Monday, September 25, 2017

Access Copyright v York University - Notice of Appeal Filed September 22, 2017

Here, thanks to the efforts of our articling student Scott Tremblay who obtained this from the Court, is York's Notice of Appeal.

I will have something to say about this at a later date.

Potential interveners take note.

HPK


Access Copyright v York University Files its Notice of Appeal - Waiting for a Copy

York University has finally - just 10 days ahead of  the extended deadline of October 2, 2017  provided by the Rules because it's summer - filed its Notice of Appeal on Friday, September 22, 2017. HT to @amacek and his wonderful notification service available here.

I've asked York's Counsel for a copy. Otherwise, I'll have to get it from the Court - which could take some time, unless I get lucky. It's a public document - but that does not necessarily mean it's available to the public as soon as it's filed.

I know everyone is interested and potential interveners will be getting ready to start their engines.... so stay tuned....

If anyone gets it sooner than me, please pass it along and I'll post it - with or without acknowledgement of the source, as you wish. As I say, it's a public document.

Anyway, here's the Court's Docket entry below....

HPK

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Proceedings Queries

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Additional information on A-259-17

Table listing additional information
Type Nature of Proceeding Office Language Type of Action Filing date
Federal Court of Appeal Appeal (S.27 - Final) - Copyright Act Toronto English Non-Action 2017-09-22

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Party Information

Table listing party information
Party Name Solicitor Lawyer(s) / file no
YORK UNIVERSITY OSLER, HOSKIN & HARCOURT LLP COTTER, JOHN C
CANADIAN COPYRIGHT LICENSING AGENCY (THE) - -

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Related Cases

Table listing related cases information
Court Number Style of Cause Nature of Proceeding
T-578-13 THE CANADIAN COPYRIGHT LICENSING AGENCY v. YORK UNIVERSITY Copyright Infringement [Actions]

Thursday, September 14, 2017

The Blacklock’s Perfectly Predictable Costs Appeal Dismissal & a Preview of Potential Problems

The Federal Court of Appeal (“FCA”) heard Blacklock’s appeal of Justice Barnes’ costs ruling on September 12, 2017 and perfectly predictably dismissed the appeal with costs. The FCA not only ruled “from the bench” but, as I understand, did not even call upon the Attorney General of Canada to respond. As practicing lawyers well know, this means that Blacklock’s did not raise any issues that even needed an oral response. This was a decidedly decisive disposition.

The FCA’s judgment, which is somewhat surprisingly specific for a judgment from the bench, is available here. Notably, the FCA:
  •           Agreed with Justice Barnes that the issues – primarily the fair dealing issue – were “well-settled in the jurisprudence and, thus, neither novel nor of public significance” (para. 5)
  •           Ruled that Justice Barnes’ costs award was “amply supported” by the factors in the rules and that the Federal Court considered, among other things:

o   the respondent’s success in the litigation and the one-sided nature of the outcome,
o   the appellant’s litigation strategy,
o   the existence of a settlement offer,
o   the complexity of the litigation, and
o   the actual costs of the respondent.
(para7)

The FCA effectively concluded that Blacklock’s submission that “the Federal Court should not have relied upon the appellant’s non-acceptance of the respondent’s settlement offer because this was a test case designed to settle issues arising in related proceedings” worked against Blacklock’s. Indeed, the Court concluded that “Further, to the extent this was a test case, this could have prompted a higher level of activity by the respondent and, thus, would have justified an elevated costs award.”

Appeals of Judge’s costs judgments are very rarely successful because such judgments are “quintessentially discretionary” and an appellant must establish “palpable and overriding error” in order to succeed. This case was particularly predictable because Justice Barnes judgment was so careful and detailed. What was not so obviously predictable is the extent to which the FCA actually reinforced Justice Barnes’ costs ruling. The FCA awarded costs of $3,500 for the appeal.

In my earlier blog entitled Blacklock’s Litany of Litigation Lengthens - Update on Four More Federal Court Actions, I made the following comments about Blacklock’s appeal of Justice Barnes’ $65,000 costs award:
 Costs judgments are normally very difficult to appeal successfully.  The $65,000 award in this instance flows directly from the normal  “mid-point of Column III” approach as explained by Justice Barnes in paragraph 6 of the costs judgment.  The Government was also able to benefit from the “double costs” rule because of “the failure by the Plaintiff to accept an early settlement offer in the amount of $2,000.00” (para. 4). Costs decisions by judges are “quintessentially discretionary” and are rarely set aside on appeal.
Blacklock’s’ resounding initial defeat on the fair dealing issue in Justice Barnes’ careful and convincing judgment (not appealed) and the resulting $65,000 costs award (which is being appealed) together with the Government’s clear and able determination to fight back and its success to date may be of interest to all Blacklock’s copyright litigation defendants, including those outside the Government, who may be considering with their counsel their next steps, such as whether or not to settle or to continue to fight back and to utilize strategic settlement offers.

Blacklock’s faces some further predictable problems. It would seem apparent that Blacklock’s “litany of litigation”, as I have called it, is not going very well for it. It has suffered three very clear and explicit setbacks at the hands of very experienced judges of the Federal Court and Federal Court of Appeal. Blacklock’s did not appeal the substantive judgment of Justice Barnes, which is a now a binding precedent that will be applied by the Federal Court in similar cases. Justice Barnes’s substantive and costs judgments and the FCA’s approval of the latter are all unusually tough, trenchant, and presumably very problematic for Blacklock’s. There is not only a clear comment about the “well-settled” jurisprudence on fair dealing. There is also a clear roadmap on the record as to the strategic use of settlement offers that may enable a defendant to recover “double costs” in appropriate circumstances in similar cases if Blacklock’s persists and insists on going to trial.

It is important to note Justice Barnes’s words in his costs judgment that has just been upheld:
[7] …I also reject the Plaintiff's argument that this case raised "strong public interest considerations". Rather, this case was about the Plaintiff's attempt to recover disproportionate damages without any apparent consideration to the legal merits of the claim or to the costs that it imposed on the taxpayers of Canada.
[8] Any reporter with the barest understanding of copyright law could not have reasonably concluded that the Department's limited use of the subject news articles represented a copyright infringement. Indeed, the fair dealing protection afforded by section 29 of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the acknowledged facts of this case that the litigation should never have been commenced let alone carried to trial.
 [9] I am also troubled by Plaintiff's attempt to claim an excessive amount of damages beginning with its demand for compensation completely divorced from the Department's limited use of the two articles. In no circumstances would Blacklock's losses have exceeded the cost of individual subscriptions by the six officials who read the articles; yet Blacklock's demanded a license fee equivalent to its bulk subscription rate of over $17,000.00. This practice appears to be consistent with Blacklock's usual approach which is to hunt down, by Access to Information requests, alleged infringers and then demand compensation based on an unwarranted and self-serving assertion of indiscriminate and wide-spread infringement. The record discloses that in several instances government departments acquiesced for business reasons and paid the full amounts demanded. In this instance the Department appropriately took a hard line and succeeded in its defence.
(highlight, underline and emphasis added)

Blacklock’s faces other potential procedural hurdles and predicaments depending on the results of case management proceedings underway. There will be an important case management hearing at 90 Sparks St. in Ottawa on Monday, September 18, 2017 at 10:30 AM involving 13 cases against the Government of Canada and some of its agencies. It will deal, inter alia, with whether there should be a trial on the question of whether Blacklock’s even has standing to bring these actions and, whether, in the event that liability is ever established, what the quantum of damages might be. Blacklock’s is asking that it be allowed to proceed to trial against Health Canada and one “non-AG Canada Defendant” and that “pending the disposition of the actions described above, all other actions case managed by the Federal Court relating to copyright infringement of the Plaintiff be stayed”.

I shall follow up in due course.

HPK

 


 

Tuesday, September 12, 2017

Blacklock's Loses Appeal of Justice Barnes' Costs Order: Dismissed from the Bench

From the Federal Court of Appeal Docket:

Court Number :A-25-17
Style of Cause :1395804 ONTARIO LTD. (c.o.b. BLACKLOCK'S REPORTER) v. AGC
Proceeding Category :AppealsNature :Appeal (S.27 - Final) - By or Against the Crown
Type of Action :Non-Action


34 records found for court number A-25-17
DocDate FiledOfficeRecorded Entry Summary
-2017-09-12OttawaThis matter comes on for hearing on 12-SEP-2017 at Ottawa before The Honourable Mr. Justice Stratas The Honourable Mr. Justice Webb The Honourable Mr. Justice Near Appearances: Me Yavar Hameed (613) 232-2688 # 228 for the appellant Me Sarah Sherhols (613) 670-8492 for the respondent Language of Hearing: E Court Usher: M. Young, Shawn Duration: on 12-SEP-2017 from 09:30 to 10:45 Courtroom : Federal Court of Appeal Courtroom - Ottawa Court Registrar Therese Fadel Total duration: 1h 15min. Before the Court: appeal Result: dismissed Reasons delivered from the Bench Documents filed at hearing: 21 "Bill of Costs" Comments: Dars was used for the Hearing of this matter. Minutes of Hearing entered in Vol. 223 page(s) 229 - 231 Abstract of Hearing placed on file


(highlight added)

Blacklock's has lost its appeal of Justice Barne's costs ruling. I will post reasons when they are available.

It will be recalled that Blacklock's did not appeal Justice Barnes' substantive decision.

HPK

Wednesday, August 30, 2017

Copyright Consternation & Confusion on Canadian Campuses as York Cogitates its Appeal

https://upload.wikimedia.org/wikipedia/en/8/87/Captain_copyright.jpg

The Canadian educational community awaits York University’s Notice of Appeal from the July 12, 2017 decision of the Federal Court in Access Copyright v. York University. Regrettably, in the meantime, two major universities – namely Western and York itself – have recently issued copyright statements that appear to be premature, ill-considered and even incorrect reactions to the York decision.

Western appears to have taken upon itself an automated total “book burning” approach to pre-existing online course material. Apparently, instead of relying on the general users’ right fair dealing provision in s. 29 of the Copyright Act, it has slavishly followed the destruction provision of the limited and arguably ill-conceived, poorly drafted and unnecessary “lesson” exception in s. 30.01. Such a seemingly misplaced reliance is directly contrary to the unanimous ruling of the Supreme Court of Canada at para. 84 of the CCH decision, where the Court held that it is unnecessary to rely on a specific exemption when the general fair dealing provision is available.  Obviously, any archived course material that has been legally posted with permission, by way of fair dealing, or otherwise does not need to be deleted. Western’s denial that this has anything to do with the York decision is unconvincing in light of an earlier announcement and, frankly, rings hollow in terms of the newly stated rationale of “system maintenance”.

Perhaps even more astonishingly, York issued the following overreaching and incorrect prohibition just 8 days after the decision was released: Copyright law does not permit downloaded files (PDFs, etc.) to be loaded directly into Moodle or other course web sites.” Since when does copyright law categorically prohibit the uploading of “downloaded files” to a course website? Such uploading and sharing may very well be done legally, for example on the basis of permission, an implied right, pursuant to users’ fair dealing rights, or because the work may be in the public domain.

Both of these announcements are bound to cause considerable consternation and confusion just as classes are about to begin. The source for these highly problematic pronouncements is unclear in both instances. If two such high-powered institutions with access to so much copyright expertise (which, in the case of law faculty, was probably not called upon) can overreact in this manner, one shudders to think what institutions with less available expertise will be doing.

It may be noted that Access Copyright has so far refrained from availing itself of Justice Phelan’s unusual invitation to “apply for an injunction prohibiting the Defendant from reproducing or authorizing reproduction of all copyright protected works falling within the Approved Tariff and offering such reproduction for sale, rent or distribution until all amounts of royalties plus interest are paid.” Instead, York seems only too eager to effectively enjoin itself from what appears to be perfectly normal and indeed essential pedagogical practice.

York University has publicly committed to appeal the July 12, 2017 judgment of the Federal Court. Although it has until October 2, 2017 to file such a document (because July and August do not count for this time calculation), the normal deadline is 30 days after the decision. It is to be hoped that York does not delay much longer as the fall term begins. Such a document would, at least, provide the academic community with a “complete and concise statement of the grounds intended to be argued”, as required by the Federal Courts Rules. This may provide some further insight into how York is reacting to the ruling and what York believes it can overturn in this decision and generally on what basis. It would also, crucially, enable potential interveners to further assess whether and how they may wish to apply for leave to intervene in order to assist the Court with respect to arguments that could potentially be instrumental in determining the outcome (for example, see Prof. Katz’ blog here).

HPK

August 31, 2017:

PS - Following the above posting, York has replaced the above incorrect statement with the following:
Many of York University's licences do not permit copyright-protected content to be uploaded directly to Moodle or other Learning Management Systems.
That statement is somewhat ambiguous and hopefully does not suggest that a licensor can impose any conditions on works not covered by the particular licence. Moreover, the issue of whether a licensor can impose enforceable restrictions on users' fair dealing rights as provided by statute is an open question, particularly in light of two Supreme Court of Canada decisions. More about that another day.

Monday, August 21, 2017

Canada's Diva of Doodlers has Definitively Distilled in this Divine Depiction the Diverging Directions of Debate on Canadian Copyright


Giulia Forsythe, Canada's Diva of Doodlers, has Definitively Distilled in this Divine Depiction of the Diverging Directions of Debate on the Canadian copyright front in these two Distinctive Doodles from last weeks October 17, 2017 #OUCEL17 Copyright event that she organized for university copyright professionals at the University of Ottawa.

Here are the slides for my talk.

My talk is depicted above. Michael Geist's is depicted below.

Thanks, Giulia, for the invite and distinguished doodles.

HPK



Rogers Seeks Leave to Appeal to Supreme Court of Canada re Cost Recovery in Voltage Reverse Class Action







Rogers is seeking leave to appeal the recent Federal Court of Appeal ruling that denied it cost recovery for compliance with the Voltage court order in the reverse class action litigation.


Some background from my blog is here.


A news report is here.


Rogers’ Leave to Appeal material is here.


Rogers summarizes the basis for its leave motion as follows:

Rogers therefore seeks leave to appeal so the Court can provide guidance on the following issues:

 1. What are the obligations imposed on Canadian ISPs by the Notice and Notice Provisions?

2. Do those obligations supplant ordinary principles related to third-party discovery orders, and in particular, the principle that a third party should be reimbursed for the costs it incurs?


It will be interesting to see if Rogers gets leave, and if so who may wish to intervene.


HPK

Access Copyright’s Costs Motion Material Makes for Interesting Reading

Access Copyright as the prevailing party in the recently decided trial judgment in the Federal Court is seeking to recover its legal costs from York University, as is normal. It is asking for a lump sum of $549,703 which consists of $321,000 for fees and $228,703 for disbursements and HST. Its material filed on August 10, 2017 is as follows:

York University will have a chance to file written submissions in response. It may be noted that cost recovery in the Federal Court is normally only a portion of the party’s actual costs. It also may be noted that cost recovery normally proceeds even while an appeal is pending, unless there is a stay order in place and this is rare. Apparently, York has made no attempt to stay the costs order process or any other aspect of Justice Phelan’s judgment.

York’s costs will not become public unless and until it succeeds on appeal and gets an order for costs below and files material in support of its costs claim. What we do know so far is that in December 2015, it was estimated that this litigation would cost York and contributing institutions “hundreds of thousands of dollars, if not a million”, according to York GC Maureen Armstrong in an interview reported on December 29, 2015.  I have no information as to whether that estimate is still valid.

Access Copyright is seeking a lump-sum award approximating 50% of the expenses incurred by it to employ its salaried litigation counsel in this litigation and 100% of its out-of-pocket disbursements. The judgment lists three counsel for Access Copyright. By comparison, York University has five counsel listed in the judgment from a large outside law firm.

For those interested in how this case unfolded, there are some interesting details in Roanie Levy’s affidavit.

HPK


Friday, August 11, 2017

Access Copyright Seeks ~$550,000 in Costs from York U for Phase I of Federal Court Litigation

On August 10, 2017 Access Copyright filed a motion for costs which appears on the docket as follows:

Notice of Motion contained within a Motion Record on behalf of Plaintiff in writing to be placed before the Court in Ottawa for an Order awarding the plainff a lump sum of $549,703 in accordance with the award of of costs made in its favour in the Judgment issued 12-JUL-2017; and such further relief filed on 10-AUG-2017
(highlight added) 

I will likely have more to say about this in due course. But, for the moment, suffice it to say that this sought-after figure of ~$550,000 is only for Phase I and, of course, does not include any potential damages. 

HPK


My Current Personal Inputs re NAFTA Renegotiations Set to Start August 16, 2017


With the NAFTA renegotiation set to start on August 16, 2017, I am posting two of my own personal inputs:


HPK

Thursday, July 27, 2017

Access Copyright Proposed Post-Secondary Tariffs 2018-2020

Access Copyright has filed for a proposed Post-Secondary tariff for 2018-2020. Meanwhile, the Copyright Board has still not ruled on the proposed tariffs from 2011-2017. Meanwhile, one would expect that York University will appeal and even seek to stay the recent Federal Court decision and that there may be interventions to assist the Court.  See my comments on Prof. Katz’s comments and questions, to which I link, concerning this ruling here.

So, meanwhile, here are copies of what I know to have been filed at the Copyright Board in time for the July 19, 2017 deadline:

No further comments at this time…


HPK

PS - I've just received this objection from Mr. Sean Maguire, a post-secondary student.