Copyright - News

  • – 2021-07-30 –

    The Supreme Court of Canada today released its decision in York University v. Access Copyright, 2021 SCC 32.  The case addressed two issues: whether Access Copyright’s Copyright Board tariff is mandatory, and whether copying by York pursuant to its Guidelines constitutes fair dealing.  Both courts below had ruled the tariff not mandatory and the Guidelines unfair.

    In a unanimous decision penned by Justice Abella (in her last case on the bench), the Court found that the tariff was not mandatory and so was unenforceable against York, and in light of the absence of any real legal issue between York and Access Copyright, that it would be inappropriate to decide the fair dealing issue. 

    However, the Court cautioned that this result should not “should not be construed as endorsing the reasoning of” the courts below, citing “some significant jurisprudential problems with those aspects of their judgments that warrant comment.”  The Court went on to “correct” those “errors” [para. 87-88]

    Highlights of that analysis include:

  • – 2021-06-23 –

    CIPPIC is seeking an energetic and enthusiastic early career lawyer to support our public interest mandate in the area of copyright law and policy.

    CIPPIC’s inaugural Copyright Law and Policy Fellow will work closely with CIPPIC’s team of staff lawyers and student interns on a range of copyright law and policy matters in Canada and beyond. Specifically, the Fellow will: 

    • provide legal support to libraries and archives in Canada and other countries to support their efforts to digitize and otherwise improve the accessibility of their collections;
    • work with organizations promoting greater accessibility to copyrighted works to address legal questions;
    • develop guides and other educational materials on copyright law and policy to benefit a range of stakeholders;
    • support CIPPIC's staff lawyers in preparing submissions to courts, government consultative processes, and other bodies on questions of copyright law and policy.

    Application Deadline Extended: July 30, 2021

  • – 2021-04-26 –

    supreme court of canada
    "supreme court of canada" by jacob earl is licensed under CC BY-NC-ND 2.0

    CIPPIC has filed its intervener factum in the Supreme Court in York University v Access Copyright, SCC No, 39222, an important case addressing the scope of educational fair dealing. CIPPIC argues that a purposive interpretation of fair dealing that embodies Charter values:/p>

    • recognizes that copyright is right to exclude, not simply be paid;
    • identifies the relevant perspective as that of the ultimate user;
    • recognizes universities’ unique role as cradles of authorship and innovation; 
    • appreciates educational institutions' role in society where truth is contested; and
    • appreciates that intermediaries and commercial actors are aspects of marketplaces that facilitate the socially beneficial exercise of both owners’ and users’ rights.

    David Fewer acted for CIPPIC.  CIPPIC was supported by a broad team of students, including articling student Bo Kruk and interns Sarah Crothers, Tina Dekker, Matthew Akl, and research assistant Courtney Wong.

    The hearing of this appeal is currently set for May 21, 2021.

  • – 2021-04-01 –

    CIPPIC’s submission (The Public's Domain) to the government consultation on copyright term extension places the public domain at the heart of Canada’s copyright system.  Given the costs of term extension to Canada’s copyright ecosystem, CIPPIC argues for a form of term extension that offers something back in the form of a registry of works.  Copyright is rare among forms of intellectual property in that protection arises automatically without the need to declare one’s rights.  This means that copyright lacks a functional registry akin to the Patent Registry or the Trademarks Registry.  A Copyright Registry would provide Canadians with greater notice of both protected content and content soon to join the public domain.

    CIPPIC articling student Bo Kruk co-authored the submission with David Fewer and with research assistance from CIPPIC interne Nadine Eltawdy.

  • – 2020-07-02 –

    CIPPIC was granted leave to intervene before the Federal Court of Appeal in Teksavvy Solutions Inc v Bell Media Inc, FCA File No A-440-19, an appeal of an order compelling Canada's ISPs to block access to a website accused of copyright infringement. The order under appeal is novel, and if approved will have far-reaching implications for free expression and balanced copyright, creating an extraordinary new censorship power that the applicants have sought in trade negotiations, at parliament, and at the CRTC, without success.

    The intervention order itself adopts a thoughtful, but decidedly novel approach in its application of the Federal Court of Appeal's uniquely rigorous test for public interest intervention. As set out in CIPPIC's initial motion to intervene, dated February 3, 2020 (paras 5-12) and affirmed by the case management judge in a brief and pointed direction dated April 24, 2020, the test for intervention requires extensive coordination among different public interest interveners to avoid duplication. In light of the interveners' demonstrably successful efforts to coordinate, the Court took the exceptional step of merging many of the parties, allowing CIPPIC to file a joint intervention with our close colleagues at the Canadian Internet Registration Authority (CIRA). The British Columbia Civil Liberties Association (BCCLA) was also granted leave to elaborate on its detailed proposed submissions regarding the need to account for freedom of expression when issuing orders that interfere with access to expressive content. The intervention order is also innovative for its willingness to depart from a categorical approach to classifying proposed interveners, and instead consider the particular characteristics of specific parties and their historical record of intervention. This allows for a more thoughtful and contextual approach to granting intervener status, while interveners will need to be more cautious in implementing the Court's conditions of intervention or risk developing a negative track record and threatening future interventions. Three other parties seeking to intervene on behalf of intellectual property rights holders were also granted leave to intervene, and merged into a single intervention. CIPPIC is represented by Alyssa Tomkins and James Plotkin of Caza Saikaley, SRL/LLP. UPDATE: On August 3, 2020, CIPPIC and CIRA filed their joint Facta. A hearing has not yet been scheduled in this matter.

    Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0

  • – 2019-12-06 –

    The appeal of Cooperstock v United Airlines, Inc., scheduled to be heard Tuesday, December 10, has been discontinued as the parties have reached a settlement.

    While undoubtedly a positive development for the parties - who bear the cost and stress of the litigation - the development leaves intact the troubling lower court decision in United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII).  Mr. Cooperstock operated Untied.com, a consumer criticism site targeting the plaintiff, United Airlines.  United, after years of tolerating Mr. Cooperstock's stings, in 2012 concluded that it could take no more and filed a statement of claim alleging copyright infringement and a number of violations of its rights under the Trademarks Act.  The lower court agreed sided with United in a controversial opinion. Mr. Cooperstock appealed.

  • – 2019-11-13 –

    Justice Boswell of the Federal Court of Canada has denied Voltage’s motion to certify a “reverse” class proceeding for copyright infringement against a class of unidentified internet subscribers and alleged BitTorrent users.

    CIPPIC intervened in the motion, arguing among other things that Voltage’s pleadings did not disclose a reasonable cause of action and that a class proceeding was not preferable given that it would amount to individual factual inquiries specific to each class member.  The Court agreed on both counts.  In rejecting the motion, Justice Boswell concluded:

    [77]  I agree with CIPPIC’s submissions that Voltage’s pleadings do not disclose a reasonable cause of action with respect to primary infringement.  While Voltage alleges that its forensic software identified a direct infringement in [sic] Voltage’s films, Voltage has failed to identify a Direct Infringer in its amended notice of application. ... 

    [...]

    [160]  A class proceeding is not a preferable procedure for the just and efficient resolution of any common issues which may exist.  The proposed proceeding would require multiple individual fact-findings for each class member on almost every issue. ...

  • – 2019-08-06 –

    The Federal Court of Canada has set Rogers' "reasonable costs" of compliance with a Norwich Order in Voltage's reverse class proceeding.  The decision caps a long-running dispute over the proportion of ISP costs copyright claimants must pay ISPs to comply with Norwich orders obliging ISPs to hand over subscriber information to copyright claimants alleging infringement.  Following a 2018 Supreme Court of Canada decision clarifying the range of costs ISPs may ask claimants to pay for subscriber data, Rogers had asked for costs of $100 per subscriber.  Voltage had asked for costs to be set at close to a third of that figure.  The Court split the difference, undertaking a detailed calculation based upon the time and employee costs involved to arrive at the figure of $67.23, plus HST, for the IP address lookup of the single subscriber involved.

  • – 2019-03-28 –

    On Friday, March 29, CIPPIC will appear as an intervener before the Supreme Court of Canada in the hearing of Keatley Surveying Ltd. v. Teranet Inc., SCC Case No. 37863.  The case addresses the scope and reach of “Crown copyright” and will impact many mass digitization projects and open government initiatives.

    This case stems from a class action involving the management of the Province of Ontario’s electronic land registry system. The public is currently able to obtain copies of land surveys and other documents through this system for a fee, but no money is distributed to the surveyors who prepared the documents in the first place. The case is being brought forward by Keatley Surveying Ltd. on behalf of approximately 350 land surveyors whose plans were scanned and made available online.

    CIPPIC's intervention argues that the government cannot take away authors’ rights by republishing other peoples’ work. CIPPIC says that Crown copyright “is not a way for the government to expropriate, in a formal or colloquial sense, other people’s copyrights,” and “invites a more common-sense approach” to interpreting Crown copyright.

    Professor Jeremy de Beer and CIPPIC Director David Fewer are acting for CIPPIC.

  • – 2018-12-11 –

    CIPPIC's Submissions on Industry Canada's statutory review of the Copyright Act focus on the need to restore balance to the legislation in light of the expansion of owner rights and remedies in CUSMA, the Canada-United States-Mexico trade agreement signed in the summer of 2018.

    The 2018 review of the Copyright Act is an opportunity to address the needs of Canadian creators and Canadian content users, while strengthening the public domain. In light of the recent CUSMA treaty and its benefits for copyright holders and intermediaries, we ask the Committee to engage in this review with a view to restoring the essential balance at the heart of copyright policy.

    Read CIPPIC's submission: