Copyright - News

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

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. ...

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.

The Supreme Court of Canada issued its ruling in Rogers Communications Inc v Voltage Pictures LLC, 2018 SCC 38, today, the latest installment in a long series of ongoing efforts by Voltage to establish a controversial mass copyright litigation model in Canada and the first decision to meaningfully interpret Canada's notice-and-notice regime. As CIPPIC argued in its intervention, which was ably prepared by our external counsel, Jeremy de Beer and Bram Abramson, the decision under appeal discouraged ISPs from conducting rigorous quality assurance checks necessary to reduce mis-identification of customers accused of copyright infringement. It also placed the cost burden of increasingly expansive copyright litigation models on customers of ISPs. All this, in turn, jeopardizes privacy rights of mis-identified customers; exposes innocent individuals to legal threats and costly lawsuits; raises Canada's Internet access fees (already amongst the highest in the world) even higher; and undermines competition by disproportionately impacting smaller ISPs who are less able to diffuse the costs of robust quality assurance.

The ruling narrowed a prohibition, imposed by the Federal Court of Appeal, on any cost recovery for quality assurance protocols employed by ISPs when compelled to identify customers in the context of a copyright lawsuit. The court held that ISPs will be permitted to recover some (but not all) of these costs, sending the matter back to the Federal Court for determination of what specific quality assurance protocols are reasonable and non-duplicative. This, in turn, removes cost-based disincentives to adopt robust quality assurance protocols by ISPs.

Image credit: smileycreek, "Don't Feed The Trolls", October 4, 2014, Flickr, CC-BY-NC-SA 2.0.