Canada’s Pointless Pandemic Election and its Implications for Copyright, Content Industries and Digital Platforms

Credit: Elections Canada

For those of my readers outside Canada who may not have noticed, Canada has just held a general election. If many outside Canada were not following this election, many Canadians were also not focused on it. Voter turnout on election day, September 20, was just over 58 percent, close to an all-time low. The fact that the election was held in the middle of a surging fourth wave of the COVID pandemic was no doubt a factor. Another may have been the lack of any burning issues to get out the vote. In fact, Prime Minister Justin Trudeau was hard pressed to explain why he had triggered the election in the first place. The real reason, as everyone knew, was to try to convert a wave of good polling news into a majority government. Going into the election, Trudeau’s Liberal Party was 15 seats short of achieving a majority, (although on the last election day in 2019 it was just 13 seats short of the required 170, with 157 seats). Today it is 12 seats short of a majority, with 158, having gained all of one seat in the 2021 campaign over the total it achieved in the last election. The main opposition party, the Conservatives, lost 2 seats for a total of 119, and the two smaller parties that will hold the balance of power, the separatist Bloc Quebecois and the social democratic New Democrats had minor gains of 2 and 1 seat respectively. As a ploy to gain a majority, Trudeau’s election call was a massive miscalculation as his polling numbers dissipated during the campaign. By election day, the status quo was looking like a good outcome for the Liberals. Trudeau will now need to continue to govern with the support of at least one other party, depending on the issue of the day. The new-yet-old configuration of government in Ottawa will have implications for many stakeholders, including copyright interests and content industries, as well as those closely linked with content distribution such as the digital and high-tech industries.

When Justin Trudeau secured the Governor-General’s consent to dissolve Parliament and trigger the election back in mid-August, all legislation that was in process died on the order paper. Among these were bills to amend the Broadcasting Act to give the broadcast regulator, the CRTC, authority over streaming services and legislation to hold internet platforms responsible for certain types of harmful content disseminated on their services if not removed expeditiously when notified by the authorities. Other initiatives of the previous Trudeau government, such as promised legislation to require digital platforms to pay content providers for the use of news clips, a review of the Copyright Act to address such issues as the role of Artificial Intelligence in copyright and the impact on copyright of the Internet of Things, as well as outstanding commitments under the new NAFTA (USMCA, called CUSMA in Canada) to extend Canada’s term of copyright protection by an additional twenty years, will need to be introduced into Parliament. The Liberal Party platform states that a re-elected Trudeau government will introduce legislation within 100 days to “require digital platforms that generate revenue from the publication of news content to share a portion of their revenues with Canadian news outlets”.

In addition, there are other pressing issues affecting copyright that the “new” Liberal government needs to address, such as dealing with the fallout from the Supreme Court’s recent decision declaring that “mandatory” tariffs for reproducing published materials, even though certified by the Copyright Board of Canada, are only optional for users such as post-secondary educational institutions. This decision has effectively gutted Canada’s collective rights management system. There is also a need to clarify and narrow the expansive fair dealing rules for educational use that have resulted in a precipitous decline in Canadian educational publishing. Finally, there are the specific commitments in the Liberal Party platform, such as the news content issue mentioned above, and a promise to “protect Canadian artists, creators and copyright holders by making changes to the Copyright Act including amending the Act to allow resale rights for artists”.

The Artist Resale Rights (ARR) issue is an example where Canada is out of step with most countries (the US is in the same position) by not enabling artists to recoup a small portion of the selling price of their work when it is re-sold commercially. I documented in a recent blog post some of the inequities that arise when works of art that were originally purchased for a pittance from struggling artists are re-sold for many times the original value years later, yet not a penny goes back to the artist. If the Liberals follow through on this promise, it would seem that these inequities will soon be a thing of the past. As for what other “changes to the Copyright Act” the Liberals have in mind is anybody’s guess. They may address fair dealing and collective licensing, or they may not. The wording gives them lots of wiggle-room.

None of these issues got much or any airtime during the recent election, despite references in the party platforms. The election was instead focused on the handling of COVID, vaccination passports, economic recovery, the environment, gun control, the reason for the election in the first place and, as always, personalities. At one point, I responded to a solicitation from the CBC on issues that citizens could ask the party leaders during the one English-language broadcast debate that was held. I dutifully suggested a couple of copyright questions. To no-one’s surprise, I was not invited to put my questions to the party leaders, and no-one else did either. Copyright is seldom a front-burner issue for most citizens, although it can have a significant impact on a range of issues from economic development to innovation and artistic creativity to cultural expression. About the only time copyright got any news coverage during the campaign was when Warner Media filed a copyright takedown notice with Twitter in the US requiring the removal of a tasteless and risible Conservative Party attack ad against Justin Trudeau that infringed on Warner’s copyright in the 1971 film Willy Wonka and the Chocolate Factory. You can read more about that social media “own goal” here.

Just as the Liberal Party platform made passing reference to copyright, the Conservative platform–which of course will not be implemented since the Conservatives will remain in opposition–contained one notable reference. The platform states that;

Canada’s Conservatives will….recognize and correct the adverse economic impact for creators and publishers from the uncompensated use of their works in a manner consistent with the unanimous recommendations of the Heritage Committee of the House of Commons Report in 2019

For the record, those recommendations from the Heritage Committee report Shifting Paradigms were as follows;

“Recommendation 18

That the Government of Canada amend the (Copyright) Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available

and

Recommendation 19

That the Government of Canada promote a return to licensing through collective societies”

This comes back to the ongoing dispute between the copyright collective Access Copyright and York University where York finally prevailed at the Supreme Court in arguing that they were not required to pay the certified “mandatory” tariff for reproducing materials in Access Copyright’s repertoire. (For the background to this long-running dispute, see here, here, here and here). While York won the point on whether the tariffs were mandatory or not, the issue of whether the university’s use of published materials represented by Access Copyright constituted fair dealing under the education exception was not decided. However, the language used by Justice Abella in delivering the Supreme Court’s decision strongly suggests that if an infringement case were brought, the universities could argue that even though they reproduced and distributed entire works without payment of licensing fees, they were simply assisting students to exercise their individual user rights. Enactment of Recommendation 18 of the Heritage Committee report would deal with this anomaly.

Whether the Trudeau government will be prepared to act on this recommendation remains to be seen. The Liberal platform makes no specific reference to this issue–which has resulted in significant declines in revenues to publishers and authors and has led to a hollowing out of the Canadian educational publishing sector–although in true Liberal fashion it undertakes to throw more money at the problem (“$43 million per year to support Canadian authors and publishers”).  At least if the Liberals do decide to tackle the thorny issue of educational copying, they will know that they should have support from the official opposition.

How successful they will be in pushing forward on their copyright and content agenda under a second minority government remains to be seen. The draft legislation to subject streaming services to the Broadcasting Act ran into a buzz-saw of opposition in Committee from the Conservatives, although it eventually passed the House of Commons only to die in the Senate when the election was called. The main issue was whether requiring platforms to apply algorithms promoting Canadian content to user-generated content was an infringement of free expression, although valid questions could also be asked as to whether streaming services lend themselves to oversight in the same way as the highly regulated world of broadcasting. That legislation passed the House with the assistance of the Bloc Quebecois, which—as the self-appointed defenders of Quebec culture—are generally pro-creator and pro-copyright. However, it was held up in the Senate and did not become law the last time around.

There is an ambitious content and copyright-related agenda that the “new” government will inherit and have to deal with. In executing on plans and promises, the Liberals will have to get the support of one or more of the smaller parties just as they have been doing since 2019. The parliamentary process had been working relatively well, but it required time, patience and sometimes compromise. A Parliamentary majority is a much more pleasant way to govern. But that didn’t happen, so we will have to see how many of the Trudeau government’s stated objectives get translated into law this time around.

© Hugh Stephens 2021. All Rights Reserved.

Michelle’s Country Music Murals: An Update

Source: author photo (c) Michelle Loughery

Some readers may recall two blogposts (Mural, Mural on the Wall and Were They Commissioned, One and All?) that I wrote a couple of years ago about muralist Michelle Loughery and her copyright dispute with the Merritt Walk of Stars Society. The disagreement was over who held the copyright to a series of murals that she and a team of volunteers, local artists, and at-risk youth had painted on the walls of various businesses in the small town of Merritt in the interior of BC, about 3 hours’ drive east of Vancouver. Michelle was the artist who designed, directed, and executed the work, in the process training a group of indigenous youth in life and employment skills. The project was funded through government job skills training grants. The youth and various program staff, including Loughery, were paid from these funds. However, what started out as a great community project became enmeshed in a bitter and (it seems to me) unnecessary and avoidable copyright dispute. The controversy arose because of the desire of the Society to value the murals as part of a process of getting additional grants. Sadly, the dispute has not been resolved and continues to bedevil the economic recovery efforts of the community.

This past summer Merritt was surrounded by out-of-control forest fires and an evacuation alert was issued, although not executed, but a couple of small towns not far away burnt to the ground. The fires, combined with the economic impact of COVID, severely damaged one of the town’s main industries, tourism. Tourism was behind the idea of proclaiming Merritt to be the “Country Music Capital of Canada” in the first place. The idea grew out of the Merritt Mountain Music Festival which took place for a few years from the early 2000s to around 2010. One year it attracted almost 150,000 attendees to a town of just 7,000, so you can imagine the strain it put on resources to provide logistical and security support for that number of people over just a few days in the summer.

Source: author photo (c) Michelle Loughery

Some people I talked to were glad to see the festival fold because of the security and health issues it brought with it, although it also created some financial benefits for the town. In any event, building off the publicity generated by the festival, a number of people in Merritt came up with the idea of the Walk of Stars, where handprints of some of the entertainers performing at the Festival were displayed at different locations in town. At around the same time, Loughery was invited to Merritt to manage a project to paint murals of country music stars on the walls of various buildings in the community, with the locations provided by local merchants. She had just completed a similar project in a neighbouring town (Vernon, BC). Loughery painted the murals while the youth involved were given job, life skills and trades training on the various projects, including construction, mural training, scaffold building, façade painting, fence building, landscaping, cultural training, and job experiences in local businesses. I have talked to several people who were involved in the project either through volunteering or working with the youth participants. They were enthusiastic about the benefits it had brought both them and the community.  

Alongside the murals, a country music museum was established, called the Canadian Country Music Hall of Fame, displaying memorabilia from various stars. The name was licensed from the Canadian Country Music Association in Toronto. Tied together with the Walk of Stars, the murals, a restarted music festival on a smaller scale and the museum, Merritt had built itself a unique tourist attraction to add to the fishing and camping activities in the region. Everything went well for a while but started to go south, as I wrote in earlier blogs, when issues arose over who owned the copyright in the murals. 

The Walk of Stars Society claimed that Loughery had been “commissioned” to do the work and thus the copyright in the murals resided with them. At the time the murals were painted, copyright law in Canada provided that a person or entity who commissioned an “engraving, photograph or portrait” owned the copyright, absent an agreement to the contrary with the artist. (This default to the commissioning party was removed in the Copyright Act revisions of 2012 but the murals were painted before that). Loughery’s position is that she was not commissioned to produce the works, but rather was a partner in the project, assisting with fund-raising efforts (although she does not deny that she received compensation for her work) and, further, it was agreed that she would retain copyright. The issue has not gone to court but the fallout from it continues. 

Source: author photo (c) Michelle Loughery

The latest manifestation relates to efforts to reboot the economy, post-COVID (when will that be?), through a series of linked murals along various highways in the province. There is a precedent for this; the Route 66 Mural Art project in the US. Loughery was involved in this project some years ago through the National Route 66 association. She consulted for the town of Cuba, Missouri, one of the towns on Route 66. Various spin-offs have been floated over the years, one of them using murals to tie together the various towns through which Route 99 passes in California, Oregon, Washington, and British Columbia.

Loughery has been promoting a revival of the idea through Art Route Blue, a concept funded by Destination BC, the provincial tourism promotion body. The goal is to get regional tourism associations to work together to apply for provincial grants to develop a linked art route in the province. However, uncertainty over who owns the copyright to the murals in Merritt (and thus the ability to reproduce them in promotional material) is becoming an impediment to moving forward. The role of Loughery and her “Art Route Blue” in moving the project forward appears to be another potential issue, but this all seems to go back to the original dispute over copyright ownership. Loughery sees the artist as central to the project. Without art there is no art route; without the artist there is no art. Many elements have to come together to make this work, but success is likely to come only through a cooperative partnership among all the players. The solution should be straightforward in my view; recognize the rights of the artist and negotiate a reasonable licensing arrangement that would clarify the ownership question and make the controversy go away. I am not privy to any discussions on this—none appear to be happening at the moment—but the dispute appears to be more about recognition and role than money, although clearly there are financial aspects to the art route project.

It may also be necessary to get the permission of the some of the stars in the murals, or their estates, for use of the murals. While there is no “personality right” (publicity right) in Canada as there is in some US states, as explained in this posting on the legal blog Lexology; there are potential concerns.

In Canada, rights of publicity are protected by the common law tort of ‘wrongful appropriation of personality’, sometimes referred to as ‘misappropriation of personality’, being the unauthorised commercial exploitation of a person’s name, image, voice or likeness. To be actionable, the use must clearly identify the person before any wrong will be attributed.”

Source: author photo (c) Michelle Loughery

Some of the artists granted permission for their likenesses to be reproduced in the murals to promote the youth project, but not necessarily in promotional material for other purposes.

Meanwhile, the agreement between the Merritt Country Music Hall of Fame and the  Canadian Country Music Association has expired, and will not be renewed. The facility in Merritt will continue to operate under the new name of the Canadian Country Music Hall of Honour. It is not clear to me why this happened—presumably the licensing fee for the name and affiliation. When I visited Merritt recently, the Hall of Honour was advertised as being open, but was not. COVID was perhaps a factor.

Despite COVID, and the fires, I am sure the town will bounce back, and tourism will continue to be an important part of the economic recovery story. The idea of leveraging off the country music festival is a good one. The assets are still there. The Walk of Stars handprints are well maintained, and the murals are generally in good shape (Loughery has returned from time to time to touch them up), although a major misunderstanding occurred when the owner of one of the buildings (the Desert Inn) on which an Elvis mural had been painted by Loughery—with permission from Elvis Presley Enterprises—decided to paint over half the work. Perhaps the new owners, who had changed the motif of the facility to Indian, complete with an Indian restaurant (Mughal Gardens), decided that Presley and pappadums don’t mix.

I hope that the ongoing controversy over copyright in the murals can be resolved amicably. If you are in a small rowboat in high seas, it is important to pull the oars in one direction. Settle the issue and pull together, and maybe the murals will become part of a wider art route project that will boost tourism in the region while providing some income and recognition for the artists who create the works. That would be the best update of all.

© Hugh Stephens 2021. All Rights Reserved.

Some Reflections on What Can—and Cannot—Be Protected by Copyright

Source: Author

My wife was flexing her wrist, extending her forefinger and manipulating her thumb, following the instructions on the sheet in front of her that the physiotherapist had provided. She (my wife that is) had broken her wrist a few weeks earlier, in an unfortunate fall. With neither of us having ever broken a bone before, it brought home the reality of how challenging recovery from even a relatively minor break can be. Once the operation has taken place, and later when the cast is removed, you start to think you are out of the woods. But then the hard work—the regular and constant physiotherapy and exercise to restore use of the limb—begins. In this instance therapy consisted of ultrasound, massage and personal exercise and manipulation at home, following a set of illustrations and exercises she was given at the clinic.

Having a sharp eye for all things related to copyright, I immediately spotted the “©Island Hand Therapy Clinic 2010” on the instruction sheet. There is nothing protectable about the bone or ligament structure in a person’s wrist any more than the knowledge of how to restore movement and circulation to a limb. So how could this set of instructions outlining and illustrating a sequence of exercises be subject to copyright protection?

This example is a good illustration of the distinction in copyright law between an “idea” and the “expression of an idea”, with the former not subject to copyright while the latter could qualify. The instructions, illustrations and sequence of these specific exercises had all been developed by this clinic for the exclusive benefit of its clients and are the clinic’s particular expression of the idea of wrist manipulation to regain movement. They form part of its intellectual property and are a benefit provided to clients who pay to use the services of the clinic. The exercises needed to regain movement in a limb cannot be copyrighted but the explanations and illustrations, when put together, form an expression of the idea.

Assertion of copyright is simple and straightforward (one of the major advantages of this form of intellectual property, compared to the more costly and legalistic processes required to register a trademark or secure a patent, for example). The ubiquitous © sign is not even required, although to affix it is a good idea as this is a conscious assertion of copyright. In Canada, a copyright can be registered for a modest fee, but it is not necessary to do so. In the US, a copyright does not have to be registered with the US Copyright Office, but registration is necessary if a legal case is to be brought against an alleged infringer.

Although in most countries a work does not have to be registered to be eligible for copyright protection, some form of “fixation” is required for it to constitute a copyrightable work. (A musical score, a photograph, a printed facsimile, for example). Fixation can be difficult to determine at times, as I discussed in an earlier blog post “My Fixation with Fixation”. Recently a Chinese court has extended the concept of fixation even further, ruling that the arrangement of a water fountain display to music can be protected by copyright, notwithstanding the reality that no two performances could be identical (owing to factors such as weather and light). The court dealt with the issue of fixation by virtue of the fact that the water and music show were replicable because of the design of the devices governing the directions and timing of the spray, and the programming of the music.

Most copyrighted works are not infringed, and most minor infringement seems to go unchallenged. It depends on the circumstances. It would be unlikely that the hand clinic would take any action against a patient who unthinkingly shared her physio exercises with a friend who was also having wrist problems. But they might object if another clinic appropriated, copied and distributed the exercises to their own patients. That little © at the bottom of the page is a good reminder and an insurance policy.

The distinction between an idea and its expression is a concept that I explored in an earlier blog “Copyright on the Rocks”.It is something that jurists have grappled with over many years as interpretations of what is subject to copyright evolved. Today, it is widely accepted that a procedure, process, system, method of operation, concept, principle, or discovery (to quote the US Copyright Act) are not subject to copyright, nor are facts, but that wasn’t always the case. 

In the 19th century, some newspapers in England pushed to assert copyright over the news that they generated, arguing that the considerable effort and expense they went to in collecting the news entitled them to protection against copying, at least for a specified period of time. For example, if TheTimes (of London) paid a correspondent to report on events abroad (a war for example), and then invested in the costs of transmission (by telegraph) of the latest news, why should rival newspapers be simply allowed to “cut and paste” the news that the Times had generated? Widespread copying of the news in the morning papers by the evening papers, and literally “cutting and pasting” columns of material into subsequent editions, was a common practice in the early days of journalism (and widely accepted).

In a famous case in the 1890’s known as Walter v Steinkopff (documented in Prof. Will Slauter’s book, “Who Owns the News: A History of Copyright), The Times sued another journal, the St. James Gazette, for copyright infringement for reprinting both part of a story by Rudyard Kipling and several news paragraphs. The Gazette admitted infringement with respect to the literary excerpts, but the case turned on the news paragraphs. The Times had taken the necessary steps to ensure payment to the journalist and had arranged assignment of the reporter’s copyright to the newspaper. The case was heard by Sir Ford North who ruled that even if cutting and pasting was a common practice in the British newspaper business at the time, the Times had not expressly consented to it. Moreover, the Times had complied with the legal provisions regarding establishment of copyright. However, North pressed the plaintiffs as to what exactly they thought copyright should protect. To quote from Slauter (p.175);

If The Times published a telegram announcing the death of a foreign leader, would other papers be prohibited from publishing the same news unless they obtained their own telegram? After some back and forth, counsel for The Times was willing to concede that other papers could not copy The Times’s report verbatim but that they could restate the facts.”

North summarized by noting that there is no copyright in news, but there is or may be copyright in the particular forms of language or modes of expression by which information is conveyed. In other words, facts (news) by themselves cannot be copyrighted, although the form of news articles may be subject to copyright protection. The same issue was settled in the US in a precedent setting case in 1921. (Chicago Record-Herald Co. v Tribune Ass’n)

And then there is the “merger doctrine” to consider. This occurs when there are only limited ways to express an idea, where the expression merges with the idea itself and is therefore not protected. The most recent example of what was probably a merger doctrine case, although it was not decided as such, was the US Supreme Court decision on Google v Oracle. Google had copied Oracle’s Java APIs (application programming interface) or source code (aka “declaring code”), without payment or permission, in order to facilitate programmers writing programs for the Android platform, which uses Java code. Google argued that the APIs, which provide a kind of underlying framework for writing computer code, (a so-called “building block”) were not copyrightable as they were basic utilitarian functions. Initially the court agreed but this ruling was overturned on appeal. The case was further appealed to the US Supreme Court where Google also argued that even if the APIs were subject to copyright, there was no infringement because Google’s use was fair based primarily on the fact that its subsequent use of the APIs led to new works and was thus transformative. (This is a gross oversimplification of the case but outlines the basic elements. A more detailed explanation can be found here).

In the end, the Supreme Court did not rule on whether the APIs were subject to copyright protection—which was the essence of the case. Instead, it focused on the fair use argument, and concluded that Google’s use was fair. This is a controversial finding as it potentially opens the door to other arguments that an unauthorized use of a copyrighted work that leads to a transformative product or service is legal under the US fair use doctrine. The Supreme Court tried to ring-fence its decision by stating that its ruling applied only narrowly to “declaring” computer code, but others have already been quick to try to jump on this bandwagon. Ultimately, the real question in Google v Oracle was whether the underlying code—which some have compared to a QWERTY keyboard—was copyrightable because of the limited ways in which computer code can be written.

This landmark case is a long way from my wife’s wrist exercise instructions, which shows how quickly one can go down the rabbit hole when discussing copyright issues. However, the principle of what can be copyrighted, and what cannot—based on the distinction between ideas and facts on the one hand, and the original expression of ideas and facts on the other—is a fundamental if sometimes blurred principle.

I am not sure whether I have made the distinction any clearer or simply blurred it more. But if you are in any doubt, please note the © symbol below. After all it is fixed (you’re reading it); it is my expression of the idea of what is and is not subject to copyright and it is original. Who else in history has connected Google v Oracle with Walter v Steinkopff (1892) with a Chinese court’s copyright finding on a water fountain display with my wife’s hand clinic physiotherapy instructions? It qualifies for the big ©! And I’m pretty confident that no-one is going to challenge my assertion of copyright.

© Hugh Stephens 2021. All Rights Reserved.

John Degen’s Twitter Broadside on the Access Copyright v York University Copyright Case: Right Message; Wrong Target?

Source: http://www.shutterstock.com

John Degen is Executive Director of the Writers’ Union of Canada. I don’t know Mr. Degen nor have I ever met him but I do know that he is a passionate defender of the interests of authors, as well as being a successful published novelist and poet himself. Recently Mr. Degen published a very long, almost “stream of consciousness” Twitter broadside, commenting on the recent decision of the Supreme Court of Canada (SCC) on the Access Copyright v York University cross-appeal. It was visceral, raw, personal, bitter (although leavened with some humour)….and fully understandable. While I take issue with certain aspects of what Mr. Degen said, especially his attacks on the credibility of the Court, one has to look at the context. His comments reflect a deep frustration with the system, born of a sense of betrayal. I think he reflects the views of many writers. However, both the problem and the solution lie not with the Supreme Court, but with the Parliament of Canada.

Before I get to Mr. Degen’s long Twitter post, a bit of background is necessary for the non-cognoscenti amongst you. The Supreme Court’s decision, outlined in all its legal intricacies by lawyer Barry Sookman (“Certified Tariffs not Mandatory Says SCC in York v Access Copyright”), has undermined the collective licencing system that has prevailed in Canada for the past quarter century by upholding the Federal Court of Appeal’s (FCA) earlier decision that “mandatory” tariffs (royalty fees) for reproducing copyrighted materials, certified by the Copyright Board of Canada after extensive hearings, are not mandatory with respect to users. According to the FCA’s ruling, mandatory tariffs apply only to providers of copyrighted content and require them to provide access to the material covered by the tariff at a rate set by the Copyright Board. As I commented at the time When is a ‘Mandatory Copyright Tariff’ Mandatory Only if you Opt-in?”, the FCA’s ruling demolished a major pillar of the collective licensing system in Canada. That decision has now been upheld by the highest court in the land.

To add insult to injury, while dismissing the appeal by the Canadian Copyright Licensing Agency (Access Copyright) against the FCA’s decision on mandatory tariffs, the Supreme Court then opined (negatively) on the FCA’s finding that York University’s Fair Dealing Guidelines were not fair and had facilitated infringement. At the same time, however, the SCC declined to reverse the FCA’s decision by declaring the Guidelines fair. York had argued fair dealing as a defence against Access Copyright’s initial infringement lawsuit and had offered its Fair Dealing Guidelines as proof. York had cross-appealed to the SCC the FCA’s decision that found the Guidelines to be unfair. Whether the Guidelines are fair or not remains undecided and may have to be further tested though litigation.

The reason given by the Supreme Court for declining to rule on whether York’s Guidelines were fair in the context of fair dealing was essentially technical, namely that since the tariff to be paid for copying was optional rather than mandatory, there was no longer a valid dispute between the university and Access Copyright. This flows from the fact that the collective is not a rights-holder, but rather a collective established to collect licensing fees and thus, according to the Court, it has no status to represent rights-holders in an infringement action. The structure of collective licensing in Canada is largely based on a system whereby rights-holders (e.g. publishers and authors) come together to form an organization that has two basic functions; (1) to facilitate the licensing of content by users and (2) to collect and distribute licensing fees to rights-holders. This avoids the necessity of users having to track down hundreds of individual rights-holders to clear (i.e. license) material and is a cost-effective means for authors to collect and receive revenues for uses of their work. In most instances, certainly in the case of Access Copyright, the collective society does not itself hold any rights but rather represents rights-holders.

This structure served both users and rights-holders well until recent years when some users, particularly post-secondary educational institutions of which York became the poster-child, decided they would no longer seek licences from Access Copyright. Instead, they chose to rely on fair dealing exceptions in the Act (education was added as an exception in Copyright Act revisions in 2012 although the decision to refuse to obtain licences preceded this change). In other cases, the universities undertook direct negotiations with some individual rights-holders. This refusal to obtain an Access Copyright licence came at a heavy financial cost to the institutions in the form of additional staff time and legal fees, as I noted in a recent blog (“Throwing Good Money After Bad: How Canadian Universities Wasted Millions by Not Securing a Copyright Licence”). It would have been so much simpler, and avoided so much litigation, to have simply obtained a licence, paying authors a reasonable sum for use of their work.

For many years tariffs (an annual cost per student—generally around $15 per student per year) were set by the Copyright Board if agreement could not be reached between the collective and users (educational institutions). The expectation and understanding was that if a university accessed material in the collective’s repertoire after the Copyright Board  had fixed a tariff, the institution would be subject to that tariff unless fair dealing could be established. For reasons related primarily to shortcomings in the language of Copyright Act amendments enacted in the 1980s and late 1990s, the SCC has now determined that the mandatory nature of the Copyright Board tariffs was not established in law. Instead, the Court reverted back to a 1930s interpretation whereby the mandatory nature of the tariff fell on the collective rather than the user. That is to say, if a user offers to acquire a licence, it is mandatory on the collective to issue it at the rate determined by the Copyright Board. That may be what the jurisprudence and the language of the law suggests; whether such an interpretation is just or even sensible is another question entirely. Jurisprudence and justice are not always the same. That is why it is incumbent on Parliament to fix what the SCC has broken; the collective licensing system for copyrighted materials in Canada.

What does Mr. Degen have to say about all of this? I called his thirty-one tweet posting over 3 days a “broadside” which seemed to be the best and most balanced description although it had some of the characteristics of a “rant”, in the sense that he “spoke at length in an impassioned way” (one definition I found). But rant can also have a negative connotation so I didn’t call it a “rant”. I thought about “diatribe” (“a forceful and bitter attack”), but this also has pejorative air to it. It had elements of a “harangue”, implying strong feelings, but still a bit negative. In a sense it had elements of all these descriptions, but this is not surprising given deep frustration with a system that seems to be stacked against creators. So let’s call it a “broadside”.

Degen aimed his guns squarely at the Court’s credibility, arguing that the decision damaged its reputation and “sorely tested” his trust in the Canadian justice system. Degen is bothered by the fact that the Court reached its decision in record time (40 days—“perhaps the speediest SCC decision on record”) and the fact that it was written by retiring Justice Rosalie Abella, whose husband is a former professor at York. While not endorsing the suggestion that she should have recused herself, he repeats it. While he does not say there is a conflict of interest, he emphasizes that one has to avoid the appearance of a conflict. He mentions that the Court did not rehearse much of the testimony filed by groups supporting Access Copyright and describes the decision as having been made on a “technicality” and being “unbalanced”. He even notes hearing that some unnamed legal professionals have described the decision (off the record) as “embarrassing” and “ridiculous”. That’s a lot of criticism to throw at the Court. But let’s not forget the inconvenient fact that Justice Abella’s decision and analysis was joined by the other eight Supreme Court justices. It was a unanimous decision. The reality is that the Court cannot create the law; it can only interpret what legislation says and if mandatory tariffs on users do not fall within the four corners of the law, the Court cannot stretch the law’s footprint.

Mr. Degen is also upset with the academy, particularly with University of Ottawa professor Michael Geist, a longtime copyright skeptic. Degen points out the discrepancy between Geist’s rising salary (yes, it has increased over 15 years, which is not surprising) and the economic plight of authors. He hints that the alacrity with which Geist tweeted out and commented on the SCC decision may have been due to inside knowledge regarding its content. But Geist is a prolific if annoying commentator and watches this stuff like a hawk. It doesn’t surprise me that he focused on putting his spin on the interpretation of the decision as quickly as possible, with an initial tweet just 3 minutes after the decision was released followed by others shortly after. Other members of the academy, such as Ariel Katz of the University of Toronto Faculty of Law are largely responsible for the Supreme Court’s finding on mandatory tariffs. Katz researched the issue extensively, and published articles critical of York’s legal defence team when they initially did not adopt his arguments. Katz’s work was referenced by the SCC in reaching its decision. Law professors in ivory towers have the time to research this sort of thing which involved parsing legislation going back to the 1930s. But hey, why shoot the messengers? If the law is deficient, don’t blame those who interpret it. Fix the law.

To resolve issues where there is an anomaly between the letter of the law and legislative intent, action by the legislative arm is the bottom line. In the Allen v Cooper copyright infringement case in the US, the Supreme Court of the United States (SCOTUS) openly invited Congress to correct legislative deficiencies that allow US state governments to thumb their nose at copyright law and to copy with impunity. The SCOTUS ruled 9-0 that 1990s Congressional legislation failed to override US state sovereign immunity with respect to copyright infringements, but noted that this conclusion;

“need not prevent Congress from passing a valid copyright abrogation law in the future. In doing so, Congress would presumably approach the issue differently than when it passed the (original legislation)….Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. “

It was a clear road map for legislative action to remedy what the Court could not do because its hands were tied by the wording of the law. The need for Congress to take action has been reinforced by a study from the US Copyright Office (USCO) that held public hearings and examined the extent of state infringement and abuse of copyright. It’s report, just released, concluded that “infringement by state entities is an issue worthy of congressional action”. It would be nice to see USCO’s Canadian counterpart, the Canadian Intellectual Property Office (CIPO), take such a independent view on the mandatory tariff issue but the USCO, as an entity of the Library of Congress, has far more independence than CIPO.

In any event, similar to the comments of the US Supreme Court with regard to the role of the legislative branch, the SCC noted (at para 76) that “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.”

This is, in fact, where John Degen ends up his Twitterspiel. “Parliament cannot let this profoundly damaging Supreme Court ruling be the last word”, he concludes. I agree. Focus on the legislative solution.

The message I am trying to convey (with no disrespect to Mr. Degen) is that one has to be very careful in casting doubt on the credibility of the Supreme Court no matter how disappointed one is at the outcome of a case. After all, the day will inevitably come when the SCC makes a ruling on some issue that favours creators and rights-holders, and in that instance it will be seen as all-wise and all-knowing. So let’s give the SCC the benefit of the doubt and accept that it has interpreted the law as it exists. The ball is now back in Parliament’s court and if the government of the day (we will know who that will be on or shortly after September 20, given the current general election) wants to maintain the proven system of collective licensing for the benefit of both users and rights-holders, it is going to have to introduce legislative amendments to address the Supreme Court’s legally-correct but socially and economically unjust decision.

© Hugh Stephens, 2021. All Rights Reserved.