaration requested by York should not be granted:

this should not be construed as endorsing the reasoning of the Federal Court and Federal Court of Appeal on the fair dealing issue. There are some significant jurisprudential problems with those aspects of their judgments that warrant comment.”

According to the SCC the main problem with the analysis by the lower courts was that they approached the fairness analysis exclusively from the institutional perspective.

This error tainted their analysis of several fairness factors. By anchoring the analysis in the institutional nature of the copying and York’s purported commercial purpose, the nature of fair dealing as a user’s right was overlooked and the fairness assessment was over before it began.”

This will add complications for those bringing an infringement case, although there are a number of other factors to be considered in evaluating fair dealing that the SCC recognized were dealt with in the original trial and would need to be dealt with in any future litigation, such as amount of the dealing, nature of the work and the effect of the dealing on the market. It is far from certain that York would prevail in a future case. Far from creating clarity, it looks as if the result of the SCC’s decision–barring Parliamentary action on reinterpreting the meaning of mandatory tariffs–is more litigation, more uncertainty, and more waste of public funds as universities defend themselves against infringement actions that could have been avoided by the simple expedient of obtaining a licence.

Copyright minimalist Michael Geist at the University of Ottawa declared that the SCC’ decision was “a massive win for education and copyright”. It may represent a massive win for those educational institutions that seem determined to avoid paying a reasonable licensing fee for the content they provide to their students but it is hardly a win either for education or for copyright. Undermining copyright and payment of royalties for the use of copyrighted material will only result in less quality material being available to students. The quality of education will suffer in order to save payment of a few dollars per student to the copyright collective that represents the bulk of publishing and the vast majority of authors in Canada. The only winners in the end will be the legal profession in terms of legal fees. The solution is for Parliament to plug the holes in the legislation that the Supreme Court’s decision has exposed.

© Hugh Stephens 2021. All Rights Reserved.