Update on Access Copyright – The Demise of a Dubious Enterprise?

As I’ve said before in my February 23, 2024 blog,

In 2018, the Province of Alberta and dozens of K-12 school boards sued Access Copyright for a refund of $25 million they allegedly overpaid for Access Copyright licences for 2010, 2011 and 2012.

Access Copyright, on the other hand, has defended and  counterclaimed for a potentially much larger amount based upon subsequent Copyright Board tariffs.

The Plaintiffs (consisting of “the Ministries of Education of 10 Canadian provinces and territories (excluding British Columbia, Ontario and Québec) and each of the school boards in Ontario” achieved a massive victory in the litigation, as I’ve written. Access Copyright (“AC”) suffered a monumental loss.

AC has, not surprisingly, decided NOT TO APPEAL this decision – presumably because it was so clearly correct, extremely well reasoned, and very thorough at 121 pages. As I said in my previous blog, the decision would have been “ likely to be upheld in any appeal.” The very likely confirmation of its loss in the Federal Court of Appeal would have been even more devastating for AC, not to mention resulting further legal fees, costs, and accruing interest. Moreover, by not appealing, AC can resort more immediately to the old, although desperate and rarely successful, strategy of using a litigation loss to try to convince the Government that the legislation is broken and needs to be fixed.

As the  decision states at para. 36, the Plaintiffs were seeking $25,493,109.36 and succeeded in their  claim. AC’s counterclaim was totally dismissed. Given the considerable passage of time in this litigation, the nature of  the Plaintiffs’ claim, and the accrual of interest, I am estimating that AC is now on the hook for about $30,000,000. That sum represents about half of AC’s total assets of $59,964,000  and almost 50% more than its Net Assets, based upon its last published audited financial statements for 2022. Clearly, this result will have a major and conceivably even existential impact on AC’s operations and the viability of its business model.

The elephant in the room, of course, is the Supreme Court of Canada’s landmark decision on July 31, 2021 in York University v. Canadian Copyright Licensing Agency (“Access Copyright”), 2020 FCA 77 (CanLII), [2020] 3 FCR 515, <https://canlii.ca/t/j6lsb> which held that Copyright Board tariffs, such as those on which AC depended, are NOT mandatory. I made instrumental submissions in that case on behalf of CARL. This was preceded by the Court’s 2015 decision in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0> in which  Professor Ariel Katz, Prof. David Lametti (as he then was in 2015) and I were very influential in the important result that helped to pave the way for the York decision.

As a result of the York decision, the Copyright Board can do nothing to rescue AC – absent a drastic revision of the Copyright Act that would undo decades of jurisprudence and be not only unwise but quite possibly even unconstitutional.

Sadly, the Copyright Board has a history of incongruously keeping at least one obsolete collective on life support. The Board has managed to keep the Canadian Private Copying Collective (“CPCC”) artificially alive based on a very different legislative mechanism, namely the de jure mandatory private copyright levy, which I, on behalf of the Retail Council of Canada, played a major role in managing to all but eliminate. When is the last time anyone you know bought a blank CD, much less used it to record music? The last publicly reported financial data from the CPCC is from 2017. So, the CPCC has had enough oxygen to pay its small staff,  lawyers, and lobbyists etc. enough to lobby for another day. Here's what they are currently  absurdly seeking in the Pre-Budget Consultations in Advance of Budget 2024:

The CPCC asks that the government amend the Copyright Act to make the private copying regime technologically neutral, requiring large technology companies to finally pay their fair share to copyright holders. The focus of these amendments would be to allow the regime to apply to both audio recording media and devices.

This would supposedly require “minimal revisions to the Copyright Act ” to “make it possible for the CPCC to ask the Copyright Board of Canada to approve a levy on the smartphones and tablets where Canadians now make their private copies”.  They say that these proposed changes will “reinstate a true marketplace solution.” A truly “marketplace solution” for private copying levies would be to see them disappear through repeal of Part VII of the Copyright Act. There are very few, if any, other comparable jurisdictions with comparable private copying regimes that provide comparable levies  and these notably do NOT include the USA, Australia or the UK. Hopefully, the Canadian Government will, upon reviewing the history of this levy and the previous absurd attempts by CPCC to impose it on other types of media and devices, will know how to say no – or better still, to just ignore the ridiculous request and repeal Part VII. The Federal Budget 2024 appears to have wisely ignored the CPCC’s absurd advocacy.

AC has already announced that it is downsizing and falsely blames its troubles on the 2012 legislation that added the word “education” to the fair dealing provisions. That legislation only confirmed the obvious and is totally consistent with several Supreme Court of Canada decisions. IMHO, as I’ve suggested many times, AC can only justify its continued existence if it can provide a valid license for a viable repertoire offering real value at a low enough price to attract the educational community. It should not be coddled with bad legislation or licensing deals with the Federal government that have arguably unnecessary and perhaps even “sweetheart” deals, such as the initial licences that was key to its launch in the 1980s and which apparently and inexplicably continues to date.  The royalty rate for 2016 to 2017 was $621,755.25 and has increased since then by the Consumer Price Index. The deal also includes Copibec, the Quebec counterpart to Access Copyright.

Now, just in time for Passover 2024, the Federal Budget 2024 does NOT accede to Access Copyright’s perennial, incessant, and misleading whining about trying to eviscerate fair dealing rights for educators and others. It bears frequent repetition that Canadian fair dealing rights for users – as spelled out in the statute and upheld consistently by the Supreme Court of Canada – stop far short of what the American’s have provided for users’ fair use rights since 1976 in 17 USC 107.  OTOH, Budget 2024 does include a potentially positive copyright item “to allow the circumvention of digital locks to diagnose, maintain, or repair a product. This will enable consumers to repair their devices where they choose.”

 We shall watch with interest the potential demise of unnecessary, dubious, and obsolete copyright collectives facing existential challenges and which serve nobody’s interest beyond the lawyers, lobbyists, and executives that persist in prolonging their inevitable demise. 

 

A New and Important Book by Prof. Myra Tawfik on Canada’s Copyright History

Canada has slowly asserted an independent copyright position on the domestic and international fronts in spite of intense and immense pressure from the USA and the UK. That independence has taken a long time to achieve, and it has been denied or imperiled many times – including now.

Being something of a copyright nerd, I have a lot of books on Canadian and international copyright. Three of these books deal in various ways with the origins of copyright law in Canada in the 19^th century.

The latest and most detailed book is by Prof. Myra Tawfik of the University of Windsor law faculty.  Her monograph published in 2023 is For the Encouragement of Learning: The Origins of Canadian Copyright Law  Myra Tawfik (Toronto, ON: University of Toronto Press, 2023). (388 pages). Prof. Tawfik has excellent credentials and was cited twice in the landmark 2021 Supreme Court of  Canada decision of York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), <https://canlii.ca/t/jh8bc>. I am honoured that I was also cited in that decision, along with Prof. Ariel Katz and others. I also provided arguments on behalf of CARL that were very instrumental in the decision.

Prof. Tawfik’s book examines in great detail early Canadian statutes and practice from 1824 to 1867, and a summary of how all of these early developments were influential in what was to follow up to January 1, 1924 when the essence of Canada’s current Copyright Act was proclaimed into force “100 years after Francois Blanchet rose in the  Lower Canadian House of Assembly to introduce his Bill for the encouragement of learning” in 1824. 2024 is the centenary of this 1924 milestone which was itself a centenary of the 1824 event. It is too bad that the Canadian copyright academy appears to have thus far overlooked this centenary.

Canada finally stood on its own when in 1924, paradoxically by implementing a statute very similar the UK act of 1911, and finally cut the legal cord with the UK of the Colonial Laws Validity Act with the Statute of Westminster of 1931.

This 19^th century history has been ignored for too long, perhaps because it has generally not been seen as immediately or very obviously relevant to the kind of copyright litigation we have seen in the last many decades and are now seeing.  That said, the Courts occasionally do explicitly reference the origins of Canadian copyright law – for example in Justice Binnie’s opinion in the 2002 Théberge decision, which Prof. Tawfik does indeed mention.

Her book begins with an interesting introduction that highlights her thesis that Canadian copyright is a fusion of British common law tradition and European civil law tradition. She suggests that, in spite of the  colonial treatment of Canada in the 19^th century, Canada (consisting mainly of “Upper Canada” and “Lower Canada” as they were then known) developed a normative approach aimed at “the encouragement of learning”.  The struggle to achieve these “imperatives” continues to this day, as Access Copyright and its protagonists deny the history and destiny of Canadian copyright law and seek to cut back on fair dealing by, among other thigs,  eliminating the word “education” from s. 29 of the Copyright Act.

In the period on which she mostly focuses, namely 1824 to 1867, registration was required for those seeking copyright rights. She has spent 15 years meticulously examining available data about the registrations from that time. Interesting lists are included in the appendices. She goes into great detail about the differences between Upper and Lower Canada in those days. Indeed, there are still some significant differences in how Quebec institutions, collectives, practitioners, and scholars approach copyright law compared to the rest of Canada. So, this background is not only interesting but potentially important.

The main theme of her book is that “…copyright’s earliest focus was on advancing literacy and learning by providing incentives to authors to disseminate their works. These authors were teachers, and the works they were producing  were school books.” This is well documented by her painstaking examination of registration activities and legislative developments in the 19^th century and up to 1924.

Her first chapter deals with “Contextualizing Copyright in Nineteenth-Century British North America” and how British law, deriving from the 1710 Statute of Anne, and British common law, were imported to a certain extent into pre-confederation Upper and Lower Canada. This provides a fascinating political and historical perspective of the early 19^th century in Canada and makes one wonder all the more about how confederations even took place in 1867 and the differences that still survive. There is a discussion about the “Right of Petition”, whereby persons could petition a legislature to buy multiple copies of a book for educational purposes.

Chapter 2 deals with the crucial role of the 1710 Statute of Anne and of American law, as enshrined in the US Constitution to “promote the progress of science and the useful arts.”

Chapter 3 deals mainly with the evolution of copyright law in Lower Canada. Interestingly, it shows that French law was not a part of the 19^th century developments in Lower Canada and the “droit d’auteur” doctrines played no role until the early 20^th  century, when Canada implemented moral rights in its copyright law.

Most of the balance of Prof. Tawfik’s book focuses on the importance of school books, their essential role in the education of children, and the politics and legal efforts to achieve these goals. This includes Chapters 5 and 6 on the 1832 Copyright Act, and Chapters 7 and 8 on the UK Copyright Act of 1842, including how it “put a tax on knowledge in Canada”.

Chapter 9 is an important look at copyright in the “Province of Canada” and a look at registrations as “proxies for overall trends in authorship and printing and publishing.”

Chapter 10 recounts the post-Confederation attempts by Canada to sever copyright ties with England, still very much our colonial master, by virtue of being able to disallow any Canadian law it did not fancy. The heroic Prime Minister Sir John Thompson even made a special voyage to London in 1894 to deal with Canadian copyright but tragically died en route. Canadians should never forget his efforts and his famous quote cited by Sara Bannerman and myself characterizing Canadian authors at that time  as “belonging rather to the future than the present.”

The book lives up to its promise in the introduction of showing how the “normative tradition of a particular body of law” can be useful to judges to “interpret its modern applications”. Indeed, Prof. Tawfik has demonstrated the focus on the encouragement of Canadian books and their essential production, protection, and injection into the Canadian educational system as a guiding principle throughout the 19^th century in the various components of what is now Canada. Accordingly, it is fitting that there has been great interest in the last decade or so in the historical background of Canadian copyright law – and in tracing this back to the early, mid and late 19^th century.

An indispensable companion to Prof. Tawfik’s book is Prof. Sara Bannerman’s 1913 The Struggle for Canadian Copyright, which begins with the 1842 British legislation and goes up to and including up to and even after 1971, the last major milestone in the extremely important Berne Convention.  This book “deals primarily with Canada’s experience  with the Berne Convention between 1886 and 1971.” I am quite honoured to see my name mentioned in the acknowledgments of this important book. Prof. Bannerman, who holds a Canada Research Chair at McMaster University, brings the perspective of an accomplished scholar who is not a lawyer to this important period. Another useful book is Dominion and Agency: Copyright and the Structuring of the Canadian Book Trade, 1867-1918. by Eli MacLaren of the Department of English at McGill University,. This was published in 2011. I am pleased to have both of these books on my shelf. Together with Prof. Tawfik’s recent book, they comprise a remarkable trilogy.

I can enthusiastically recommend all three of these books to any and all of the following:

·       Lawyers who may need to point out the normative tradition, the DNA, and other aspects of early Canadian copyright law and their relevance to modern Canadian copyright;

• All Canadian copyright academics;
•  Members of Canada’s library and archive community;
•  All Canadian post-secondary and public libraries;
•   Policy decision makers at the K-12 and post-secondary levels in Canada;
• Any public servants concerned with copyright policy in Canada; and,
• UK, American, Australian and other foreign copyright scholars who wish to be well informed about Canada’s copyright history.

 HPK

Access Copyright Adds To Its Lengthy Litany Of Litigation Losses

It is easy to lose track of how many major decisions that Access Copyright has LOST in the last twenty years, which include three straight losses in the Supreme Court of Canada (CCH in 2004, Alberta in 2012, and York in 2021) and now a very notable Federal Court decision that is likely to be upheld in any appeal.

The latest is the landmark ruling by Justice Aylen of the Federal Court in Province of Alberta et al v. Access Copyright 2024 FC 292, rendered February 22, 2024.

I have quoted at length from Justice Aylen’s ruling because it is very long (121 pages) and detailed and will be a challenge even to experienced copyright lawyers to read carefully on short notice. For whatever reason, it does not have a table of contents. But it is a “must read” for every copyright lawyer, educator and copyright policy official in Canada. It was issued very quickly and decisively, following final arguments just over a month ago on January 17 and 18, 2024. At times in this blog, I refer to Access Copyright as “AC”. I refer to the plaintiffs, Province of Alberta et al, as the “Consortium”.

 Justice Aylen states the issues, as agreed by the parties, at the outset:

 

[3] The parties have brought a motion for summary trial in which they have jointly asked the Court to answer the following three questions:

1. Have the Plaintiffs been licensees from 2013 onward?

2. If the Plaintiffs have not been licensees from 2013 onward, are the Plaintiffs nevertheless liable in equity to pay Access Copyright?

3. If the Plaintiffs are not liable in equity to pay Access Copyright, is Access Copyright entitled to retain the 2010-2012 overpayment in any event?

 Spoiler alert – here is the bottom line of the ruling at page 121:

THIS COURT ORDERS that:

1. It is declared that the Plaintiffs overpaid Access Copyright for tariff royalties during the years 2010, 2011 and 2012 by an amount equal to $2.35 per full-time equivalent student [Overpayment]. The total amount of the Overpayment as paid by each Plaintiff, exclusive of pre-judgment and post-judgment interest and inclusive of the Copyright Board-set interest factor and taxes, is as set out in Schedule B to the Statement of Claim.

2. It is declared that the Plaintiffs were not licensees of the Approved 2010-2015 Tariff from 2013 to 2015.

3. It is declared that the Plaintiffs are not liable to Access Copyright in equity, or otherwise, in relation to any of the claims advanced by Access Copyright in this proceeding.

4. It is declared that Access Copyright is not entitled to retain the Overpayment.

5. Access Copyright shall pay to each of the Plaintiffs a refund of the Overpayment, in the amounts as set out in Schedule B to the Statement of Claim.

6. Access Copyright shall pay to the Plaintiffs pre-judgment interest on the Overpayment, calculated pursuant to subsection 36(1) of the Federal Courts Act.

7. Access Copyright shall pay to the Plaintiffs post-judgment interest on the Overpayment, calculated pursuant to subsection 37(1) of the Federal Courts Act.

8. Access Copyright shall pay to the Plaintiffs their costs of this motion and the underlying proceeding calculated based on the mid-point of Column III of Tariff B [the Tariff], with the exception of the documentary production costs which shall be calculated based on the mid-point of Column IV of the Tariff.

9. Access Copyright shall pay to the Plaintiffs their reasonable disbursements of the motion and the underlying proceeding. In the event that the parties are unable to reach an agreement, the disbursements shall be assessed by an assessment officer.

10. Access Copyright’s counterclaim is hereby dismissed.

 “Mandy Aylen”

Judge

 

The essence of the Consortium’s claim as stated by Justice Aylen in the very lengthy and detailed recitation of facts was this:

 

[36] On February 16, 2018, prior to the Supreme Court’s decision in York University, the Plaintiffs commenced this action against Access Copyright seeking, among other relief: (a) a declaration that Access Copyright’s tariffs as certified by the Board are not mandatory; (b) a declaration that the Plaintiffs overpaid Access Copyright for the years 2010, 2011 and 2012 by an amount equal to $2.35 per FTE student; and (c) payment by Access Copyright of a refund or monetary damages to the Plaintiffs in the amount of the overpayment, namely $25,493,109.36, together with pre-judgment and post-judgment interest. (highlight added)

 Further:

 

[83] In a letter dated May 4, 2016 [2016 Letter], the Plaintiffs requested a refund from Access Copyright of the difference between the per FTE student rate of $4.81 that was paid in 2010 through 2012 under the continuation tariff and the $2.46 per FTE student rate that was ultimately certified, in accordance with section 15(5) of the Approved 2010-2015 Tariff. The total amount sought by the Plaintiffs was $25,493,109.36. (highlight added)

 

Note that this figure does NOT include interest due.

 This is a  lot of money but the matters of principle are even more important. Justice Aylen pays significant attention and reliance on the Supreme Court’s 2021 decision in the York case, which came down in the midst of this litigation, and the SCC’s 2015 decision in CBC v. SODRAC. I was counsel for CARL in both these cases. I acted for David Lametti, as he then was, and Ariel Katz in the SODRAC case, and made complementary submissions to Ariel Katz in the York case. The York decision relied on the brilliant scholarship of Ariel Katz in his “Spectre I” and “Spectre II” papers. I am proud to have worked with Ariel over the years to demolish the myth of the “spectre” of mandatory tariffs. He deserves the main credit.

 AC’s main argument was that it was entitled, based on the very amorphous mostly common law of “equity”  and other stretches of the common law, to keep this money. But the Copyright Act does not provide for equitable relief for an entity such as AC that is neither a rights owner or exclusive licensee. She rules that:

 

[259] Accordingly, I find that none of Access Copyright’s asserted common law doctrines apply so as to prevent the Plaintiffs from seeking a return of their royalty overpayments.

 

Justice Aylen has some scathing findings re other aspects of AC’s submissions:

 

[192] While this is sufficient to dispose of Access Copyright’s meritless assertion that participating in the tariff-setting process at all levels (before the Board, this Court, and the Federal Court of Appeal) constituted an offer to pay, the rationale for why the Plaintiffs would have participated sheds further light on the absurdity of Access Copyright’s assertion. At the relevant time, the Supreme Court had not yet decided York University, so it was possible that the Plaintiffs would be bound to a statutory licence. If that were ultimately the case, it is obvious that it was in the Plaintiffs’ interests to participate and advocate for a tariff lower than the one being proposed by Access Copyright ($15.00 for 2010 to 2012 and $9.50 for 2013 to 2015), which was an increase of $10.19 and $4.69 per FTE over and above the royalty under the Approved 2005-2009 Tariff.  (highlight added)

 

[224] To interpret the Copyright Act as allowing equitable remedies that permit recovery of a remedy provided for under subsection 68.2(1), but not otherwise available to Access Copyright under the Copyright Act (because the Plaintiffs were not licensees), would be incompatible with the object of the Copyright Act and result in absurdity. Parliament has struck a careful balance between users’ and creators’ rights, as well as with respect to the risk of collective societies developing monopolistic powers. In striking that balance, Parliament chose to make statutory licenses voluntary. To permit Access Copyright to obtain through equity what it cannot obtain under the Copyright Act would turn the copyright regime on its head, by effectively making voluntary statutory licences mandatory through the use of equitable remedies. Under the circumstances, it is “irresistibly clear” that the statutory scheme precludes Access Copyright from seeking the equitable remedies it claims in the circumstances of this proceeding [see Moore, supra at para 70]. (highlight added)

 

[227] This concern lays bare one of the problems with Access Copyright’s equitable claims. While Access Copyright has gone to great lengths to assert in its submissions that it is not making an infringement claim (notwithstanding the language used in its pleading), Access Copyright grounds its equitable claims in the Plaintiffs’ acts of compensable copying. But compensable copying in the absence of a licence is merely an act of infringement—an unauthorized exercise of the owner’s exclusive right. As stated by the Supreme Court in York University, a person who has not paid or offered to pay is not licensed and may be liable for infringement. To permit Access Copyright to obtain an equitable remedy for compensable copying would have the effect of using equity to make the tariff de facto mandatory or permitting Access Copyright (a non-exclusive licensee) to recover for infringement, either of which would turn the copyright regime on its head. (highlight added)

 

[228] Through its equitable claims, considered collectively, Access Copyright ultimately seeks payment by the Plaintiffs of an amount equivalent to the royalties the Plaintiffs would have owed had they been licensees, which would result in the inequities and absurdities addressed above. (highlight added)

 

[229] For these reasons, I conclude that, in the circumstances, it is not open to this Court to award the equitable remedies sought by Access Copyright as to do so would turn the copyright regime on its head. (highlight added)

 

[273] For the reasons stated above, my determination in relation to each of the issues is as follows:

1. Were the Plaintiffs licensees in 2013, 2014 and 2015? No.

2. If the Plaintiffs were not licensees from 2013 to 2015, are the Plaintiffs nevertheless liable in equity, or otherwise, to pay Access Copyright an amount equivalent to the tariffs royalties for 2013 to 2015? No.

3. If the Plaintiffs are not liable in equity, or otherwise, to pay Access Copyright an amount equivalent to the tariff royalties for 2013 to 2015, is Access Copyright entitled to retain the 2010 to 2012 overpayment in any event? No.

 

As to costs, Justice Aylen rules:            

 

[296] Accordingly, I find that the Plaintiffs are entitled to their costs to be calculated in accordance with the mid-point of Column III of the Tariff for all steps in this proceeding, other than documentary production steps which shall be calculated in accordance with the mid-point of Column IV of the Tariff.

 My overall assessment:

 

1.      This ruling is  incredibly important, detailed, meticulous, and comprehensive. It reviews the evidence, the arguments, and the applicable case law in unusual and commendable detail.

2.      I would say, in my opinion and based upon my long experience, that any appeal by AC is unlikely to succeed.

3.      Needless to say, an affirmation by the Federal Court of Appeal would be even further devastating to Access Copyright.

4.      Moreover, any appeal might spark a cross appeal as to costs, which is the one aspect where AC got some sympathy. Column 3 costs, as awarded to the Consortium, are at most a small fraction of actual costs.

5.      Although his cases technically began in 2018, there was a lengthy leadup between the parties at the Copyright Board and in the lobbying corridors. The Consortium deserves credit  for fighting for justice for Canadian educators for so long.

6.      This ruling is anything but shocking. It confirms that Canada, like the USA, does NOT have mandatory tariffs and that fair dealing is important and a key aspect of the copyright bargain.

7.      Given the recent downsizing and restructuring of AC and the departure of Roanie Levy, it will be interesting to see if it now takes a less aggressive litigation approach or doubles down and becomes even more aggressive.

 Finally, this case provided an interesting contrast in advocacy and approach:

·       AC’s positions were very aggressive and sought to turn the Copyright Act “on its head”, as the ruling repeatedly states. AC’s oral advocacy, as led by Sarit Batner of McCarthy’s, was very dramatic, perhaps even melodramatic and too much so, even allowing for the “meritless” and “absurdity” aspect of many of AC’s key submissions..

·       The Consortium’s positions and oral advocacy, led by Aidan O’Neill of Fasken,  were much more restrained, concise, and even understated. In the result, this approach was clearly far more convincing in this instance.

 

Let me remind readers, as  always, that nothing in this blog is legal advice.

 HPK

Note: I've corrected the above to reflect that the final arguments were on January 17 & 18, not February 17 & 18.

Province of Alberta et al v Access Copyright - Court File T-326-18

 I watched with great interest the two-day summary judgment hearing on January 17 and 18, 2024 in Province of Alberta et al v. Access Copyright. This particular proceeding has been going on for almost five years, and the overall confrontation between these parties for much longer. I would expect, with the inevitable appeals, that it could go on potentially for years to come. There is much that I could say about all this, but I won’t say it now.

I will, however, say this. For the purpose of its so-called equitable claim in this litigation, Access Copyright argued in court that the 2012 amendment to the Copyright Act adding the word “education” to fair dealing was not significant – since it wants to assert that the educators had no basis to rely on greater fair dealing rights and somehow, via equity, should be forced to pay up for their allegedly uncompensated use since then. As Access Copyright wrote in its memorandum for the court, “In sum, as the Plaintiffs themselves made clear, nothing within the Copyright Modernization Act converted fair dealing into free dealing.”

 On the other hand, Access Copyright is loudly and flagrantly contradicting this position outside the court room in its aggressive campaign to get rid of the word “education”, since it asserts on the lobbying front that the addition of this word education has cost it over $200 million dollars.

e.g. “TORONTO [July 13, 2023] – Due to changes in fair dealing provisions in the Copyright Act, since 2012, Canadian writers, visual artists, and publishers - an indispensable part of Canada’s culture - have been deprived of over $200 million in unpaid royalties under tariffs certified by the Copyright Board of Canada”

Taking contradictory positions in different forums at the same time is, at the very least, unusual and potentially problematic. Go figure.

BTW, the educators relied very heavily on the SODRAC and York decisions from the SCC, wherein the submissions of Prof. Ariel Katz, Prof. David Lametti as he then was in the SODRAC case, and myself were determinative.

HPK

Province of Alberta et al v. Access Copyright, Federal Court T-326-18 - Next Steps in Summary Trial Motion

 For those following the proceedings in Province of Alberta et al v. Access Copyright, Federal Court T-326-18 (the K-12 proceeding), which I wrote about on October 5, 2023, here is what to expect following the conclusion of the opening statements and evidentiary phase of the summary trial motion. This is the Direction of the Federal Court from presiding Justice Aylen dated October 17, 2023:

Ottawa, Ontario

K1A 0H9

October 17, 2023

BY EMAIL ONLY

Counsel for the Plaintiffs:

Wanda Noel wanda.noel@bell.net, wanda.mary.noel@gmail.com

Ariel Thomas law@arielthomas.ca

J. Aidan O’Neill aoneill@fasken.com

Alexandra Logvin alogvin@fasken.com

Counsel for the Defendant:

Sarit Batner sbatner@mccarthy.ca

Barry B. Sookman bsookman@mccarthy.ca

Daniel G.C. Glover dglover@mccarthy.ca

Laura E. MacDonald lmacdonald@mccarthy.ca

Allison Spiegel aspiegel@mccarthy.ca

RE: THE PROVINCE OF ALBERTA ET AL v. THE CANADIAN COPYRIGHT

LICENSING AGENCY

Court File No: T-326-18

This will confirm the Directions of the Court (Madam Justice Aylen) issued on October

17, 2023

“The following timetable shall apply to the closing arguments on the summary trial motion:

(a) Access Copyright shall serve and file their further written representations (which shall

not exceed 60 pages in length, without leave of the Court) by no later than November 10, 2023,

which shall replace their original written representations.

(b) The Plaintiffs shall serve and file their further responding written representations

(which shall not exceed 60 pages in length, without leave of the Court) by no later than

December 4, 2023, which shall replace their original written representations.

(c) Access Copyright shall serve and file any reply written representations by no later than

December 18, 2023.

(d) The oral closing arguments shall be held, in person, at the Federal Court in Toronto

on January 17 and 18, 2024 commencing at 9:30 am (Eastern).

(e) The parties shall ensure that their further representations address, among other things,

the following issues:

a. Who bears the burden of proof on each issue;

b. How the limitation period issue factors into each of the three issues put forward by the

parties, if at all;

c. Substantive submissions on the asserted limitation bar (including in relation to any

equitable relief), with reference to the relevant evidence (such as the presence or absence of

FTE forms, FTE reporting, invoicing, etc.);

d. Can someone “offer to pay” under the Copyright Act by way of their conduct?

e. Where the Court finds the terms of the licence that Access Copyright asserts that the

Plaintiffs offered to pay for;

f. The distinction between the tariff and a licence, if any;

g. What documents shed light on the parties’ understanding of the term of the licence

that Access Copyright asserts that the Plaintiffs offered to pay for (annual, 3 years, 6 years);

h. Did the Copyright Board amalgamate the two proposed tariffs or simply hear them

together? What impact, if any, does this have on the term of the licence?

i. How, if at all, the principles applicable to oral contracts come into play in establishing

the terms and conditions of the licence that Access Copyright asserts that the Plaintiffs offered

to pay for;

j. How does a continuation tariff impact the term of the asserted licence, if it all;

k. Is there an ability to terminate the licence that Access Copyright asserts that the

Plaintiffs offered to pay for and if so, on what basis and where does that ability come from?

l. Clear submissions as to the evidence relied upon and theory of liability for Access

Copyright’s assertion that the Plaintiffs offered to pay for a licence for each of 2016, 2017,

2018, 2019, 2020, 2021, 2022 and 2023;

m. Is Access Copyright asking the Court to find that the Plaintiffs have engaged in serial

infringement and if so, what evidence supports that assertion?

n. To grant the equitable remedies sought by Access Copyright, does the Court need to

make a finding of infringement?

o. What use can be made of the Copyright Board’s decision and the 2005-2006 volume

study on the issue of infringement;

p. Can the Court consider the agreement between the parties regarding the uses to be

made of the volume study? If so, is this proceeding off-side that agreement?

q. Can the Plaintiffs assert a lack of clean hands on the part of Access Copyright given

the state of the Plaintiffs’ pleadings?

r. Whether Access Copyright has standing to assert each form of equitable relief sought;

s. Whether equitable relief is available under the Copyright Act and if so, pursuant to

which provision(s) thereof;

t. The framing of issue 3 and whether a claim for equitable set-off can be made out if the

answer to issue 2 is “no”; and

u. The specific relief sought by each party in the form of a draft order.”

Yours truly,

Aline Longin

Registry Officer

(highlight added)

 

I asked ChatGPT "What are the copyright issues involved with generative AI?"

 So - I asked ChatGPT "What are the copyright issues involved with generative AI?".

Here's its answer. Not bad for the price and the instant response time...😉:

ChatGPT

Generative AI, which includes models like GPT-3 and similar technologies, can raise several copyright issues and legal considerations. It's important to note that copyright law can vary from country to country, so it's essential to consult with a legal expert for specific advice. However, here are some general copyright issues and concerns related to generative AI:

1. Ownership of Generated Content: One of the primary copyright concerns is determining the ownership of content generated by AI. In many jurisdictions, the creator of a work holds copyright over it. But when AI generates content, there is no human creator in the traditional sense. This raises questions about whether the AI developer, the user of the AI, or both have rights to the generated content.
2. Fair Use and Transformative Use: Copyright law often permits the use of copyrighted material under the doctrine of "fair use" (or similar concepts in different legal systems). Whether AI-generated content qualifies as fair use or a transformative use can be a complex legal question. It depends on factors like the purpose of the use, the nature of the copyrighted work, and the amount used.
3. Training Data and Pre-existing Copyrighted Material: The data used to train generative AI models often includes copyrighted material. The model may inadvertently generate content that resembles or replicates this copyrighted material. This can lead to copyright infringement claims.
4. Licensing and Permissions: Users and developers of generative AI should consider obtaining appropriate licenses or permissions when using copyrighted materials to train models or generate content, especially when using it for commercial purposes.
5. Attribution and Plagiarism: When AI generates content, it may not provide proper attribution to the original sources of information or ideas it used to generate that content. This can lead to plagiarism concerns and copyright disputes.
6. Derivative Works: Generative AI can create derivative works based on existing content, which can infringe upon the original copyright if not properly licensed or transformed.
7. Public Domain and Open Source: It's important to distinguish between copyrighted and public domain or open-source content. Content generated by AI based on public domain or open-source materials may have different legal considerations.
8. User Responsibility: Users of generative AI are responsible for the content generated by the AI they use. They should be aware of copyright laws and ensure that they are not infringing on the rights of others.
9. Case Law and Legal Developments: Copyright law is still evolving in response to AI and machine-generated content. Courts and lawmakers are continually addressing these issues, so it's essential to stay informed about legal developments in this area.

In summary, the copyright issues surrounding generative AI are complex and evolving. It's crucial for AI developers, users, and content creators to be aware of these issues, seek legal advice when necessary, and ensure compliance with copyright laws and regulations in their jurisdiction. Additionally, it's essential to consider ethical considerations related to the use of AI-generated content and its potential impact on creators and the creative industries.